The California Court of Appeal, Second Appellate District, recently addressed the issue of whether an employee of the California Institute of the Arts (CalArts) stated a claim for sexual harassment where a sexually-oriented drawing of the employee was displayed in a student art exhibit. (Herberg v. California Institute of the Arts, 2002 WL 1839968.)
Facts
Two students at CalArts created a pencil drawing depicting various members of the CalArts staff engaged in sexual activities. The drawing, measuring 25 by 40 inches, was displayed in the main gallery as part of an end-of-the-year show for first year art students. CalArts did not require the students to obtain approval before exhibiting their work. The drawing depicted an 82-year-old woman, an administrative employee, partially nude and seemingly engaged in sexual intercourse with another employee. The employee’s daughter and granddaughter, also CalArts employees, were notified of the drawing and both viewed the drawing. CalArts’ policy on censorship provides that it will not censor any work based on content but provides that a person may object in writing to any exhibit or display. The daughter lodged an objection to the display of the drawing in accordance with school policy. The employee depicted in the drawing did not see it and one of its creators voluntarily removed it the next day.
The employee, her daughter and granddaughter, and another female employee sued CalArts for invasion of privacy and employment discrimination under the Fair Employment and Housing Act (FEHA). The women claimed that the display of the drawing amounted to sexual harassment because it altered the conditions of their employment and created a hostile work environment. The trial court granted summary judgment in favor of CalArts finding that the display of the drawing was not so discriminatory and abusive that it unreasonably interfered with the women’s job performance.
The Appellate Decision
The Court of Appeal affirmed the decision of the trial court finding that no reasonable jury could conclude that the display of the drawing for 24 hours constitutes sexual harassment within the meaning of the FEHA. The Court explained that there are two theories of liability for sexual harassment: quid pro quo harassment and hostile work environment. Quid pro quo harassment occurs “where a term of employment is conditioned upon submission to unwelcome sexual advances.” Here, the women’s claim of sexual harassment was based on a hostile work environment, which occurs “where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.” In order to state a claim of hostile work environment, a plaintiff must show that a defendant’s conduct would interfere with a reasonable employee’s work performance and seriously affect a reasonable employee’s psychological well-being, and that the plaintiff was actually offended by the conduct.
To determine if a hostile work environment claim is actionable, a court must look at the totality of the circumstances including the nature of the offensive conduct, the frequency of the conduct, the total number of days over which the conduct occurred, and the context of the offensive conduct. The Court noted that in most cases a single objectionable incident is not sufficient to support a hostile work environment claim unless that single incident “is severe in the extreme and generally must include either physical violence or the threat thereof.” The Court concluded that the single incident involved here, the display of the drawing for 24 hours, was neither severe nor pervasive enough to constitute sexual harassment.
In reaching its conclusion, the Court noted that the students did not create the drawing to harass the plaintiffs, but to “make a point about representational art” and that the school was mindful of the plaintiffs’ feelings and tried to limit the impact of the drawing.