Nurse Julie Fisher contends she was the victim of sexual harassment while working at a San Pedro hospital--not so much because of what was done to her, but because of what was done to other women in her presence.
In a lawsuit that is due to go to a state appeals court, Fisher raises potentially far-reaching questions about the nature of sexual harassment. Do you have to be directly harassed to be a victim of sexual discrimination on the job? Or is it enough just to work in an environment where sexual harassment routinely occurs?
Ruling in the case Dec. 29, a Long Beach Superior Court judge answered the question by dismissing Fisher's claim that she had suffered from sexual discrimination because she repeatedly saw a staff gynecologist at San Pedro Peninsula Hospital touch other nurses in a sexual manner. Judge James M. Sutton Jr. concluded that Fisher had no legal justification to build her suit around the treatment of her colleagues, none of whom took action against the physician.
Offensive but Not Illegal
The doctor's "escapades with other female staff, while no doubt patently offensive, gives rise to no cause of action because the world is full of offensive jackasses, but there is no tort for being offensive," Sutton wrote.
Fisher, the judge said, was essentially claiming a "vicarious disgust" at the doctor's activities. And that, Sutton said, does not hold water in a court case, where there must be a "harasser" and a "harassee."
Fisher and her husband Cordell, a dental surgeon who practiced at the hospital and who filed the suit with her, say they are prepared to appeal the matter all the way to the U. S. Supreme Court. "I think it's kind of a setback for women that men still think this is OK," complained Fisher, who left the hospital staff in 1986 and now works for other hospitals on a temporary basis.
"I definitely want to test this," said Fisher's attorney, Patricia Barry of Grover City, who in 1986 won a precedent-setting sexual harassment ruling from the U. S. Supreme Court in a Washington, D.C., case. "The question is, does a woman have to put up with a doctor bothering her colleagues on the basis of their sex when they don't like it (and) she doesn't like it?"
She argued that Sutton's ruling amounted to "a frightening message to nurses."
The suit named the hospital, gynecologist Dr. Barry Tischler, and a second physician, whom the Fishers charged with retaliating against them after they complained about Tischler. Attorneys for both Tischler and the hospital declined comment on the ruling, except to say that their clients will fight any appeals. Barry said she will file an appeal this month with the 2nd District state Court of Appeal.
Fisher, a nurse for 10 years, charged in the lawsuit that Tischler sexually insulted her and touched her on various occasions after she joined the hospital staff in 1981. After she complained to the hospital administration, Tischler wrote a letter of apology and left her alone, she states in court papers. But soon thereafter Tischler purportedly turned his attentions to other nurses.
The suit claims that Tischler, while in Fisher's presence, harassed her fellow nurses by pulling them "into his lap, hugging and kissing them while wiggling, making offensive statements of a sexual nature, moving his hands in the direction of a woman's vaginal area, grabbing women from the back with his hands on their breasts" and "throwing a woman on a gurney. . . ."
Fischer also charged that Tischler made lewd remarks about anesthetized women patients in the operating room, where she worked.
Judge Sutton said during the court proceedings that the suit failed to provide specific details about the alleged incidents, but he refused to let Barry interview the nurses, saying that the legal issues of the case first had to be settled.
Hospital President Rod Aymond said that since none of the other nurses ever complained about Tischler, who remains on the San Pedro staff, the administration had no grounds to discipline him. The court action neither proved nor disproved Fisher's allegations about Tischler's conduct, Aymond noted.
Along with discarding Fisher's claims that the harassment of co-workers created a hostile, discriminatory environment, Sutton said that Fisher could not sue over Tischler's treatment of her because the incidents directly involving her were too old. Sexual discrimination claims brought under the California Fair Employment and Housing Act must be filed within a year of the alleged harassment.
Wrote Sutton: "While Tischler may have continued his sophomoric antics with other female staff members, extensive as that may have been . . . her vicarious reaction to the travail of others is not sexual harassment directed to her for which she may have a cause of action. Any cause of action claimed would in any event be barred by the Statute of Limitations."
In arguing that Tischler's treatment of other nurses amounted to sexual discrimination, Barry compared the situation with one in which racial slurs create a hostile office atmosphere for minority workers. She also cited a 1985 federal appeals court ruling in one of her previous discrimination cases involving a female bank manager. In that ruling, the judges said that even a woman who was not herself the object of sexual harassment might be able to claim sexual discrimination under federal civil rights laws if she worked in an atmosphere in which harassment was pervasive.
Barry could find no such rulings in California law, however. She said the case was filed in state, rather than federal courts, because the Fishers sought punitive damages and they could only obtain them in state courts.
Fisher also sued for reinstatement to her job, saying she quit because Tischler's actions had made work unbearable. Cordell Fisher no longer practices at the hospital.