Wednesday, Augu. 14, 02
Brief Display of Sexually Explicit Student Art Not Harassment, C.A. Rules
By a MetNews Staff Writer
An art school employee depicted in a sexually explicit drawing that was publicly displayed in the school’s main gallery for about 24 hours lacks a triable claim for sexual harassment, the Court of Appeal for this district ruled yesterday.
“We affirm the judgment of the trial court [in favor of California Institute of the Arts] because the undisputed facts establish the alleged harassment was not sufficiently severe or pervasive to alter the conditions of the plaintiffs’ employment and create a hostile work environment,” Justice Dennis Perluss wrote for Div. Seven.
The suit resulted from “The Last Art Piece,” a drawing by two students at the Santa Clarita institution commonly known as CalArts. The drawing, displayed for a day or so in 1999, depicted a number of students and employees of the school in a sexually explicit manner.
The students who created the work explained that they were trying to “evoke[ ] a critical response” and rebut the theory that “representational”—as opposed to “conceptual”—art is “passé and incapable of provoking a strong response.” One of the artists removed the work because, he said, he felt his point had been made.
One of the employees depicted, Mary Herberg, was an 82-year-old cashier in the accounting office. Her daughter and granddaughter were also employees at the school and saw the drawing after it was called to their attention by co-workers.
Before the drawing was removed, Herberg’s daughter filed a complaint under the school’s censorship policy. The policy prohibits content-based censorship and prior restraint, but permits student artwork to be involuntarily removed for appropriate reasons.
A request for the removal of a work must be submitted to a dean in writing. The dean has 48 hours in which to render a written decision, which may be appealed to a review committee, whose determination is deemed final.
In the case of “The Last Art Piece,” the drawing was removed before a decision was rendered. Herberg never saw the piece, but claimed that she was so upset after it was described to her that she left work immediately, suffered an asthma attack later that afternoon, had difficulty eating and sleeping, and never returned to work.
Herberg, along with her daughter and granddaughter and another depicted employee, sued. They claimed they had been subjected by reason of their sex to a hostile work environment in violation of the Fair Employment and Housing Act.
Los Angeles Superior Court Judge John P. Farrell granted the school’s motion for summary judgment.
Perluss said the ruling was correct.
A hostile-environment claim may be based on a single incident, the justice explained, but only if it was particularly violent or threatening. Even unwanted sexual touching, which was not remotely present in this case, has been held insufficient if it occurred only on a single occasion or on “isolated” occasions, Perluss noted.
“The nature of the alleged harassment in this case does not begin to approach the severity of rape or violent sexual assault or even milder forms of unwanted physical contact,” the justice wrote. “...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.”
Perluss also cited the response of school officials, who assisted in the preparation of the written objection and sought an expedited ruling prior to the piece being taken down voluntarily.
In a footnote, Perluss commented, that “[t]he context in which the alleged harassment took place also supports our decision.”
Neither the school’s anti-censorship policy nor the First Amendment insulate it from potential liability for sexual harassment, he explained. But the existence of the policy and wide dissemination created the reasonable expectation that explicit material will be displayed from time to time and “further militates against a finding of severe or pervasive harassment,” he said.
“Quite simply,” the justice wrote, “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.”
Attorneys on appeal were Lisa S. Kantor for the plaintiffs and Stuart W. Rudnick, Richard S. Conn and Kirsten C. Love of Musick, Peeler & Garrett for CalArts.
The case is Herberg v. California Institute of the Arts, B148834.
Copyright 2002, Metropolitan News Company