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Nelson v. University of Hawaii12/11/2001
ing sexual harassment.
"When jury instructions, or the omission thereof, are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading." Hirahara v. Tanaka, 87 Hawaii 460, 462, 959 P.2d 830, 832, reconsideration denied, 87 Hawaii 460, 959 P.2d 830 (1998) (citing Craft v. Peebles, 78 Hawaii 287, 302, 893 P.2d 138, 153 (1995)). "Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial." Id. at 463, 959 P.2d at 833 (citing Tabieros v. Clark Equip. Co., 85 Hawaii 336, 350, 944 P.2d 1279, 1293 (1997)).
1. Hawaii Law
Nelson brought a sexual harassment claim pursuant to HRS § 378-2, which provides:
It shall be an unlawful discriminatory practice . . . ecause of . . . sex . . . or any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment[.]
Sexual harassment is a form of sex discrimination prohibited by HRS § 378-2. See Hawaii Administrative Rules (HAR) § 12-46-109(a) (1998). Generally, there are two different forms of sexual harassment: "quid pro quo" and "hostile environment." See Steinberg v. Hoshijo, 88 Hawaii 10, 18 n.11, 960 P.2d 1218, 1226 n.11, reconsideration denied, 88 Hawaii 10, 960 P.2d 1218 (1998); Ellison v. Brady, 924 F.2d 872, 875 (9th Cir.1991); see also HAR § 12-46-109(a). "Quid pro quo" cases generally involve allegations that an employer conditioned employment benefits on sexual favors. Ellison, 924 F.2d at 875. "Hostile environment" sexual harassment (HESH) is defined as:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature constitute sexual harassment when . . . 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. HAR § 12-46-109(a)(3) (emphases added).
The aforementioned definition of HESH is virtually identical to the corresponding federal regulations under Title VII of the Civil Rights Act, adopted by the EEOC. See 29 C.F.R. § 1604.11(a)(3) (2000).
This court has held that a HESH claim exists when an employee can show:
1. that he or she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature,
2. that this conduct was unwelcome; and
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 environment. Steinberg, 88 Hawaii at 18, 960 P.2d at 1226 (citing HAR § 12-46-109) (emphases added).
The aforementioned holding in Steinberg tracks the language of HAR § 12-46-109(a)(3) and makes clear that a plaintiff can establish a claim by showing that the alleged sexual conduct had the purpose or effect of either (a) unreasonably interfering with work performance, or (b) creating an intimidating, hostile, or offensive work environment.
In addition to the foregoing elements, a plaintiff is also required to establish that the harassing conduct was "severe or pervasive." See Steinberg, 88 Hawaii at 18, 960 P.2d at 1226. However, in discussing this "severe or pervasive" requirement, state and federal courts and agencies have used som
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