A California Court of Appeal reversed the dismissal of a sexual harassment lawsuit brought by a former legal secretary against a Century City law firm and one of its attorneys. Jeri Elster had alleged that attorney Joel Fishman repeatedly sent her copies of sexually explicit emails, and that Finestone & Richter, APC chose not to stop to it despite her complaints. The trial judge had found these claims to be inadequate and dismissed the case.
Elster alleged that she was hired by the firm in 2008 and assigned by managing partner Jeffrey Richter to work with Fishman. She alleged that Fishman copied her on an email to Richter regarding the size of the managing attorney's sexual organ. Elster stated that she complained to the office manager, but nothing was done. She further alleged that Fishman sent her an email containing a pornographic video, another containing a Playboy magazine ad depicting a naked woman, and copies of a series of emails between Fishman and his wife, including a sexually suggestive email from the attorney and an explicit response from his spouse. Elster alleged that she complained to the office manager about each incident, but was told that she had done "all she could and was sorry."
Elster's complaint asserted causes of action for sexual harassment, failure to prevent sexual harassment, retaliation, and intentional infliction of emotional distress. The trial judge, after allowing three different amendments to the complaint, found that the incidents alleged by Elster did not amount to a hostile work environment. Accordingly, he dismissed the case.
The Court of Appeal reversed, distinguishing Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, in which the Supreme Court held that a woman who accepted a job working with writers on the sexually themed television program Friends could not sue over vulgar language employed in meetings as part of the creative process. "Unlike the plaintiff in Lyle...Elster worked in a law firm, not on the set of a television show about young adults and their romantic encounters and adventures," the Court of Appeal wrote. "Unlike the plaintiff in Lyle, Elster was a legal secretary who was not supposed to and did not expect to receive sexually charged emails from her boss unrelated to her job, not a comedy writer's assistant who was forewarned that as part of her job duties she would be hearing and transcribing jokes and discussions of a sexual nature." The claim that the number of incidents was insufficient to constitute the pervasiveness that a hostile-environment claim requires was also rejected. The factual issue of whether the conduct of Fishman and F&R was sufficiently severe and pervasive to constitute hostile work environment sexual harassment was for the jury.