Showing Favoritism: California Supreme Court Allows Co-Workers To Sue For Sexual Harassment Based On Supervisor's Romantic Workplace Relationships
August 2, 2005
The Miller Decision
In a July 18, 2005, opinion in MILLER v. DEPARTMENT OF CORRECTIONS, the California Supreme Court held that widespread favoritism by a supervisor toward an employee with whom the supervisor is having a consensual sexual affair may create an actionable hostile work environment for which other employees may assert claims of sexual harassment under California’s Fair Employment and Housing Act (FEHA).
The plaintiffs in Miller, female employees of the California Department of Corrections, asserted claims against their employer for discrimination, sexual harassment, and retaliation under FEHA, based on allegations of favoritism by their supervisor toward three other subordinate female employees with whom the supervisor had sexual affairs. Specifically, the plaintiffs alleged that the supervisor promoted the women with whom he had sexual relationships over other, better qualified employees, secured favorable transfers for his paramours, and allowed them to verbally and physically abuse employees who complained of the favoritism.
The trial court granted summary judgment in favor of the employer and the appellate court affirmed the decision, holding that preferential treatment of an employee with whom the supervisor is having a sexual affair does not, without more, constitute sexual harassment of non-favored employees.
The California Supreme Court disagreed, reversing the grant of summary judgment for the employer and remanding the case for trial. While acknowledging that isolated incidents of favoritism would not ordinarily constitute sexual harassment, the Court held that favoritism that is "sufficiently widespread …may create an actionable hostile environment in which the demeaning message is conveyed to female employees that they are viewed by managers as ‘sexual playthings’ or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or the management." Rejecting the employer's concern that this holding would force employers to inject themselves into employees’ personal lives, the Supreme Court stated, "it is not the relationship, but its effect on the workplace, that is relevant."
Impact on Your Organization
While consensual romantic relationships between supervisors and subordinates may not be expressly prohibited by all employers, it has long been understood that such relationships present risks from a workplace harassment perspective. Now they can expose the employer to liability when other employees are negatively impacted by the supervisor's conduct in favoring his or her paramour over other more qualified employees, even though the other employees are not directly involved in the relationship. The EEOC's Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism cited by the California Supreme Court in its decision is consistent with the Miller holding that both male and female employees who are not direct victims of sexual conduct may nevertheless raise sexual harassment claims where the favoritism is considered severe and pervasive (thus creating a hostile work environment), and where co-workers are denied employment benefits as a result.
Employers should view the prevention of sexual favoritism by supervisors in the workplace as an important part of maintaining a harassment-free environment. In California, such a policy must, of course, be balanced with a recognition of employee privacy rights.
Best Practices to Avoid Sexual Harassment Liability Policy Review:
Review your current policies to ensure compliance with current federal and state law and consistency with your actual practice.
Non-Fraternization: If you do not have a non-fraternization policy, consider adding one or adding language to your workplace harassment policy that prohibits sexual favoritism by supervisors and instructs employees who feel they have been unfairly treated as a result on how to report such conduct pursuant to the policy.
Training: California law specifically requires employers of over 50 employees to conduct sexual harassment training for supervisors. To prevent sexual harassment in the workplace and to instruct employees on how to report a complaint, employers should provide sexual harassment training to all employees. Supervisory training conducted by employers of less than 50 is also highly recommended to insure that supervisors are educated on how to avoid legal liability.
Open-Door Policy: Be sure that employees know that you have an open door policy so that they feel free to communicate with management and human resources about any potentially serious workplace problem.
Be Aware of Employee Conduct: Employers should keep their eyes and ears open for any conduct that might give rise to a later claim, and deal promptly with any potential issues. Managers and supervisors should be vigilant of what is happening in their workplaces in order to quickly spot emerging issues and deal with them proactively.
Investigation/Corrective Action: Conduct a prompt and thorough investigation in the event of any complaint and take appropriate corrective action in response.
For more information on this matter, please contact one of the attorneys in Sonnenschein’s employment practice group.
Contacts:
Chicago
Roger T. Brice (312) 876-3112 rbrice@sonnenschein.com
Jeffrey S. Goldman (312) 876-8955 jgoldman@sonnenschein.com
Richard L. Marcus (312) 876-8177 rmarcus@sonnenschein.com
Kansas City
Mark P. Johnson (816) 460-2424 mjohnson@sonnenschein.com
Trina LeRiche (816) 460-2427 tleriche@sonnenschein.com
Los Angeles
Martin J. Foley (213) 892-5004 mfoley@sonnenschein.com
San Francisco
Gayle M. Athanacio (415) 882-5077 gathanacio@sonnenschein.com
Sandra R. McCandless (415) 882-2412 smccandless@sonnenschein.com
Washington
Amy L. Bess (202) 408-6444 abess@sonnenschein.com
These materials should not be considered as, or as a substitute for, legal advice and they are not intended to nor do they create an attorney-client relationship. Because the materials included here are general, they may not apply to your individual legal or factual circumstances. You should not take (or refrain from taking) any action based on the information you obtain from this document without first obtaining professional counsel and you should not send us confidential information without first speaking to one of our attorneys and receiving explicit authorization to do so.
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