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Nelson v. University of Hawaii12/11/2001
interferes with an employee's work performance.'" Clark County School Dist. v. Breeden, 562 U.S. 268 (2001) (quoting Faragher, 524 U.S. at 786-88 (citations omitted)).
Therefore, the Court expressly noted that whether conduct "unreasonably interferes with an employee's work performance" is not an "alternative means" of establishing a HESH claim, but rather a factor to be considered in examining the "totality of the circumstances" regarding such claim.
Similarly, the Ninth Circuit in Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000), examined whether the plaintiff, for purposes of summary judgment, had presented evidence sufficient to raise a genuine issue of fact as to his being subjected to a hostile work environment after he complained about the treatment of women in his workplace. The Ninth Circuit first stated that, " o determine whether an environment is sufficiently hostile, we look to the totality of 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 1245 (quoting Faragher, 524 U.S. at 787 (citations omitted)) (emphases added). Then, the Ninth Circuit evaluated the totality of the circumstances in that case, including (a) whether the conduct unreasonably interfered with work performance and (b) whether the conduct created an intimidating, hostile, or offensive work environment:
Here, after [Plaintiff] made his complaint about the treatment of women at the Willits Post Office, he was targeted for verbal abuse related to those complaints for a period lasting over one and half years. His supervisors regularly yelled at him during staff meetings; they called him a "liar," a "troublemaker," and a "rabble rouser," and told him to "shut up." Additionally, [Plaintiff] was subjected to a number of pranks, and was falsely accused of misconduct.
Not only did his supervisors make it harder for [Plaintiff] to complete his own tasks, they made [Plaintiff] an object lesson about the perils of complaining about sexual harassment in the workplace. [Plaintiff's supervisors] made it clear to the other staff that disadvantageous changes in management style were due to [Plaintiff's] complaints. . . . [Plaintiff's supervisors] also fostered animus in other employees whose working conditions were affected. Other employees began to distance themselves from [Plaintiff], and some stopped talking to him. In November of 1995, the difficulties at work rose to such a level that [Plaintiff] took stress leave from his job .
We conclude that [Plaintiff] has presented evidence that is, for purposes of summary judgment, sufficient to raise a genuine issue of facts as to whether he was subjected to a hostile work environment. Id. at 1245-46.
Thus, the Ninth Circuit assessed the totality of the circumstances by analyzing both factor (a) ("his supervisors ma it harder for [plaintiff] to complete his own tasks") and factor (b) (verbal abuse, pranks, making plaintiff an "object lesson"). Moreover, such analysis indicates that both factors are often difficult to separate and evaluate in isolation.
Such dictates by Hawaii and federal case law, in addition to the established practice of the HCRC, require the "totality of the circumstances" approach. Even the majority concedes as much. In conclusion, after justifying its proposed "separate element/alternative means" approach, the majority surprisingly embraces the "totality of the circumstances" approach. Majority at 33 (" e also emphasize that . . . courts must 'look at the record as a whole and at the totalit
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