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Nelson v. University of Hawaii12/11/2001
tality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred." Steinberg, 88 Hawaii at 18, 960 P.2d at 1226 (citing HAR § 12-46-109(b) ). The "clarified" standard set forth above is consistent with HAR § 12-46-109(a) and the HCRC's interpretation of the law, see discussion supra, which should be given due deference. See Hyatt Corp. v. Honolulu Liquor Comm'n, 69 Haw. 238, 242-43, 738 P.2d 1205, 1208 (" is a well established rule of statutory construction that, where an administrative agency is charged with the responsibility of carrying out the mandate of a statute which contains words of broad and indefinite meaning, courts accord persuasive weight to administrative construction and follow the same, unless the construction is palpably erroneous." (Brackets in original.)), reconsideration denied, 69 Haw. 238, 738 P.2d 1205 (1987). This "clarified" standard is not only consistent with federal law, but, at the same time, avoids the confusing language contained in some of the federal cases.
4. Application of the Correct Standard
In this case, the court instructed the jury that the plaintiff must show that the employer
engaged in harassing conduct directed toward the plaintiff; that sex was a motivating factor for the harassment; that this conduct was unwelcome and sufficiently severe or pervasive that it had the purpose or effect of altering the conditions of Plaintiff's employment and creating an intimidating, hostile, abusive, or offensive working environment; the environment created by the conduct would have been perceived as intimidating, hostile, abusive, or offensive by a reasonable person in the same position as Plaintiff; that Plaintiff did in fact perceive the environment as intimidating, hostile, abusive or offensive; and this environment caused plaintiff injury , damage, loss, or harm.
In order to prevail on a claim of discrimination in the terms and conditions of employment, Plaintiff has the burden of establishing by a preponderance of the evidence that the "terms, conditions or privileges of employment" were altered by creating a work environment that was hostile or abusive. Mere isolated incidents of harassment are not sufficient.
In determining whether an environment is hostile or abusive, you must consider all the circumstances. These may include frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with Plaintiff's work performance.
Instruction No. 9.
As previously stated, Nelson contends that the foregoing Instruction No. 9 was confusing and erroneous. For the reasons set forth below, we agree with Nelson.
First, the trial court instructed the jury, without clarification, that the plaintiff must show that "sex was a motivating factor for the harassment." Instruction No. 9 incorrectly implies that the plaintiff must show that the offender was motivated by a desire to have sex with the victim. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998) (" arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex."). Inasmuch as Nelson admitted that neither Dr. Ho nor Dr. Buxton made any sexual advances toward her, this instruction could have affected the jury's verdict.
Second, Instruction No. 9 did not accurately reflect the elements of a HESH claim under Hawaii law. See Steinberg, 88 Hawaii at 18, 960 P.2d at 1226; HAR § 12-46-109(a)(3); see also supra section II.B.3. Nelson was required to establish, as one element of a HESH
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