Unpublished Court of Appeals Case Applies “Sufficiently Pervasive or Severe” Standard

On July 13, 2013, in an unpublished decision, the Second Court of Appeal reversed a lower court’s decision to dismiss a sexual harassment case on the grounds that plaintiff had not adequately pleaded a “hostile environment” theory.  For those interested in understanding what employers should not do in response to a harassment or discrimination complaint, the case is well worth reading.  Like a parable, this case offers a lesson:  Employers should respond to all complaints about harassment in the workplace.  A failure to act will usually create employer liability.

In Elster v. Fishman, a legal secretary complained that in the course of her work she was required to read her assigned attorney’s emails.  Some of those emails were “sexually explicit and pornographic.” The employee complained but the employer took no action in response to those complaints.  The employee went out due to stress and ultimately sued.  The law firm repeatedly challenged the adequacy of the former employee’s complaint for sexual harassment under the Fair Employment and Housing Act.  Essentially, it asked the Court to judge the adequacy of those pleadings as a matter of law.  The primary issue as to plaintiff’s FEHA case is whether the plaintiff alleged facts sufficient to establish “a pattern of continuous, pervasive harassment.”   The Court of Appeal concluded she had, reversing the trial court.

The case is also interesting because it illustrates that employer action in response to sexual harassment complaints should almost never include a transfer of the complainant.  Click on the link here for a full copy of the Elster v. Fishman.