In a recent unpublished decision, the Court of Appeal held that the alleged sexual harassment endured by an employee at the hands of another employee, was not confined to workers’ compensation.

The matter is that of Jeri Elster v. Joel Fishman (UNPUBLISHED).  As alleged, Joel Fishman was a southern California attorney working in the same firm that employed Jeri Elster as a secretary.

Fishman repeatedly sent Elster pornographic materials, and made crude sexual-based jokes, even after being repeatedly asked to stop.  For some reason, Fishman also thought it appropriate to make crude references to a traumatic event in Elster’s past.

This being a family friendly blog, your humble blogger will refrain from providing any details, but, will provide a trustworthy conclusion that, if all that is alleged by Ms. Elster is true, Mr. Fishman rammed through the bounds of professionalism, trampled over the rules of gentlemanly conduct, and came to a stop just on the wrong side of basic human decency.  (Again, dear readers, if all that is alleged is true.)

Elster was eventually placed on medical leave by her doctor, and she filed a complaint with the Department of Employment and Housing.

This case has a lot of issue, of course, but of most interest to your humble blogger (and hopefully to his not-so-humble readers) is the argument that this claim should be confined to the workers’ compensation arena.  After all, Elster’s injury and need for disability leave are resulting from events occurring in the course of and arising out of employment, so shouldn’t her claim for intentional infliction of emotional distress be dealt with in the workers’ comp arena?

After all, she did file a claim (ADJ7623032) alleging injury to the digestive system and nervous system (psychiatric), among others.  The matter appears to have been resolved by Compromise and Release on July 7, 2011.

The Court of Appeal said “no.”  The reasoning?  The exclusivity rule of Workers’ Compensation is based on the compensation bargain – employees tend to get hurt once in a while, and they get benefits faster but less of them in the comp system.  “The compensation bargain does not encompass conduct that contravenes a fundamental public policy or exceeds the risks inherent in the employment relationship.”  (Should new hires get a warning? “Look out for Lester, you can reasonable expect to get sexually harassed by him.)

Because the Fair Housing and Employment Act prohibits discrimination and harassment in the workplace because of sex, the public policy is there barring the cause of action from entering the workers’ compensation arena.

But don’t let that fool you – it looks like Elster can still claim workers’ compensation benefits.  And recall, dear readers, that Carl’s Jr. had to deal with such a claim in the workers’ compensation arena as well as various other employers.

So, please, please, please let this be a lesson: don’t sexually harass your employees, don’t let your employees sexually harass other employees or their subordinates.  Let’s limit sexual harassment to new employee training videos, demonstrating what NOT to do.