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Nelson v. University of Hawaii12/11/2001
but also supports the "totality of the circumstances" approach. In Ellison, which this court relied heavily on in Steinberg, the Ninth Circuit directly addressed the variation between the United States Supreme Court's language in Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986) (conduct must "alter the conditions of [the victim's] employment and create an abusive working environment"), and the EEOC guideline language (conduct "creates an intimidating, hostile, or offensive environment or where it unreasonably interferes with work performance"). The Ellison court reconciled the supposed difference by pointing out that the EEOC guideline language is actually "encompassed" within the Meritor language:
We do not think that these standards are inconsistent. The Supreme Court used the words "abusive" and "hostile" synonymously in Meritor. The Meritor Court also approved of and paid detailed attention to the EEOC's guidelines, and it implicitly adopted the EEOC's position that sexual harassment which unreasonably interferes with work performance violates Title VII. Similarly, although we only expressly incorporated [the language from Meritor], that part also encompasses the EEOC's [guideline language]. Conduct which unreasonably interferes with work performance can alter a condition of employment and create an abusive working environment. 924 F.2d at 877 (emphases added).
It is significant that the Ninth Circuit specified "can," rather than "can, by itself." In this way, rather than declaring, as does the majority, that conduct which unreasonably interferes with work performance, by itself, is sufficient to establish a prima facie case, the Ninth Circuit actually noted only the possibility that it may. Such distinction centers on whether the "totality of the circumstances" is to be considered. Thus, the Ellison court explained that "conduct which unreasonably interferes with work performance" is included as a factor that "alter a condition of employment and create an abusive working environment." Depending on the totality of the circumstances and consideration of the record as a whole, which would include "whether such conduct created an intimidating, hostile, or offensive work environment," the fact that the "conduct unreasonably interfered with work performance" may or may not present a prima facie case for sexual harassment.
Most recently in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the United States Supreme Court observed, " n Meritor, we held that sexual harassment so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment violates Title VII." Id. at 786 (quotation and internal quotation marks omitted) (brackets in original). The Court then clarified that courts should "determine whether an environment is sufficiently hostile or abusive by 'looking at all the circumstances,' including the 'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Id. at 787-88 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)) (emphases added).
To reiterate "what was plain from previous decisions," the United States Supreme Court in its most recent decision again stated that
orkplace conduct is not measured in isolation; instead, "whether an environment is sufficiently hostile or abusive" must be judged "by 'looking at all the circumstances,' including the 'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Hawaii Personal Injury Attorneys
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