By Jack Steven Sholkoff (Los Angeles)
Originally published July 19, 2005
Dramatically increasing the potential breadth of sexual harassment law, the California Supreme Court held on July 18 that an employee may bring a claim for sexual harassment against an employer when a supervisor engages in consensual sexual conduct with other employees that has the effect of creating a "widespread" atmosphere of sexual favoritism in the workplace. Although the Court specifically rejected the notion that an isolated incident of a supervisor’s favoritism of a paramour would be actionable, the Court’s decision will, nonetheless, force employers to closely monitor the conduct and relationships of the their supervisors and employees in order to prevent any possibility that "paramour favoritism" becomes a "widespread" problem within the workplace.
In Miller v. Department of Corrections, 2005 Cal.LEXIS 7606 (July 18, 2005), the female plaintiff worked at the Department of Corrections as a correctional officer at locations where Kuykendall (a male) was the warden. The evidence showed that Kuykendall had engaged in three consensual affairs with women subordinates, but did not have any kind of sexual relations with Miller. Kuykendall’s paramours, according to Miller, received preferential treatment concerning promotions and transfers even though, in at least one instance, Miller was more qualified, and Kuykendall had to reject the recommendation of a promotion board in order to promote his paramour instead of Miller. The record also showed that most people in Kuykendall’s unit knew of his affairs, and there was a general perception that those who had affairs with Kuykendall received promotions at a faster rate than those who did not. Worse yet, according to Miller, Kuykendall refused to assist Miller and another plaintiff when they complained that they had been severely mistreated by one of his paramours as well as another employee-supervisor. Simply put, there was extensive evidence that Kuykendall was favoring his paramours at the expense of others in the workplace.
Relying upon guidance from the Equal Employment Opportunity Commission, the Supreme Court stated that "although isolated instances of sexual favoritism in the workplace do not violate Title VII [and California law], widespread sexual favoritism may create a hostile work environment in violation of Title VII [and California law] by sending the demeaning message that managers view female employees as ‘sexual playthings’ or ‘the way for women to get ahead in the workplace is by engaging in sexual conduct.’" The Court stressed that its holding did not mean that a single incident of favoritism toward a paramour automatically created a hostile working environment – as long as it remained isolated and discreet. The Court opined that in this situation, a female charging that she was denied promotion because she was not a paramour would be no different from the men in the workplace (or other women) who also did not receive favors. In that instance, the alleged unfair treatment would not be based upon sex.
Conversely, when the favoritism of paramours is widespread, other employees may start to believe that they must provide sexual favors to advance in the workplace or feel that they are demeaned as "sexual playthings" by the mere existence of the numerous affairs. Such was the case in Miller, as the Court stated, that the environment was permeated with favoritism beyond just "office gossip," but included participants admitting and discussing the affairs in the workplace; the favored women boasting of the affairs, and participants in the affairs engaging in incidents of public fondling. In addition, the supervisor who had the affairs repeatedly promoted paramours who were clearly unqualified, and admitted that he could not control his paramours’ actions toward other employees.
Recognizing that its decision might put employers in the position of becoming involved in employees’ personal relationships, the Court stated that it was not the consensual relationship itself that was problematic, but it is the effect of the relationship upon the workplace that creates potential liability. While this may be of theoretical importance to the Court, it is of limited utility to employers. An employer may only learn of a consensual relationship after it has had a demeaning effect on the workplace. At that point, the employer will face significant liability for sexual harassment. As a result, employers will have to not only discourage (or nearly prohibit) workplace affairs, but will have to investigate them, all in order to prevent the development of a widespread problem of sexual favoritism in the workplace.
The Court’s decision in Miller v. Department of Corrections is consistent with California’s recent trend of strengthening the protections against sexual harassment in the workplace. While perhaps predictable in this sense, the Court’s decision in Miller will, nonetheless, create new sexual harassment claims where none existed. Moreover, the Court’s decision will likely have deleterious effects upon employee privacy and impose significant and what may seem as unfair burdens upon employers to monitor employee personal relationships in an effort to avoid sexual harassment – as defined by the Court in Miller – from developing in the workplace.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.