I'll leave it up to Norah Vincent to tell me if this was a frivolous case

The San Francisco Daily Journal had a column discussing the recently decided decision by the California Courts of Appeal in Herberg v. California Institute of the Arts. When I read the facts of the case, I couldn't decide whether to be horrified or amused. Maybe there's a better word for the emotion you feel when you come face to face with an absurd situation in real life that would have made a good plot for the Bob Newhart show. You tell me.

Mary Herberg is 82 years old and works for the California Institute of the Arts ["CalArts"] as a cashier in the accounting department. Her daughter Bobette Heuer works for the CalArts as the director of financial aid, and her granddaughter works for CalArts also.

CalArts is dogmatically liberal. CalArts will have no truck with the cultural philistines who might get offended by a crucifix immersed in urine or the Virgin Mary daubed with elephant feces. It has the following policy provision in its administrative manual:

CalArts’s policy on censorship is contained in its administrative manual: “A. CalArts does not censor any work on the basis of content; nor is any work at the Institute subject to prior censorship. [¶] B. If ny person objects to any exhibit or presentation, that person should convey the objection in writing to the student’s dean. The person will receive a written answer to the objection within 48 hours of its receipt. If the person is dissatisfied with the decision, he/she may appeal it to the [Exhibit Review] Committee. The decision of the Committee is final.”

So far so good. All very politically correct. Then the following occurs:

In the early morning hours of May 13, 1999, two students in the Foundation Art Class, Jeremy Ringermacher and Ariel Rosenberg, exhibited a piece they titled The Last Art Piece. The Last Art Piece is a pencil drawing, about 25 by 40 inches, depicting Herberg and other CalArts faculty, staff and students engaged in various sexual acts. Herberg appears in the center of the drawing, bare-breasted and facing the viewer. She is depicted sitting on top of a nude male faculty member, straddling his groin as though the two were engaged in sexual intercourse.

So the 82 year old Ms. Herberg is publicly represented nude as having sex with a CalArts faculty member. This artwork is used by the artists in critique sessions and is available for viewing by 100 people at a reception:

Throughout the day, the student artists participated in formal and informal critique sessions about he Last Art Piece and its effect on Herberg and the rest of the CalArts community. A reception held in the main gallery that evening was attended by about 100 people. Heuer, her husband and Dutro returned to the main gallery in the late evening to see if The Last Art Piece had been removed. It had not.

Although the 82 year old Ms. Herberg and her daughter complained about being unilaterally made the subject of this painting, she was told by the administration that she had to go through the procedures set forth in the administrative policy manual. [It was also repeated by the Court that Ms. Herberg never actually saw the drawing. The evidence suggests that there was a concerted effort to keep her from viewing the picture such as CalArts suggestion to the daughter that she take her mother out of town for a few days.]

The next day, the artists concluded that they had made their point about the merits of representational art and voluntarily removed the painting.

Ms. Herberg sued CalArts for sexual harassment under the "hostile environment theory." The hostile environment theory allows recovery for damages where a person has been subjected to conduct of a sexual nature which is either sufficiently pervasive or severe enough to change the "terms and conditions" of that person's employment. It was pretty much conceded that being depicted as a wanton harlot for 24 hours was not sufficiently pervasive to meet that prong of the hostile environment theory, so the question was whether the facts showed sufficient severity. The trial court concluded that it did not, and granted summary judgment.

The Court of Appeal agreed, holding:

Liability for Sexual Harassment May Not Be Imposed Based on a Single Incident That Does Not Involve Egregious Conduct Akin to a Physical Assault or the Threat of Physical Assault. Plaintiffs’ hostile work environment claim rests on a single incident: the display of The Last Art Piece in the main gallery for a period of about 24 hours. The trial court properly found that this incident, although doubtless upsetting to the plaintiffs, did not create a workplace that was “so discriminatory and abusive that it unreasonably interfere[d] with the job performance of those harassed.” (Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 923.)
Although Herberg and her relatives were understandably embarrassed and upset about the drawing, it is undisputed that the drawing was not intended to harass plaintiffs, but rather to make a point about representational art.

The Court concluded:

Quite simply, no reasonable jury could conclude that the presence of The Last Art Piece in the main gallery for 24 hours constituted severe harassment within the meaning of FEHA.

The commentary I read contained the following observation:

One moral of the story is for employees to consider the nature of the employer's business before choosing to work there."

It seems to me that both conclusions are incredibly cavalier and seem to create a liberal art school exception to the law of sexual harassment. The problem faced by this 82 year old woman is not only the 24 hours during which her likeness was on display for comment, critique and public viewing, it is that throughout the short remainder of her career, she will have to contemplate the unnecessary embarrasment to her family and herself every day she goes to work. ["You know, I think I've seen you before. Wait, weren't you the model for that drawing....."] As for the notion that an employee agrees to assume the risk of public humiliation by being depicted in a sexual performance without her consent, that is just bizarre. ["Well, Honey, one thing you should know before you start here is that every now and again we may post a drawing of you having sex with the sales department. We won't keep it up for more than 24 hours, so it won't be too severe from a work environment viewpoint."] One can imagine a jury's reaction to a defense that a plaintiff should have known that she would be groped occasionally when she went to work for the employer.

The hostile environment concept is the unholy godchild of the feminist movement. Society might be better off without it. But the concept does exist, and was Ms. Herberg's belief that she had been placed in an environment which had become severely hostile due to her employer's refusal to "censor" a sexual depiction of her really unreasonable?