 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Arquero v. Hilton Hawaiian Village LLC6/10/2004
ncident #1 was not sufficiently severe so as to constitute actionable sexual harassment, such that the reasonableness of its response is irrelevant. Hilton also argues that, even if Incident #1 was actionable sexual harassment, its response was reasonably calculated to end Rodas's harassing behavior.
Based on the following, we hold that Incident #1 was sufficiently "severe" under the Nelson test to constitute actionable sexual harassment. Furthermore, there is a genuine issue of material fact as to whether Hilton's response was reasonably calculated to end the harassment.
B. Incident #1 Was "Severe."
1. Weight of Federal Precedent
In interpreting HRS § 378-2, we have held that federal courts' interpretations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (2004), are persuasive, but not controlling. See Shoppe v. Gucci America, Inc., 94 Hawaii 368, 377, 14 P.3d 1049, 1058 (2000) ("In interpreting HRS § 378-2 in the context of race and gender discrimination, we have previously looked to the interpretations of analogous federal laws by the federal courts for guidance."); Furukawa v. Honolulu Zoological Soc., 85 Hawaii 7, 13, 936 P.2d 643, 649 (1997) ("Of course, a federal court's interpretation of Title VII is not binding on this court's interpretation of civil rights laws adopted by the Hawaii legislature.").
2. Federal Courts' Interpretations of the "Severe and Pervasive" Requirement
In Clark County School Dist. v. Breeden, 532 U.S. 268, 270 (2001), the United States Supreme Court stated that "sexual harassment is actionable under Title VII only if it is so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." (Citations and internal quotation signals omitted.) (Alteration in original.) See also Oncale v. Sundowner Offshore Serv., 523 U.S. 75, 78 (1998) ("'When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.'" (Quoting Harris v. Forklift Sys., 510 U.S. 17, 21 (1993).)).
Using this standard, federal courts look at the severity of the conduct in conjunction with its effect on the victim's employment. For example, in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), a female employee was sexually assaulted by a male co-worker who forced his hand underneath the female employee's sweater and bra and fondled her bare breast. Id. at 921. The next day, the employer put the harassing co-worker on administrative leave. Id. at 921-22. The harassing co-worker resigned after the employer began proceedings to terminate his employment. Id. at 922. The Ninth Circuit concluded that this single incident of sexual assault did not constitute actionable sexual harassment:
Because only the employer can change the terms and conditions of employment, an isolated incident of harassment by a co-worker will rarely (if ever) give rise to a reasonable fear that sexual harassment has become a permanent feature of the employment relationship. By hypothesis, the employer will have had no advance notice and therefore cannot have sanctioned the harassment beforehand. And, if the employer takes appropriate corrective action, it will not have ratified the conduct. In such circumstances, it becomes difficult to say that a reasonable victim would feel that the terms and conditions of her employment have changed as a result of the misconduct.
Which is why [the co-worker's] conduct, while relevant, is not the primary focus of our inquiry. No one coul
Page 1 2 3 4 5 6 7 8 9 Hawaii Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|