Sexual Harassment: A Wake-up Call
Sexual harassment may be one severe act that intimidates someone. A harasser does not necessarily want sex with the victim. The Hawaii Supreme Court recently made these points in Nelson v. University. In Nelson, assistant professor Nelson claimed her department chair and a fellow faculty member made sexual statements.
The chair said living in Hawaii required two incomes, she needed a man in her life and she should go to Chinatown and find an old Chinese gentleman to take care of her. The fellow faculty member saw her kneeling and said, “That’s how we like to see women around here - on their knees and begging.” Referring to prior surgery, he said, “The problem with her was that Nelson was too smart. That’s why she had to have brain surgery so they could take out part of her brain so she would be like all the other women in the world.”
Nelson appealed the jury verdict for defendants. The Court directed a new trial because the trial judge gave prejudicial jury instructions. First, they implied Nelson had to show the individuals were motivated by desire for sex. Second, they required Nelson to show their statements had the purpose or effect of both unreasonably interfering with work performance and creating an intimidating, hostile or offensive work environment. Third, they suggested single acts, even if severe, could not be sexual harassment.
The Court explained a sexual harassment claimant must show (1) claimant was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct or visual forms of harassment of a sexual nature; (2) the conduct was unwelcome; (3) the conduct was severe or pervasive; (4) the conduct had the purpose or effect of either: (a) unreasonably interfering with work performance, or (b) creating an intimidating, hostile, or offensive work environment; (5) claimant actually perceived the conduct as having such purpose or effect; and (6) claimant’s perception was objectively reasonable to a person of the claimant’s gender in the same position as claimant.
Nelson will remind employers to effectively prevent and correct sexual harassment and help trial courts instruct juries.
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