(1989) 214 Cal.App.3d 590
Court of Appeal, Second Appellate District, Division Five · Decided October 2, 1989
01. Facts
On January 29, 1987, Julie Fisher and her husband Cordell Fisher sued San Pedro Peninsula Hospital, two physicians (Drs. Tischler and Brow), and approximately two dozen hospital officers, directors, and board members, alleging sexual harassment (214 Cal.App.3d at p. 599). Julie Fisher, a nurse, alleged that one of the doctors sexually harassed female employees, creating a hostile environment, and that she was subjected to and witnessed that harassment (id. at p. 599). The trial court sustained demurrers and dismissed the action (id. at p. 599).
02. Procedural posture
The Court of Appeal reversed in part, allowing leave to amend, and set out the elements of a hostile-environment claim in a case of first impression (214 Cal.App.3d at p. 599).
03. Issue
What a plaintiff must allege to state a claim for “hostile environment” sexual harassment under the FEHA, and when an employee who is not the direct target of harassment is nonetheless “subjected to” a hostile environment.
Holding
To state a hostile-environment sexual harassment claim, a plaintiff must allege conduct that was unwelcome, based on sex, and sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment; an employee may be “subjected to” a hostile environment by harassment she personally witnesses and that pervades her workplace, even if she is not the individual to whom the conduct is directed, provided she perceives and is affected by it.
05. Reasoning
As a case of first impression under California law, the court drew on federal Title VII authority to articulate the elements of environmental sexual harassment and to explain that the FEHA protects employees from a workplace permeated by discriminatory intimidation. It clarified that bystander or witness employees can be harassed where the offensive conduct is pervasive enough to affect their working environment, while requiring that the conduct be directed at the plaintiff because of sex or pervade the environment she experiences.
Practice Pointer
Fisher is the foundational California statement of hostile-environment elements and the “subjected to” concept. Plaintiff’s counsel should plead each element specifically — unwelcome, based on sex, severe or pervasive, altering conditions — and, for witness/bystander clients, allege how the pervasive harassment affected the plaintiff’s own working environment.
06. Open questions
Fisher established the framework early; later Supreme Court decisions (Miller, Lyle) refined the “severe or pervasive” and “because of sex” requirements, and the precise reach of bystander/witness harassment continues to be developed.
Cite this entry
Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.
“On January 29, 1987, plaintiffs, Julie and Cordell Fisher, commenced this action against San Pedro Peninsula Hospital … [and] approximately two dozen hospital officers, directors and board members.” — 214 Cal.App.3d at p. 599
Source: California Official Reports – [insert durable courts.ca.gov / Official Reports link at verification].