Once Is Too Much

What Employers Need to Know About Hawaii’s Sexual Harassment Law

photo: Veer

It may have lasted for only one or two seconds, but the incident was serious enough that the repercussions could be felt throughout workplaces in Hawaii for years to come.

On March 29, 1998, German Rodas, a waiter at the Hilton Hawaiian Village's Rainbow Lanai, stood behind Madonna Arquero, a female co-worker, and squeezed her right buttock. Arquero told him to stop and pushed his hand away.

Luckily, Zaiton Short, an assistant manager at the restaurant, had witnessed the whole incident through an open kitchen door. Before the end of the shift, Short told Rodas that she had observed the incident, and it was clearly inappropriate behavior. She told him that if he did it a second time, he would receive a written warning.

Less than a month later, Rodas again stood behind Arquero and squeezed her buttock, an act that was again observed by Short. Later that day, Rodas was suspended. He remained on suspension until he was terminated several weeks later, after an investigation.

Six months later, Arquero filed a complaint against Hilton Hawaiian Villages and Rodas claiming sexual harassment, sexual assault and battery, infliction of emotional distress and invasion of privacy.

On Feb. 22, 2001, the state circuit court found in favor of Hilton, ruling that there was not enough evidence presented to prove that the initial touching was sufficiently severe to constitute sexual harassment. In addition, the court found that Rodas's behavior was outside the scope of his employment.

Arquero appealed the court's decision to the Hawaii Supreme Court a month later and, on June 10, 2004, it reversed the circuit court's decision and ruled that the first touching incident constituted actionable sexual harassment and that, at the time, Hilton should have taken adequate measures to prevent the second incident. In other words, once was enough, or once was too much.

THIS COULD BE HUGE

On one level, Arquero v. Hilton Hawaiian Villages LLC merely confirms what most who are familiar with the issues already knew. Every complaint of sexual harassment needs to be fully investigated and addressed, even though it may seem like an aberration in the workplace. Squeezing someone's buttock without consent is a form of sexual assault. It is a fourth-degree offense, but sexual assault nonetheless. Thus, for some, when Arquero v. Hilton Hawaiian Villages was handed down, it wasn't a big surprise. If the act is considered a crime by the state, why wouldn't it be considered a form of sexual harassment?

However, Arquero also clarified state sexual harassment law and reinforced the Hawaii Supreme Court's recent departure from the federal interpretation of the statutes. With Arquero v. Hilton Hawaiian Village and Nelson v. University of Hawaii (see left) before it, Hawaii sexual harassment law provides greater protections for plaintiffs

What does this mean for employers and employees?

First, a single serious incident may constitute actionable sexual harassment. Secondly, the incident may lead to immediate disciplinary action, up to and including discharge. Finally, the act could be severe enough to lead to criminal charges against the perpetrator. In Rodas' case, sexual assault.

The Arquero case reaffirms the need for employers to have a policy that clearly defines sexual harassment, outlining prohibited conduct, have a complaint procedure that has multiple avenues of communication and have immediate disciplinary actions to end harassment, including discharge.

"From an employer's point of view, this could be huge," says University of Hawaii at Manoa law professor Ron Brown, who specializes in sexual harassment law. "It represents a significant detour by state courts from federal case law. The state has chosen a different interpretation, focusing on the severity of the conduct of the perpetrator. Federal law addresses how the act affects the terms of employment, whether the workplace is a difficult or unbearable place to be. This may be just the beginning. It may or may not lead to some serious cracks and a deluge of lawsuits."

OR MAYBE NOT

In Hawaii, the effects of the decision have yet to be felt. In fact, the number of sexual harassment cases reported to the Hawaii Civil Rights Commission has steadily declined since 2002. That year, there were 54 cases alleging sexual harassment. In 2003, there were 52 reported and 50 in 2004. Last year, the number of cases alleging sexual harassment dropped to 41.

Similarly, sexual harassment complaints across the nation have been slowly moving downward. Peaking in 1997, with 15,889 claims filed with the Equal Employment Opportunity Commission, the number of cases leveled off through the rest of the '90s and into 2001, after which it has slowly and steadily decreased. In 2005, there were 12,679 cases reported to the EEOC, a 20 percent drop from 1997.

For companies that already had proactive sexual harassment policies and procedures in place, the Arquero decision caused barely a ripple. In an e-mail response to Hawaii Business, Nelson N.S. Chun, senior vice president and chief legal officer, and chair of Alexander & Baldwin Inc.'s corporate compliance committee, wrote: "A&B is aware of the Hilton Hawaiian Village case, and takes it under consideration as appropriate, just as it would any other legal decision. The case did not result in any specific changes in training, policies or procedures. A&B has had effective sexual harassment policies and related procedures in place for quite some time, and conducts periodic employee training to raise awareness regarding sexual harassment and other inappropriate business conduct."

Alexander & Baldwin has had its code of conduct regarding sexual harassment in place since 1996.

It's been two years since the Arquero decision. Connie Hastert, director of government affairs for the Hawaii Employers Council, says her 800-member group, which assists companies to build and maintain sound employee relations, has yet to see any unusual rise in the number of reports of sexual harassment complaints from its members.

