California: Legal Secretary’s IIED Claim Against Attorney and Firm Related to Pornographic Emails May Proceed

In an unpublished decision, Elster v. Fishman, 2013 Cal. App. Unpub. LEXIS 5158 (July 22, 2013) [check Cal. Rules of Court, Rule 8.1115(a) regarding rules related to citation], a California appellate court recently reversed a trial court’s order sustaining demurrers to a legal secretary’s cause of action filed against an attorney and his firm alleging, among other things, intentional infliction of emotional distress caused by the secretary’s receipt of multiple rounds of pornographic and sexually explicit emails from the attorney. The secretary alleged that in each instance she promptly complained to the law firm’s office manager, but to no avail. The secretary’s doctor eventually put her on medical leave. The trial court determined that her civil action was barred, in relevant part, by the exclusive remedy provisions of the California workers’ compensation law.  

The appellate court disagreed. The court acknowledged that an employer’s intentional misconduct in connection with actions that were a normal part of the employment relationship (e.g.., demotions and criticism of work practices) resulting in emotional injury were considered to be encompassed within the compensation bargain and, therefore, civil actions against the employer based on such egregious conduct were barred by exclusivity. The court added, however, that conduct in which an employer stepped out of its “proper role” as an employer or conduct of “questionable relationship to the employment,” was not encompassed within the compensation bargain and was not subject to the exclusivity rule.

The court concluded that because the secretary’s intentional infliction of emotional distress claim stemmed from the attorney’s sexual harassment–a risk not reasonably encompassed in the compensation bargain–the workers’ compensation exclusivity rule did not bar her intentional infliction of emotional distress claims.

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