Haw. Code R. § 12-46-109 - 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:
(1) Submission to that conduct is made either
explicitly or implicitly a term or condition of an individual's employment;
or
(2) Submission to or rejection
of that conduct by an individual is used as the basis for employment decisions
affecting that individual; or
(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.
(b) In determining whether alleged conduct
constitutes sexual harassment, the commission will 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. The
determination of the legality of a particular action will be made from the
facts, on a case by case basis.
(c)
An employer shall be responsible for its acts and those of its agents and
supervisory employees with respect to sexual harassment regardless of whether
the specific acts complained of were authorized or even forbidden, and
regardless of whether the employer or other covered entity knew or should have
known of their occurrence. The commission will examine the circumstances of the
particular employment relationship and the job functions performed by the
individual in determining whether an individual acted in either a supervisory
or agency capacity.
(d) With
respect to conduct between employees, an employer shall be responsible for acts
of sexual harassment in the workplace where the employer or its agents or
supervisory employees knows or should have known of the conduct and fails to
take immediate and appropriate corrective action. An employee who has been
sexually harassed on the job by a co-worker should inform the employer, its
agent, or supervisory employee of the harassment; however, an employee's
failure to give such notice may not be an affirmative defense.
(e) An employer may be responsible for the
acts of non-employees, with respect to sexual harassment of employees at the
workplace, where the employer knows or should have known of the conduct and
fails to take immediate and appropriate corrective action. In reviewing these
cases, the commission will consider the extent of the employer's control and
any other legal responsibility which the employer may have with respect to the
conduct of the non-employees.
(f)
Where employment opportunities or benefits are granted because of an
individual's submission to the employer's sexual advances or requests for
sexual favors, the employer may be held liable for unlawful sex discrimination
against other persons who were qualified for but denied that employment
opportunity or benefit.
(g)
Prevention is the best tool for the elimination of sexual harassment. Employers
should affirmatively raise the subject, express strong disapproval, develop
appropriate sanctions, inform employees of their right to raise and how to
raise the issue of sexual harassment, and take any other steps necessary to
prevent sexual harassment from occurring.
Notes
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