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AUGUST 2013 NEWSLETTER - Amicus
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Update from the Amicus Brief Committee

Last year, the WLALA Amicus Briefs Committee filed an amicus brief in the California Court of Appeal in support of the plaintiff and appellant in Elster v. Fishman, B239651.  This month, committee member Lisa Jaskol argued part of the case at oral argument at the request of plaintiff’s counsel.  The committee is happy to announce that on July 22, 2013, Division Seven of the Second District issued an unpublished opinion granting relief in favor of the plaintiff.

The case involved a woman employed as a legal secretary at a law firm.  As part of her duties, she had to open and review emails from the lawyer with whom she was assigned to work.  Plaintiff alleged that throughout her employment at the firm, she received a number of vulgar and sexually offensive emails from her boss.  These emails were especially offensive to the plaintiff, who previously had been the victim of a violent home invasion rape, as the firm and her boss were aware.

After each instance, plaintiff reported the offensive emails to the firm and asked for corrective action.  Instead of disciplining her boss, the firm's managing partner allegedly told her that her boss would be allowed to continue sending her emails but would take her off the email cc list so that she wouldn't see the offensive replies.  The emails continued, plaintiff continued to ask the office to address the problem, and instead her boss provided an insincere apology, sent her flowers, and invaded her personal space.  Finally, the firm allegedly offered to switch her assignment to another attorney by firing her friend to accommodate the switch.  Pushed beyond endurance and receiving no corrective action from her employer, she was placed on medical leave by her doctor.

Plaintiff filed complaints with the Department of Fair Employment and Housing, and was issued right to sue notices.  She filed suit against her boss and the firm alleging sexual harassment in violation of FEHA, failure to prevent sexual harassment in violation of FEHA, retaliation in violation of FEHA, and intentional infliction of emotional distress.  The trial court sustained demurrers without leave to amend to all causes of action on the grounds that the intentional infliction of emotional distress claim was barred by the exclusive remedy provisions of the workers' compensation laws, and there was no hostile work environment, barring all of the FEHA claims.

Plaintiff appealed and the WLALA Amicus Briefs Committee filed a brief in support of the plaintiff arguing that the intentional infliction of emotional distress claim was not barred by the workers' compensation laws.  At a lively oral argument, the Court questioned both sides about whether there was a hostile environment in the work place for FEHA purposes and whether the workers' compensation laws barred the intentional infliction of emotional distress claim.

Ultimately, the Court held that there was a factual question as to whether the offensive emails and other conduct created a hostile work environment constituting a FEHA violation and reversed the trial court's sustaining of defendants' demurrer to these causes of action, except for the retaliation claim, because plaintiff had not suffered adverse employment actions as a result of her complaints about the sexual harassment.   The Court also reversed the trial court's intentional infliction of emotional distress ruling, finding that the claim stemmed from her boss's "sexual harassment, a risk not reasonably encompassed in the compensation bargain, (and thus) the workers' compensation exclusivity rule does not bar (her) intentional infliction of emotional distress claim."  In reaching this decision, the Court cited several cases set forth in the amicus brief.

The Amicus Briefs Committee and WLALA are pleased to have been a part of this result.

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