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Arquero v. Hilton Hawaiian Village LLC6/10/2004
e; (4) the conduct had the purpose or effect of either: (a) unreasonably interfering with the claimant's work performance, or (b) creating an intimidating, hostile, or offensive work environment; (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.
In addition, with regard to the third element of the claim, we observe that the required showing of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct. For example, a single severe act can be enough to establish a claim, and multiple incidents, each of which may not be severe when considered individually, can be enough to establish a claim when evaluated collectively.
Moreover, we emphasize that, to establish the last two elements of a HESH claim, it is not necessary for the claimant to prove that he or she has suffered tangible physical or psychological harm: the claimant's perception is the harm as long as the perception is objectively reasonable. See Harris[ v. Forklift Systems, Inc., 510 U.S. 17 (1993)].
Finally, we emphasize that, in evaluating a HESH claim for purposes of dismissal, summary judgment or judgment as a matter of law, or in instructing juries, courts must "look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred." Steinberg[ v. Hoshijo], 88 Hawaii [10,] 18, 960 P.2d [1218,] 1226 [(1998)] (citing HAR [Hawaii Administrative Rules] § 12-46-109(b)).
Nelson v. Univ. of Hawaii, 97 Hawaii 376, 390-91, 38 P.3d 95, 109-110 (2001) (footnote omitted).
The Nelson test, if satisfied, establishes the existence of actionable sexual harassment. Once the plaintiff proves that she or he has been the victim of actionable sexual harassment, however, an employer can still avoid liability by demonstrating that it took "immediate and appropriate corrective action" that was "reasonably calculated to prevent future harassment." HAR § 12-46-109(d); Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 976 (7th Cir. 2004) ("An employer's response to alleged instances of employee harassment must be reasonably calculated to prevent further harassment under the particular facts and circumstances of the case at the time the allegations are made." (Quoting Berry v. Delta Airlines, Inc., 260 F.3d 803, 811 (7th Cir. 2001).) (Block quote formatting omitted.)). See also McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1120 (9th Cir. 2004) ("[The employer] may nonetheless avoid liability for such harassment by undertaking remedial measures 'reasonably calculated to end the harassment.'" (Quoting Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991).)); E.E.O.C. v. Harbert-Yeargin, Inc., 266 F.3d 498, 518 (6th Cir. 2001) ("For an employer to be liable for the sexual harassment of an employee by a co-worker, the harassed employee must show that the employer both (1) knew or should have known of the harassment and (2) failed to take prompt and appropriate corrective action.").
Arquero argues that Hilton is liable for co-worker sexual harassment for Incident #2 because its actions subsequent to Incident #1 were not reasonably calculated to end Rodas's harassing conduct (i.e., Hilton did not take steps reasonably calculated to prevent Incident #2). Specifically, Arquero contends that there is a genuine issue of material fact as to whether Hilton took appropriate corrective action because of Arquero's claim that Rodas did not take Assistant Manager Short's oral warning seriously. Hilton, on the other hand, argues that I
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