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Nelson v. University of Hawaii12/11/2001
y of the circumstances . . . .'").
III.
Indeed, the overly mechanistic and formulaic approach adopted by the majority would exclude potentially meritorious plaintiffs. First, suppose a plaintiff fell just short of establishing (a) (alleged conduct "unreasonably interfered with work performance"). In addition, this same plaintiff fell just short of establishing (b) (alleged conduct "created an intimidating, hostile, or offensive work environment"). The application of the rigid "separate element/alternative means" method would absolutely bar this plaintiff from her day in court. On the other hand, under the flexible "totality of the circumstances" analysis, which examines the record as a whole, including both (a) and (b) as factors, this plaintiff would likely have demonstrated conduct that is sufficiently "severe or pervasive" to qualify as a HESH claim.
Second, as the majority explains, the conduct must be evaluated both from the subjective standpoint of the claimant and from an objective standpoint of a reasonable person of the claimant's gender in the claimant's position. Majority at 32 (holding that the claimant must show, inter alia, "(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."). Assume, for example, that a trial court found that the alleged conduct did not unreasonably interfere with the plaintiff's work performance (subjective aspect of (a)), although a reasonable woman would have found that such conduct unreasonably interfered with her work performance (objective aspect of (a)). On the other hand, the trial court also found that the plaintiff believed the conduct created an offensive work environment (subjective aspect of (b)), but that a reasonable woman would not have found such conduct created an offensive work environment (objective aspect of (b)). In other words:
Subjective Standpoint
("plaintiff") Objective
Standpoint ("reasonable woman")
(a) Conduct "unreasonably interfering with an individual's work performance" No Yes
(b) Conduct "creating an intimidating, hostile, or offensive work environment" Yes No
Under the "separate element/alternative means" approach, such plaintiff would fail to establish a prima facie case and would be categorically barred from bringing suit against her employer. In contrast, the "totality of the circumstances" approach would likely allow such plaintiff to have her day in court. The majority argues that "the claimant's perception [must be] objectively reasonable." Majority at 32. And I agree. But that in no way contradicts examining (a) and (b) from both a subjective and objective standpoint. Indeed, it appears necessary. For example, to determine whether claimant's subjective viewpoint that conduct unreasonably interfered with her work performance is objectively reasonable, one would engage in a two-step analysis. First, one would examine whether claimant actually considered the conduct to unreasonably interfere with her work performance. Second, one would determine whether a reasonable woman would have considered the conduct to unreasonably interfere with her work performance.
A critical examination of my hypothetical only confirms my point that under the majority's separate element/alternative means method, such a claimant would fail and abandoned by the discrimination statute that is supposed to be "remedial and humanitarian" and "generously construed . . . to afford claimant hearings on the merits and to prevent the loss of valuable rights." Puchert v. Agsalud, 67 H
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