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Arquero v. Hilton Hawaiian Village LLC6/10/2004
d reasonably dispute that what [the co-worker] did was egregious; he was, after all, immediately removed from his job and prosecuted. He spent time in jail. But it is the [employer], and not [the co-worker], who is the defendant here. To hold her employer liable for sexual harassment under Title VII, [the victim] must show that she reasonably feared she would be subject to such misconduct in the future because the city encouraged or tolerated [the co-worker's] harassment.
Id. at 924 (footnote omitted). Thus, the federal courts look at the effect the harassing conduct has on the victim's employment, rather than conducting separate inquiries into the severity of the conduct and the effect of that conduct on the employee's workplace. See id. at 926 ("Utilizing the Harris factors of frequency, severity and intensity of interference with working conditions, we cannot say that a reasonable woman in [the employee's] position would consider the terms and conditions of her employment altered by [the co-worker's] actions. [The employee] was harassed on a single occasion for a matter of minutes in a way that did not impair her ability to do her job in the long-term[.] (Footnote omitted.)). See also Oncale, 523 U.S. at 81 ("The prohibition of harassment on the basis of sex . . . forbids only behavior so objectively offensive as to alter the 'conditions' of the victim's employment. 'Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive--is beyond Title VII's purview.'" (Quoting Harris, 510 U.S. at 21.)); Meriwether v. Caraustar Packaging Co., 326 F.3d 990, 993 (8th Cir. 2003) (holding that a single incident in which a co-worker squeezed an employee's buttocks was not sufficiently severe or pervasive so as to "alter the conditions of [the victim's] employment and create an abusive working environment").
3. Distinction Between Federal Standard and Hawaii Standard
This court also requires conduct to be "severe and pervasive" to constitute actionable sexual harassment. See Nelson v. Univ. of Hawaii, 97 Hawaii 376, 390, 38 P.3d 95, 109 (2001). However, in contrast to federal courts, this court's analysis of whether particular harassing conduct was "severe and pervasive" is separate and distinct from the remaining requirements of a plaintiff's claim: "it is the harasser's conduct which must be severe or pervasive, 'not its effect on the plaintiff or on the work environment.'" Id. (quoting Hurley v. Atlantic City Police Dept., 174 F.3d 95, 115 (3d Cir. 1999)). A finding that specific conduct was "severe or pervasive" does not require a finding that "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[.]" Nelson at 390, 38 P.3d at 109 (emphases omitted from original).
Therefore, according to Nelson, we separate the severity and pervasiveness of the conduct from the effect that conduct had on the employee's work environment. As such, the relevant inquiry is not whether the conduct was so severe or pervasive as to create an abusive work environment, but rather is whether (1) the conduct was severe or pervasive and (2) the conduct had the purpose or effect of affecting the claimant's employment (in the manner described supra). The circuit court found only that "genuine issues of material fact have not been presented to demonstrate that the initial touching incident was sufficiently severe to constitute sexual harassment." Thus, the circuit court appeared to rest its conclusion on the severity of the conduct, rather than on the effect the c
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