In a case involving the mother of the heir to the Herbalife fortune, a divided California appeals court has made it harder for plaintiffs to sue providers of professional services for sexual harassment.

A 2-1 majority of the 2nd District Court of Appeal ruled that Suzan Hughes has no triable claim against a former Herbalife executive because she could not prove “severe” harassment as it has been defined in employment discrimination cases –- even though she sued under a law that applies to harassment outside the workplace.

Hughes alleged Christopher Pair violated that law while acting as a trustee of the Hughes Family Trust. Her son Alex, who is a minor, is the heir of Herbalife founder Mark Hughes, who died in 2000, leaving an estimated fortune of $350 million.

Whatever the context, “the ultimate issue of whether a defendant’s conduct is pervasive or severe comes down to the same considerations,” the majority opinion said, finding Pair's alleged behavior “grossly inappropriate” but not actionable under Civil Code Section 51.9.

The statute provides a cause of action when there is “a business, service, or professional relationship” between the plaintiff and defendant and the defendant made sexual advances, solicitations, sexual requests, or demands for sexual compliance by the plaintiff that “were unwelcome and pervasive or severe.”

But in dissent, Justice Orville A. Armstrong said Hughes's case should not be subject to “rules developed for the workplace context” and Section 51.9 “must be interpreted based on the plain and ordinary meaning of the words used therein.”

Suzan Hughes said in her suit that Pair verbally harassed her after she asked him and the other two trustees to give her $160,000 so she could pay for Alex's two-month summer vacation in a rented Malibu beach home. The trustees had agreed to only one month.

During a phone conversation, the complaint alleged, Pair said Hughes could get the second month "if she would be nice to him" and invited her to call him at home "when you're ready to give me what I want." When they met at a public function later the same day, he allegedly told her –- in Alex's presence -- that "I'm going to fuck you one way or another."

In affirming a trial judge's summary dismissal of the case, the 2nd District majority cited an employment law case that found the alleged harassment of an art school employee was not severe enough to constitute a hostile work environment.

As in Herberg v. California Institute of the Arts, 101 Cal.App.4th 142 (2002), “the nature of the alleged sexual harassment of Suzan by Pair 'does not begin to approach the severity of rape or violent sexual assault or even milder forms of unwanted physical contact,'” Justice Sandy R. Kriegler wrote.

But applying such precedent to Hughes's claim seems like mixing legal apples and oranges. As Kriegler points out, Section 51.9 makes no reference to hostile environment harassment and, in the context of a trustee's relationship with the mother of the trust beneficiary, Pair's alleged advances could certainly be defined as severe.

Discussing Hughes's allegations of emotional distress, Justice Armstrong noted that

When Suzan was asked at her deposition if she sought mental health counseling as a result of Pair’s statements, Suzan’s counsel responded that “This is the kind of emotional distress you go to a lawyer for, not a psychiatrist."

By Matthew Heller
9/12/07