The “Severe” and “Pervasive” Element in Sexual Harassment Law

 

A work environment is considered “hostile” under both Hawaii and federal law when sexual behavior is severe or pervasive enough to alter the complaining employee’s employment conditions and create an abusive work environment.This occurs when unwelcome sexual or gender-based conduct has the purpose or effect of creating an intimidating or offensive work environment or unreasonably interfering with an individual’s work performance. Sexual flirtation or innuendo, even vulgar language or sexist remarks that are trivial or merely annoying, would probably not meet the legal definition of a hostile environment. But such activity can still be prohibited by workplace policy and should be stopped as soon as management becomes aware of it. Look at all the Circumstances: There is no mathematically precise test for determining whether sexual or gender-based conduct has created a hostile environment. Hawaii and federal courts view the conduct from both a subjective and objective viewpoint. The subjective test examines whether the complaining employee actually perceived the conduct to be severe or pervasive enough to create a hostile or abusive work environment. The objective test looks to whether the complaining employee’s subjective perception is a reasonable one. The best approach to use in evaluating whether specific behavior has created a hostile environment is to examine the totality of the circumstances. Key factors management should consider include: 1.The nature of the conduct (physical, verbal, or both) 2.The identity of the alleged harasser(s) (supervisor, coworker, or nonemployee); 3.Whether the conduct was physically threatening or humiliating, or a mere offensive comment 4.The frequency, severity and pervasiveness of the conduct 5.The context(s) in which the conduct occurred 6.Whether the conduct was unwelcome (uninvited by and offensive to the complaining employee) 7.Whether the conduct unreasonably interfered with an employee’s work performance. This is not a complete list of factors to consider. There may be other pertinent circumstances to take into account in a particular case. And, although the conduct may not constitute what is legally defined as sexual harassment, the employer can and should set higher standards and take immediate action where it learns that inappropriate (generally, where unwelcome) gender-based conduct has occurred. Use Common Sense to Determine Inappropriate Behavior: Management can properly address all inappropriate conduct that may lead to a claim of sexual harassment by asking the following common sense questions. If the answer to any of these questions is “no,” appropriate action should be taken to stop the behavior. 1.Would you want the same thing said or done in front of your spouse, sibling, child or parent? 2.Would you normally say or do the same thing to a member of your own sex (male/female harassment)? 3.Did it need to be said or done at all? 4.Did it serve any useful business purpose? 5.Would you want to be identified in a news media report saying or doing it? Never Assume that an Employee is Being Oversensitive: Do not assume that an employee who complains of a hostile environment is being overly sensitive. In determining whether sexual harassment has occurred, it is essential to evaluate how the employee actually felt about the conduct. Nonsexual Behavior Aimed at one Sex is Harassment: Sexual harassment does not have to take the form of blatant or obvious sexual advances or suggestions. Although cases of sexual harassment frequently involve comments or actions that are sexual in nature, gender-based conduct—conduct directed only at employees of one gender—that is nonsexual in nature can violate Title VII and Hawaii law. Acts of aggression, intimidation, hostility, rudeness, name calling, or other types of abusive conduct directed toward one gender can be unlawful gender-based harassment. This nonsexual gender-hostile conduct will sometimes be coupled with offensive sexual conduct. The Conduct Need not be Directed at the Victim: If there is sexual harassment in the workplace, persons other than the actual victim may be able to sue the company for sexual harassment. It is not necessary that the sexual or gender-based conduct be directed at the person making a sexual harassment complaint. Therefore, even if the person who appears to be a victim of sexual harassment does not complain or even denies harassment, managers and supervisors should take the necessary steps to investigate and, if necessary, eliminate any harassing behavior.