Herbalife’s Afterlife Battle: California Supreme Court affirms severe or pervasive requirement for sexual harassment claims

The California Supreme Court, for the second time in the past four years, has affirmed that sexually harassing conduct must be either “severe” or “pervasive” to be actionable sexual harassment.  The decision stems from a high profile suit by Suzan Hughes, Herbalife’s deceased founder Mark Hughes’ ex-wife and mother to his only son, Alex, against Hughes estate trustee Christopher Pair. This was not the first legal battle between Ms. Hughes and Mr. Pair.  Upon his sudden death at age 44, Mark Hughes left an estate valued at approximately 400 million to Alex as sole beneficiary.  Thereafter, Suzan Hughes had an acrimonious relationship with the three trustees of that estate, including Mr. Pair, an Herbalife executive, prompting her to file seven prior lawsuits against the trust or the trustees.

Battle of the Beach House: In this eighth lawsuit, Suzan Hughes sued trustee Christopher Pair for sexual harassment and intentional infliction of emotional distress.   According to Ms. Hughes’s harassment complaint, on June 13, 2005, she requested the trust reimburse her for a two-month Malibu beach home rental for her and Alex, at a cost of $80,000 per month.  Three days later, the trustees unanimously approved a one-month rental, but not two.  The trustees declined reimbursement of the second month because (a) they did not have sufficient information from Suzan Hughes to justify the expense; (b) vacation expenses were Suzan Hughes’s responsibility under her marital settlement agreement; (c) a portion of the vacation home expense should be allocated to Ms. Hughes; and (d) the two-month rental was for Ms. Hughes’s benefit rather than Alex’s.  The trustees sent Ms. Hughes’s attorney written notice of their decision.

The King Tut “Exhibitionism”: After not speaking with each other directly for three years, Christopher Pair called Ms. Hughes shortly afterwards to invite her and Alex to join him and his son that evening at a King Tut exhibit.  During the call, Ms. Hughes complained about the trustees’ beach rental decision, to which Pair reportedly replied, “you know how much I love Alex and you in that special way” and Pair could be persuaded to give Ms. Hughes more rental time if she would “be nice” to him.  When Ms. Hughes replied that it was crazy for Pair to talk to her this way, he replied, “how crazy do you want to get?”  Pair gave Ms. Hughes his home phone number and told her to call him if she wanted to go to the exhibit that night.  Although she wrote down his home number, she declined his invitation.

Ms. Hughes brought Alex to the King Tut exhibit on her own, where she encountered Pair and his nine-year-old son in a hallway.  Ms. Hughes alleged that in her only direct encounter with Pair that evening, Pair crudely predicted she would yield to his sexual proposition, stating he would get her “on your knees eventually.”  He made this statement while the boys were standing nearby.  He then said hello to Alex and walked off.

Ms. Hughes filed for sexual harassment under California Civil Code section 51.9, which prohibits sexual harassment by a person engaged in a designated “business, service, or professional relationship.”  As a trustee, Christopher Pair was in such a qualifying relationship.

Pair Prevails: The trial court granted Pair’s motion for summary judgment, ruling that Ms. Hughes could not establish sexual harassment as the alleged harassment was neither “pervasive” nor “severe.”  The appellate court and Supreme Court affirmed.  Looking to hostile work environment workplace harassment cases for guidance, the Supreme Court ruled the harassment was not pervasive because “pervasive” requires a level of egregiousness that would alter their relationship and the harassment must be more than a few isolated incidents.  Here, the underlying professional relationship was not altered in any way (the trustees had already voted in favor of a shorter house rental) and the comments were made during one telephone conversation and one brief in-person encounter.

The Supreme Court also found that to constitute “severe” harassing behavior, a single harassing incident generally must include physical violence or the threat of physical violence to constitute sexual harassment.  In this case, Pair’s comment at the King Tut exhibit, although course, vulgar and grossly inappropriate was made during an isolated incident which did not reach the level of violent sexual assault or unwanted physical conduct.  The Court also believed his telephone conversation was “ambiguous” and did not support Ms. Hughes’ sexual harassment claim.

Lessons for the Work Place: Although this case did not involve an employer-employee relationship, Pair’s alleged behavior, if true, was unprofessional and out of line.  Clearly, such behavior should not be tolerated or condoned in the workplace, regardless of whether or not it is sufficiently “severe or pervasive” under state or federal employment law.  Employers should enact and enforce company harassment policy that prohibits such unprofessional conduct, and management should discipline violators, up to and including termination.   We are available to assist you in preventing workplace harassment.  To view our available dates for anti-harassment training seminars, please go to Bowles Law or contact us to schedule a seminar at your location.l

If you have any questions, please contact me or any of our other employment law attorneys.   Best, Cindy Bamforth