"It [a spike in sexual harassment] hasn't happened yet," says Hastert. "We'd like to think that the decrease in the number of cases means that employers are paying very close attention to sexual harassment."

CLARIFYING THE LAW

Instead of opening up a Pandora's box of possibilities, Arquero v. Hilton Hawaiian Village may have actually cleared up the sometimes murky issues surrounding sexual harassment. According to attorneys for both employers and plaintiffs, the decision has not only confirmed their assumptions, but reinforced the need for strict codes of behavior.

"Arquero confirmed that a single instance can constitute sexual harassment. Before that it wasn't that clear, but we had been advising our clients of this long before the decision was handed down," says Bryan Andaya, an attorney in the labor and employment law section of the law firm of Imanaka Kudo and Fujimoto. "When Arquero came out in June of 2004, the worry for me was that our clients plaintiffs may interpret Arquero that any incident can be actionable sexual harassment and that there may be a knee jerk reaction and employers would be firing people left and right. But that doesn't seemed to have happened either."

Plaintiff attorney David Simons puts it more simply: "I think that everyone is so scared about the consequences, so in large measure sexual harassment law has accomplished its purpose. It prevents it. Because everyone is so aware that sexual harassment is not allowed, you don't see it as much as you used to see it 10 years ago. Companies realize that it is important to their economic survival to not let it happen. Employees realize that they could lose their jobs over it."

THE EVOLUTION OF SEXUAL HARASSMENT LAWS A selection of significant laws and cases

Civil Rights Act of 1964 Title VII This act prohibits employment discrimination based on race, sex, national origin or religion. While the law covers both males and females, it was originally conceived to protect women in the workplace. Equal Employment Opportunity Commission Guidelines In 1980, the Equal Employment Opportunity Commission (EEOC) issued guidelines declaring sexual harassment a violation of Section 703 of Title VII, establishing criteria for determining when unwelcome conduct of a sexual nature constitutes sexual harassment, defining the circumstances under which an employer may be held liable and suggesting affirmative steps an employer should take to prevent sexual harassment. Meritor Savings Bank v. Vinson (1986) The U.S. Supreme Court affirmed the basic premise of the EEOC's guidelines as well as its definition of sexual harassment in this landmark decision. In the case, Mechelle Vinson, a teller at Meritor Savings Bank, claimed that she had been submitted to unwanted sexual advances by her supervisor in order to keep her job. The court unanimously agreed that the creation of a "hostile work environment" was a form of sex discrimination under Title VII, even though there was no tangible economic damage to the plaintiff. The case has reshaped the workplace throughout the country and has influenced such high-profile controversies as the Anita Hill-Clarence Thomas hearings, the Tailhook scandal and President Clinton's impeachment. Harris v. Forklift Systems (1993) Teresa Harris was continually sexually harassed by her employer, which eventually led to her leaving her job after two years. She filed a suit in federal district court claiming that the harassment created an abusive work environment. The court found that, while Harris' supervisor's behavior "would offend the reasonable woman," it wasn't severe enough to affect her psychologically and impair her work performance. The U.S. Court of Appeals in the Sixth District upheld the decision, but the U.S. Supreme Court struck it down, saying that, while conduct that results in "concrete psychological harm" is certainly covered under Title VII, it is not limited to such behavior. As long as the environment can be perceived and is perceived as hostile or abusive, there can be a case of actionable sexual harassment. Faragher v. City of Boca Raton (1998) After resigning from her position as a city lifeguard, Beth Ann Faragher brought an action against the city of Boca Raton and her immediate supervisors, Bill Terry and David Silverman. Faragher alleged that Terry and Silverman had created a hostile working environment by repeatedly subjecting her and other female lifeguards to unwanted touching, as well as making lewd remarks and speaking of women in offensive terms. The District Court ruled that the supervisors conduct was sufficiently serious to constitute a hostile work environment and that the city could be held liable. The Court of Appeals reversed the decision, holding that Faragher's supervisors were not acting within the scope of their employment when they engaged in the harassing conduct, therefore the city couldn't be held liable. However, by a 7 - 2 vote, the U.S. Supreme Court reversed that decision, finding that the city had "entirely failed to disseminate its policy against sexual harassment among the beach employees and that its officials made no attempt to keep track of the conduct of supervisors." And in Hawaii ... Nelson v. University of Hawaii (2001) Karyn Nelson, an assistant professor in the University of Hawaii's Department of Health, Physical Education and Recreation, filed a suit against the university, claiming disability discrimination, sex discrimination and unlawful retaliation, invasion of privacy, negligent infliction of emotional distress and intentional infliction of emotional distress. In regard to her sexual harassment claim, Nelson alleged that her supervisors made sexually offensive remarks, jokes and innuendos and exhibited hostility toward women. The circuit court jury returned a verdict in favor of Nelson on her claim of negligent infliction of emotional distress, but found in favor of UH of all other claims. On her appeal to the state supreme court, the justices divided the "severe and persuasive" requirement for sexual harassment into separate criteria. In other words, instead of the "totality of the circumstances," sexual harassment can be assessed as being either severe or persuasive. In the decision, Chief Justice Ronald Moon, writing for the court, postulated that there may be a case where a single incident could be severe enough to constitute sexual harassment. That case came in before the court the same year in the form of Arquero v. Hilton Hawaiian Villages LLC.

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