California's Supreme Court has unanimously decided that favoritism shown an employee in a romantic relationship with a supervisor may, if sufficiently widespread, create an actionable hostile work environment resulting in unlawful harassment of other employees. The court found the basis for potential sexual harassment liability even when no offensive conduct is directed at the other employees.
Reversing the judgment of the Court of Appeal, the Supreme Court concluded that the evidence created at least a triable issue of fact on the question whether a prison warden's conduct constituted sexual favoritism widespread enough to constitute a hostile work environment.
The decision marks a significant expansion of sexual harassment law in California since prior cases restricted actionable harassment claims to employees who were either directly involved in sexual liaisons at the worksite or recipients of unwanted sexual advances on the job [Miller v. Department of Corrections, Cal. Sup. Ct. No. S114097 (July 18, 2005)].
The plaintiffs were former employees at the Valley State Prison for Women in Chowchilla. They complained that the former warden showed favoritism toward three other female prison employees with whom he was having simultaneous sexual affairs. Neither of the plaintiffs was sexually involved with the warden.
After they complained, the plaintiffs were subjected to repeated retaliation by both the warden and his paramours. The alleged unlawful conduct included unfair denial of promotion, repeated berating in front of other employees, subversion of authority, reduction of responsibilities, loss of preferred parking privileges, loss of supplemental "inmate pay," demotion, humiliation and mistreatment. All the plaintiffs' complaints to the warden and other prison executives either went unanswered or resulted in additional retaliatory acts.
Citing increasing stress and intolerable conditions of employment, the plaintiffs resigned and subsequently filed suit against the Department of Corrections, asserting that the warden's conduct constituted sexual harassment under the California Fair Employment and Housing Act. The trial court granted summary judgment against the plaintiffs, and the Court of Appeal affirmed that decision. Both courts reasoned that the plaintiffs "were not themselves subjected to sexual advances and were not treated any differently than male employees."
The California Supreme Court rejected the reasoning of the lower courts, stating that "[i]n focusing upon the question whether the sexual favoritism was coercive, the Court of Appeal overlooked the principle that even in the absence of coercive behavior, certain conduct creates a work atmosphere so demeaning to women that it constitutes an actionable hostile work environment." The high court concluded that "although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management 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."
The Miller decision significantly expands the law on sexual harassment in California. Prior cases restricted actionable harassment claims to situations where employees were either directly involved in sexual liaisons at the worksite or recipients of unwanted sexual advances on the job.
A spokesman for the California Attorney General's office called Miller a warning that "tells employers that having an antinepotism policy is not enough." They "need to do more to make sure … [they] have a hostility-free work environment even when workers are having consensual sexual relationships."
Michael Lotito, Jackson Lewis partner and head of the firm's management training practice group, calls Miller a significant decision that expands the grounds for employee harassment actions against employers. Mr. Lotito advises that the decision, at a minimum, requires employers to reexamine anti-nepotism and anti-harassment policies and to assess the effectiveness of any workforce training on sexual harassment prevention that has already been done or is being planned. (In its 2004 annual "on the job" survey, Jackson Lewis found that 20% of the respondents had a co-worker dating policy in place.)
Mr. Lotito cautions that the mandated anti-harassment supervisory training under California AB 1825, which must be completed beginning December 31, 2005, should now include the lessons of the Miller decision. "This decision increases the risk of liability for California employers, and for those that have not yet trained their workforces in compliance with AB 1825, including this new ground for actionable claims, the stakes have gone even higher."
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Michael J. Lotito Partner San Francisco Office 199 Fremont Street 10th Floor San Francisco, CA 94105 LotitoM@jacksonlewis.com (415) 536-6326 Fax: (415) 394-9401 |
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