Steinberg v. Hoshijo6/18/1998
09, sexual harassment on the basis of sex is a violation of chapter 378 of the HRS. Specifically, HAR § 12-46-109 provides in pertinent part:
Sexual Harassment. (a) Harassment on the basis of sex is a violation of chapter 378, HRS. 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:
....
(3) That conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment
To restate, a claim for "hostile environment" sexual harassment 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. In determining whether alleged conduct constitutes sexual harassment, HAR § 12-46-109(b) instructs the HCRC to "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." Additionally, the perspective to be used is that of the victim. Oncale v. Sundowner Offshore Servs., Inc., U.S. , , 118 S. Ct. 998, 1003 (1998); Ellison, 924 F.2d at 878. Thus, if the complainant is a woman, the objective standard is met if a reasonable woman would consider such conduct sufficiently severe or pervasive to alter the conditions of employment and either unreasonably interfere with work performance or create an intimidating, hostile, or offensive work environment. See Ellison, 924 F.2d at 879.
Dr. Steinberg contends that there was insufficient evidence to support the HCRC's determination that he subjected Gould to unwelcome sexual conduct and thereby created an intimidating, hostile, and offensive work environment, in violation of HRS § 378-2(1)(A) and HAR § 12-46-109(a)(3). He argues that "the Circuit Court was wrong in not reversing the decision of HCRC based on the credibility of the witnesses and in view of the reliable, probative and substantial evidence on the whole record." It is well settled, however, that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence. See Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 117, 839 P.2d 10, 28, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992). Indeed, in reviewing agency cases, "courts decline to consider the weight of the evidence to ascertain whether it weighs in favor of the administrative findings, or to review the agency's findings of fact by passing upon the credibility of witnesses or conflicts in testimony[ ] . . . ." In re Application of Hawaiian Electric Co., Inc., 81 Hawai'i 459, 465, 918 P.2d 561, 567 (1996) (citation omitted).
Having reviewed the record, we hold that there was substantial, probative evidence to support the HCRC's decision. First, as detailed in section II.A, supra, the record contains numerous instances of both physical and verbal conduct of a sexual nature. For example, Dr. Steinberg touched Gould in a sexual manner by rubbing up against her when passing her in the narrow laboratory. Dr. Steinberg snapped Gould's bra strap from behind at least ten times. On one occasion, Dr. Steinberg
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