MADONNA P. ARQUERO, Plaintiff-Appellant, vs. HILTON HAWAIIAN VILLAGE, LLC, f.k.a. Hilton Hawaiian Joint Venture LLC, f.k.a. Hilton Hawaiian Village Joint Venture, a Hawai'i Limited Liability Company, HILTON HOTELS CORPORATION, a Delaware Corporation, Defendants-Appellees, and GERMAN RODAS, JOHN DOES 1-5, JANE DOES 1-5, DOE CORPORATIONS 1-5, DOE ENTITIES 1-5, DOE GOVERNMENTAL AGENCIES 1-5, Defendants., 104 Haw. 423

Summary

The employee filed suit alleging sexual harassment after another employee grabbed her buttocks in two separate incidents. The employer argued that the first incident was not severe enough to constitute sexual harassment, and, even if it did, its response was reasonably calculated to end the harassment. The trial court found the first incident was not sufficiently severe so as to constitute actionable sexual harassment. On appeal, the court noted that, unlike in the federal courts, it was the harasser's conduct that must be severe or pervasive not its effect on the plaintiff or on the work environment. The court found that the harasser's conduct constituted sexual assault under Haw. Rev. Stat. § 707-733(1)(a) (1993) and was sufficiently severe. The court held that there was a genuine issue of material fact as to the reasonableness of the employer's response, because reasonable minds could differ as to whether the response was calculated to end the harassment. The court noted that, ...