Hughes v. Pair: High standards for sexual harassment by professionals

INTRODUCTION

The California Supreme Court has held that a few vulgar and offensive but isolated comments made on a single day in the course of a professional relationship lasting several years did not constitute either actionable sexual harassment or intentional infliction of emotional distress. In Hughes v. Pair, 46 Cal. 4th 1035 (2009), California’s highest court affirmed lower courts’ grant of summary judgment in favor of a trustee who allegedly made inappropriate sexual comments to the mother of a trust beneficiary, finding that the plaintiff had not established that the comments were “pervasive or severe” enough to be actionable.

BACKGROUND

When Mark Hughes, founder of the nutritional supplement company Herbalife International, died in 2000, he left $350 million in a trust for the benefit of his only son, Alex. In June 2005, Suzan Hughes, Alex’s mother and Mark’s third ex-wife, asked the trustees to approve $160,000 for a two-month rental of a beach house in Malibu for Alex, but the trustees only approved $80,000 for one month.

Shortly after the trustees’ decision, a trustee and Herbalife president Christopher Pair, allegedly called Suzan on the phone to invite her and Alex to a museum event with him and his son. During that conversation, he allegedly called Suzan “sweetie” and “honey” and made numerous other sexual references, including stating that he could be persuaded to change his vote and approve another month on the beach house if Suzan were “nice” to him. Later that evening, at the museum event, Pair allegedly said to Suzan: “I’ll get you on your knees eventually. I’m going to f--- you one way or another.”

Suzan subsequently sued Pair for sexual harassment under California’s Civil Code Section 51.9, which prohibits sexual harassment in “relationships between providers of professional services and their clients,” if those relationships cannot be easily terminated by the plaintiff. Service providers often covered by the statute include physicians, psychiatrists, attorneys, real estate agents, accountants, trustees, and teachers.

Pair denied making the statements in his answer to the Complaint, and moved for summary judgment, arguing that even if he had made the statements, Suzan failed to state a claim for relief. The Los Angeles Superior Court granted the motion and the Court of Appeals upheld that decision – both lower courts reasoned that the terms “pervasive” and “severe,” in the context of Cal. Civil Code Section 51.9, should be interpreted the same way those terms are construed by the Courts in federal and state statutes addressing sexual harassment within the workplace.

Pair’s alleged statements were not “pervasive” or “severe” with the meaning of the statute

The Plaintiff asserted both quid pro quo and hostile environment forms of sexual harassment. The Court easily discounted her quid pro quo sexual harassment argument, however, because Suzan did not allege any causal connection between her rejection of Pair’s advances and any financial injury, retaliatory conduct by Pair, or other tangible harm resulting to Suzan or her son. Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009).

As a result, the Court focused its primary analysis on whether the phrase “pervasive or severe” in Cal. Civil Code Section 51.9 should be applied and interpreted the same way that it is interpreted in federal Title VII cases and California FEHA (the Fair Employment and Housing Act) cases, which address sexual harassment within the workplace. The Plaintiff argued that “pervasive or severe” has a plain meaning independent of the Title VII and FEHA definition, and that the question of whether Pair’s conduct was pervasive or severe should be a question of fact for jury determination. Id. at 1045.

The Court reviewed the Title VII and FEHA statutory interpretations and the legislative history of Section 51.9 to conclude that the California Legislature intended “to conform the requirements governing liability for sexual harassment in professional relationships outside the workplace to those of the federal law’s Title VII and California’s FEHA, both of which pertain to liability for sexual harassment in the workplace.” Id. at 1048 (emphasis in original). To determine liability under Section 51.9, “the relevant inquiry is whether the alleged sexually harassing conduct was sufficiently pervasive or severe as to alter the conditions of the business relationship.” Id.

With this definition of “pervasive or severe” in mind, the Court determined that the conduct complained of was neither pervasive nor severe. To be pervasive, “the sexually harassing conduct must consist of ‘more than a few isolated incidents.’” Id. at 1048 (citing Lyle v. Warner Bros. Television Productions, 38 Cal. 4th 264, 284(2006)). But in this case, a few inappropriate comments made on a single day during the course of a professional relationship could not be construed as “pervasive.”

Similarly, Pair’s conduct could not be construed as “severe.” The Court again referenced the Lyle case to state that “an isolated incident of harassing conduct may qualify as ‘severe’ when it consists of ‘a physical assault or the threat thereof.” Id. at 1049. While the Court agreed that at least some of Pair’s alleged remarks may have been “vulgar and highly offensive,” they “would not plausibly be construed by a reasonable trier of fact as a threat to commit a sexual assault on plaintiff.” Id. At the most, Pair’s comments may have been construed as a threat to use his position to impact the allocation of funds from the trust, but that kind of threat does not constitute as “severe.” Id. Because Plaintiff’s allegations set forth conduct that was neither “pervasive” nor “severe,” she could not sustain an actionable sexual harassment claim.

Pair’s conduct was not sufficiently outrageous to constitute intentional infliction of emotional distress

The Court also agreed with the lower courts’ assessment that the Plaintiff failed to establish an actionable claim of intentional infliction of emotional distress. To establish a cause of action for intentional infliction of emotional distress, a plaintiff must establish: 1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; 2) the plaintiff’s suffering severe or extreme emotional distress; and 3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. 46 Cal. 4th at 1050-1051. Whether a defendant’s conduct is “outrageous” is not determined on a subjective basis, but on the basis of whether it is so “extreme as to exceed all bounds of that usually tolerated in a civilized community.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1001 (1993).

The Court agreed with the Court of Appeal’s conclusion that Plaintiff failed to establish either extreme or outrageous conduct by Pair, or that she suffered severe or extreme emotional distress as a result. 46 Cal. 4th at 1051. Though Pair’s alleged comments were inappropriate, in the grand scheme of the relationship, they could not be considered “outrageous.” Moreover, Plaintiff’s minor physical discomforts were not the type of symptoms that support an actionable claim.

CONCLUSION

In Hughes, the California Supreme Court has affirmed the high standard for sexual harassment, both within and outside of the workplace. Isolated offensive and inappropriate comments simply do not rise to the level of illegal sexual harassment.

Nevertheless, employers should be vigilant about monitoring and preventing sexual harassment both within the workplace and between employees and clients. Employers must have clear written policies in place that expressly prohibit conduct that may be construed as sexual harassment and that may expose the employer to a lawsuit, if not liability. It is equally critical to provide appropriate training for all employees – but especially supervisors – on the guidelines of appropriate and inappropriate conduct. As the Hughes case illustrates, even though Pair was ultimately found not liable, he had to spend a small fortune to defend against Hughes’ claims – had he been aware of his potential exposure, he may have censored himself.