California Supreme Court holds that favored treatment to employees who are willing participants in sexual relations with their supervisor can support a claim for sexual harassment brought by other co-workers

California employers who have permissive policies when it comes to office romances, watch out! Even though our state's sexual harassment laws do not prohibit such romances per se, the California Supreme Court recently examined the effect that such romances can have on others in the workplace, and the news is not good for employers. In Miller v. Department of Corrections, decided on July 18, 2005, a unanimous court held that an overt and widespread pattern of favored treatment or status to female employees who willingly had sexual or romantic relations with their supervisors can give rise to a sexual harassment claim brought by other co-employees (male or female), even though the claimants themselves were never subjected to any unwelcome sexual advances or demands for sexual favors.

In their lawsuit against the Department of Corrections, the two plaintiffs maintained that for several years, their supervisor, who served as the warden of the prison facilities where the plaintiffs worked, gave favorable job treatment to numerous female employees with whom the warden was having sexual affairs. The favorable treatment included, among other things, "pulling strings" by the warden to obtain transfers and promotions for these women, all of whom were willing participants in their sexual relations with the warden. Also, there was evidence that these women flaunted and bragged about their relationship with the warden, and that the warden had permitted at least one of these women to abuse her authority over other employees, including the plaintiffs, when these employees complained about the favorable treatment given to those who were having affairs with the warden. In short, the evidence appeared to show that it was commonly known in the workplace that the women with whom the warden was having sexual affairs were "untouchable," and were permitted to advance in their careers at a faster pace than other employees in the workplace.

The question before the Court was whether these facts supported a claim for sexual harassment as opposed to merely evidencing unfair preferential treatment to employees who willingly engaged in sexual relations with their supervisor. (The first is unlawful under federal and state anti-discrimination laws while the second is not.) Looking to the EEOC policy statement entitled "Policy Guidance on Employer Liability under Title VII for Sexual Favoritism," and also employing standards adopted from prior California case law, the Court concluded that, "while 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."

On the basis of this standard, the Court held that it was for a jury to determine whether the factual events, as set forth above, made out a claim for sexual harassment, and that the lower courts had erred in ruling in defendant's favor on its motion for summary judgment. In reaching this holding, the Court was careful to point out that "the presence of mere office gossip is insufficient to establish the existence of widespread sexual favoritism[;]" however, the evidence of such favoritism in the case before the Court, if believed, could lead a jury to "reasonably…conclude that the conduct created a work environment that qualifies as hostile or abusive to employees because of their gender."

Persons wishing further information or who have questions or comments about either this case or any of the cases that have appeared on this website can contact any of the attorneys at Epstein, Turner & Song.