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Nelson v. University of Hawaii12/11/2001
ng these two concepts as alternative ways of establishing a claim).
Further, it is the harasser's conduct which must be severe or pervasive, "not its effect on the plaintiff or on the work environment." Hurley v. Atlantic City Police Dept., 174 F.3d 95, 115 (3d Cir. 1999) (citing, inter alia, Ellison, 924 F.2d at 878); Equal Employment Opportunity Comm'n v. Mitsubishi Motor Mfg. of Am., Inc., 990 F. Supp 1059, 1074 n.6 (C.D. Ill. 1998). The focus on the harasser's conduct is also evident from the statement by the court in Ellison that "the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct." See Ellison, 924 F.2d at 878 (emphases added) (citations omitted). Essentially, the "severe or pervasive" requirement reflects a general concern that an employer not be held liable for trivial conduct. See, e.g., Faragher, 524 U.S. at 788 ("A recurring point in [federal cases] is that 'simple teasing,' offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.'" (Citations omitted.)). Despite some of the confusing and inconsistent language used in describing the required showing for a HESH claim, when read in context, the federal decisions support the definition of harassment set forth in the EEOC and the HCRC regulations and do not actually conflict with Hawaii law.
Notwithstanding the above, this court need not resolve any inconsistencies in the federal case law. Nor would it be wise for us to import such confusing or inconsistent language into our case law. Moreover, although "the federal courts' interpretation of Title VII is useful in construing Hawaii employment discrimination law[,]" Sam Teague, Ltd. v. Hawaii Civil Rights Comm'n, 89 Hawaii 269, 281, 971 P.2d 1104, 1116 (1999), it is not controlling.
3. Elements of a Claim
Based on the foregoing, we take this opportunity to clarify the elements of a HESH claim set forth in Steinberg and hold that, in order to establish a HESH claim, the claimant must show that: (1) he or she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct or visual forms of harassment of a sexual nature; (2) the conduct was unwelcome; (3) the conduct was severe or pervasive; (4) the conduct had the purpose or effect of either: (a)unreasonably interfering with the claimant's work performance, or (b) creating an intimidating, hostile, or offensive work environment; (5) the claimant actually perceived the conduct as having such purpose or effect; and (6) the claimant's perception was objectively reasonable to a person of the claimant's gender in the same position as the claimant.
In addition, with regard to the third element of the claim, we observe that the required showing of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct. For example, a single severe act can be enough to establish a claim, and multiple incidents, each of which may not be severe when considered individually, can be enough to establish a claim when evaluated collectively.
Moreover, we emphasize that, to establish the last two elements of a HESH claim, it is not necessary for the claimant to prove that he or she has suffered tangible physical or psychological harm: the claimant's perception is the harm as long as the perception is objectively reasonable. See Harris, supra.
Finally, we emphasize that, in evaluating a HESH claim for purposes of dismissal, summary judgment or judgment as a matter of law, or in instructing juries, courts must "look at the record as a whole and at the to
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