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Nelson v. University of Hawaii12/11/2001
aw. at 36-37, 677 P.2d at 458 (citations omitted).
In sum, the majority's "separate element/alternative means" approach directly contradicts the "remedial and humanitarian nature" of the employment discrimination statutes, which should be "generously construed . . . to afford claimants hearings on the merits and to prevent the loss of valuable rights." Id.
Additionally, the "totality of the circumstances" approach is more flexible and better captures the actual analysis undertaken by courts. Not every observation and evaluation by the court can always be classified simply as either (a) or (b), as required by the "separate element/alternative means" method. The "totality of the circumstances" approach, in contrast, acknowledges the reality of the often complex balancing and weighing of multiple factors in examining the totality of the circumstances. Indeed, the factors to be considered, such as (a) and (b), may be interrelated and difficult to evaluate in isolation. In an attempt to address the reality that conduct made illegal by sexual harassment law frequently defies easy categorization and classification such as (a) and (b), the majority argues that " approach is consistent with the 'totality of the circumstances' approach." Majority at 34 n.13. But such application of the "totality of the circumstances" language from statute and case law defeats the language's very purpose. The majority's requirement is premised on the court's ability to separate (a) and (b), and reify each from the "totality of the circumstances" in a highly hypothetical vacuum.
IV.
In this case, the trial court's jury instruction properly stated that sexual harassment was conduct "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." Moreover, it correctly added that, "in determining whether an environment is hostile or abusive, you must consider all of the circumstances[, including] whether [the conduct] unreasonably interferes with Plaintiff's work performance." (Emphasis added.) Accordingly, I would hold that such instruction -- consistent with the "totality of the circumstances" analysis -- was a proper statement of the law.
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