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California Supreme Court Rules that Sexual Favoritism Can Constitute A Hostile Work Environment

July 25, 2005

On July 18, 2005, the California Supreme Court ruled unanimously that supervisors' sexual relationships with subordinates may create a hostile work environment for co-workers, even if those co-workers were not directly propositioned by these supervisors. Miller v. Department of Corrections, 05 C.D.O.S. 6268 (July 18, 2005). Although the Court cautioned that an isolated workplace affair may not be actionable, it noted that a hostile work environment may exist when sexual favoritism in the workplace is sufficiently widespread. This case is significant because it expands employer liability for sexual harassment under California's Fair Employment and Housing Act by allowing employees to bring claims based on consensual sexual relationships between supervisors and subordinates.

The plaintiffs in Miller were two female prison guards who complained that three co-workers were having sexual relations with the prison warden. The plaintiffs alleged that the warden gave these co-workers promotions and favorable schedules as a result of the sexual relationships. In addition, both plaintiffs claimed that they were subjected to retaliation when they complained about the affairs. For example, plaintiff Miller alleged that she was physically assaulted on one occasion, lost a reserved parking spot previously granted by reason of her disability, and was often given onerous duties. The other plaintiff claimed she was demoted and verbally attacked as a result of having complained about the affairs. Both employees eventually resigned from their employment with the Department of Corrections.

The plaintiffs subsequently filed a lawsuit against the Department of Corrections alleging, among other things, that they had been subjected to a hostile work environment in violation of the Fair Employment and Housing Act. The trial court granted summary judgment for the Department of Corrections and the appellate court affirmed that decision, concluding that the conduct in question did not support a claim of sexual harassment because the plaintiffs were not themselves harassed and were treated no differently than similarly situated male co-workers.

The California Supreme Court reversed and remanded the case for trial. In so doing, the Court relied in part on a policy statement issued by the Equal Employment Opportunity Commission ("EEOC") that examined the question of sexual favoritism in the workplace under Title VII of the Civil Rights Act of 1964. In its 1990 policy, the EEOC observed that an isolated instance of favoritism towards a paramour may be unfair but that it does not discriminate against male or female employees in violation of Title VII, because both men and women are disadvantaged for reasons other than their gender. In contrast, according to the EEOC, if favoritism based upon the granting of sexual favors is widespread in the workplace, both males and females who do not welcome that conduct may establish a hostile work environment claim, regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly participated in the sexual conduct. This is because, in such circumstances, a message is conveyed that the managers view employees as "sexual playthings," thereby suggesting that the way for women to advance in workplace is by engaging in sexual conduct, creating an atmosphere that is demeaning and potentially offensive to both men and women.

In approving the standards discussed in the EEOC policy, the Miller Court also noted that mere office gossip would not be sufficient to establish the existence of widespread sexual favoritism. But, in the case before it, the evidence of favoritism far exceeded office gossip and included admissions by participants concerning the sexual relationship, boasting by the participants, and promotions despite lack of qualifications. Given these facts, the Court concluded that a jury would have to determine whether the plaintiffs were subjected to a sexually hostile work environment.

Sexual relations between supervisors and subordinates pose a host of employment problems. If the employer learns of the relationship, how can it assure itself that it is indeed consensual, or that it will not be characterized as nonconsensual later on? If other employees know of the relationship, what can the employer do to prevent a perception that employment decisions are based on favoritism as opposed to merit? And what can the employer do without infringing on the privacy rights of employees and California's protection for lawful, off-duty activity? (See California Labor Code Amendment Protects Employee Off-Duty Conduct.) California employers can now add to that list the risk that each of the employees not involved in the relationship has a potential claim for sexual harassment.

If nothing else, Miller reinforces the need for employers to train their managers to avoid actual or perceived favoritism among employees. This can be included in the sexual harassment training which California law now mandates. (See New California Law Requires Sexual Harassment Training For Supervisors Every Two Years.) Employers also need to be alert to these situations and must be prepared to deal with them proactively, tactfully, and discreetly.