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Arquero v. Hilton Hawaiian Village LLC6/10/2004
onduct had on Arquero's work environment or work performance. In so concluding, the circuit court utilized an unduly restrictive view of the phrase "severe or pervasive." See Nelson, 97 Hawaii at 390, 38 P.3d at 109 ("Essentially, the 'severe or pervasive' requirement reflects a general concern that an employer not be held liable for trivial conduct." (Citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).)).
4. Application to the Instant Case
Incident #1, in which Rodas grabbed Arquero's buttock, was "severe." Rodas's alleged conduct appears to constitute sexual assault in the fourth degree, in violation of HRS § 707-733(1)(a) (1993). The conduct at issue may not have "had the purpose or effect of either: (a) unreasonably interfering with [Arquero's] work performance, or (b) creating an intimidating, hostile, or offensive work environment." Nelson, 97 Hawaii at 390, 38 P.3d at 109 (emphases omitted from original). However, the issue is whether Rodas's conduct was severe; given that Rodas sexually assaulted Arquero (rather than engaging in name-calling or other verbal harassment), this conduct satisfies the Nelson severity prong. This comports with a general distinction between name-calling and physical contact set forth in Harris and discussed by many federal courts in analyzing whether particular conduct is "severe and pervasive." See, e.g., Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1243 (10th Cir. 2001) ("There is no 'mathematically precise test' for determining whether the conduct is sufficiently severe or pervasive. [Harris, 510 U.S. at 22.] Some factors to be weighed include 'the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' Id. at 23[.]"). Consequently, the circuit court erred in determining that Incident #1 was not sufficiently severe to constitute actionable sexual harassment.
C. Whether Hilton's Response Was Reasonably Calculated To End The Sexual Harassment Is A Question Of Fact.
An employer will be held liable for co-worker sexual harassment only where the employer knew or should have known of that harassment and failed to take steps reasonably calculated to end the harassment. HAR § 12-46-109(d). In the instant case, Hilton argues that even if Incident #1 constituted actionable sexual harassment, Hilton is nevertheless entitled to summary judgment in its favor because it took steps reasonably calculated to end the sexual harassment. Arquero, on the other hand, argues that there is a genuine issue of material fact as to the reasonableness of Hilton's response. Given the particular circumstances of this case, we agree with Arquero and hold that there are genuine issues of material fact as to whether Hilton's response to Incident #1 was reasonably calculated to end Rodas's harassment. Therefore, we reject Hilton's alternative argument for affirming the circuit court's grant of summary judgment.
As the Seventh Circuit Court of Appeals explained:
If an employer takes reasonable steps to discover and rectify the harassment of its employees . . . it has discharged its legal duty. 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. We are not to focus solely upon whether the remedial activity ultimately succeeded, but instead should determine whether the employer's total response was reasonable under the circumstances as then existed.
Wyninger, 361 F.3d at 976 (citations omi
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