Fisher v. San Pedro Peninsula Hospital

JOHNSON, J., Concurring and Dissenting

I concur with the majority’s reversal of the judgment as to Ms. Fisher’s cause of action for environmental sexual harassment and Mr. Fisher’s cause of action for retaliation. However, I believe Ms. Fisher’s allegations contained in her second amended complaint are sufficient to state a cause of action under the California Fair Employment and Housing Act (the Act) and, thus, no additional pleading is required.

Ms. Fisher alleges that from 1982 to 1986, Dr. Tischler committed various acts of sexual harassment including “pulling nurses onto his lap, hugging and kissing them while wiggling, making offensive statements of a sexual nature, moving his hands in the direction of woman’s [»c] vaginal area, grabbing women from the back with his hands on their breasts or in the area of their breasts, picking up women and swinging them around, throwing a woman on a gurney, walking up closely behind a woman with movements of his pelvic area. . . . The acts were committed in hallways, the operating room and lunch room of Defendant Hospital . . . .”

By my count, these allegations indicate at least 12 separate instances of sexual harassment and misconduct which occurred throughout Ms. Fisher’s work environment during a 4-year period.1 I believe this number of instances is sufficient to establish a pervasive pattern of sexual harassment which is actionable under the Act.

I also wish to take issue with both the trial court and respondents’ characterization of this conduct. The trial court referred to Dr. Tischler’s alleged conduct as “sophomoric antics,” a theme perpetuated by respondents. Relegating this conduct to such a category is both demeaning and dishonest. Grabbing a woman’s breasts, gesturing towards a woman’s vaginal area or even making offensive sexual statements to another is far from being merely sophomoric. It is egregious, hostile conduct which should not be condoned or excused to immaturity. The Legislature has clearly man*624dated hostile sexual work environments are no longer to be tolerated. We should not eviscerate this legislative mandate by disguising offensive conduct under a guise of horseplay or good-natured fun. It is neither.

In sum, I would conclude Ms. Fisher pled with sufficient particularity those facts necessary to maintain an action for environmental sexual harassment. Accordingly, I would reverse the judgment as to that cause of action without requiring any additional pleading.

Respondents’ petition for review by the Supreme Court was denied January 18, 1990.

I calculated this number by counting each separate act framed in the singular as one and those acts framed in the plural as two. Of course, Ms. Fisher may be referring to many more instances than two when she uses the plural.