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Nelson v. University of Hawaii12/11/2001
" analysis follows the administrative rules and both Hawaii and federal case law. First, the Hawaii Civil Rights Commission (HCRC), after outlining the required showing for sexual harassment, which admittedly appears to support the "alternative means" analysis (" hat conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment"), immediately clarifies in the following subsection that the conduct must be examined in the context of the "record as a whole" and the "totality of the circumstances":
In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.
Hawaii Administrative Rules (HAR) § 12-46-109(b). Such language is identical to its federal regulatory counterpart, as promulgated by the Equal Employment Opportunity Commission (EEOC). See 29 C.F.R. § 1604.11(b). To comply with our well-established rule of statutory construction -- that where an administrative agency is charged with overseeing and implementing a particular statutory scheme, courts generally accord persuasive weight to such administrative construction, see Sam Teague, Ltd. v. Hawaii Civil Rights Comm'n, 89 Hawaii 269, 276 n.2, 971 P.2d 1104, 1111 n.2 (1999) (citation omitted) -- this court must read the HCRC's rules as a whole, not selectively. Thus, the appropriate framework for establishing a HESH claim is determined by examining all relevant subsections of the statute, not merely one subsection. Indeed, the HCRC, in a case quoted by the majority, confirms the use of the "totality of the circumstances," rather than the "separate element/alternative means," approach: "The conduct was sufficiently severe or pervasive to alter the conditions of employment, such as having the purpose or effect of unreasonably interfering with an individual's work performance or by creating an intimidating, hostile or offensive working environment." Majority at 24-25 (quoting Santos v. Niimi, No. 91-001-E-SH at 2 (HCRC Final Decision Jan. 25, 1993) (citations omitted)) (emphasis added). In this way, the HCRC noted that many factors should be considered -- not merely (a) or (b) in isolation -- to determine whether the conduct element was sufficiently severe or pervasive. Second, in Steinberg v. Hoshijo, 88 Hawaii 10, 18, 960 P.2d 1218, 1226 (1998), this court detailed the elements required in establishing a HESH claim by citing to HAR § 12-46-109. In doing so, this court properly parsed all relevant subsections of the statute and expressly pointed out that " n determining whether alleged conduct constitutes sexual harassment, HAR § 12-46-109(b) instructs the HCRC to 'look at the record as a whole and at the totality 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.
Moreover, Steinberg relies on federal case law, specifically Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991), which, as described infra, also supports the "totality of the circumstances" approach with respect to the severe or pervasive conduct element.
The majority here found this additional and separate element to a HESH claim in Steinberg:
3. that the conduct had the purpose or effect of either: a. unreasonably interfering with an individual's work performance or b. creating an intimidating, hostile, or offensive work en
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