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Suit over pornographic emails not barred by workers comp exclusive remedy

Suit over pornographic emails not barred by workers comp exclusive remedy

Workers compensation's exclusive remedy does not bar a legal secretary's claim stemming from sexually explicit emails sent by an attorney at the law firm that employed her, a California appeals court ruled.

In Monday's unpublished decision regarding Jeri Elster v. Joel Fishman et al., the Los Angeles-based 2nd District Court of Appeal also ruled that the plaintiff alleged sufficient facts to establish “a pattern of continuous, pervasive harassment,” allowing her claims alleging violation of California's anti-discrimination law, the Fair Employment and Housing Act.

The ruling shows that the Finestone & Richter APC law firm hired Ms. Elster in 2008 and assigned her to work with Mr. Fishman, an attorney and defendant in the case. Mr. Fishman instructed her that she had to open at least 30 emails a day from him and give them her personal attention.

She then received emails including ones discussing another attorney's penis size, a pornographic video of a woman taking off her gym clothes with the law firm's employees discussing the woman's breasts, and an advertisement for a Playboy magazine subscription with a woman wearing nothing but a Santa Claus hat, according to the ruling.

In February 2011, after repeatedly asking the firm to stop such emails, Ms. Elster sued Mr. Fishman and the law firm. She alleged 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.


But in 2012, the Superior Court of Los Angeles County ruled in favor of the defendants, finding that Ms. Elster's FEHA violation complaints were not actionable because the emails did not establish a hostile work environment. The court also agreed with the defendants that the exclusive remedy provision under California workers compensation law barred Ms. Elster's intentional infliction of emotional distress as a cause of action.

But the appeals court disagreed and said Ms. Elster's allegations described an environment that was offensive, hostile and abusive, and that the harassment persisted despite prompt complaints. It said the facts viewed in their totality state a claim for sexual harassment based on a hostile work environment.

The court also noted in its ruling that Ms. Elster had been the victim of 1992 violent home invasion rape.

“Fishman's sexually inappropriate emails and attachments were entirely unwelcome by Elster,” the appeals court said. “Indeed, Fishman's emails were particularly unwelcome because Fishman and F&R knew that Elster had been a rape victim.”

The appeals court also ruled in its unpublished opinion that because Ms. Elster's intentional infliction of emotional distress claim stems from sexual harassment, which is a risk not reasonably encompassed by workers comp's exclusivity rule, the claim is not barred.

The appeals court reversed the trial court's judgment and remanded the case for further proceedings.