On Tuesday, July 18, 2005, the California Supreme Court issued its ruling in Miller v. Department of Corrections, an eagerly-anticipated decision pertaining to sexual harassment claims brought under California’s Fair Employment and Housing Act (“FEHA”).  According to Scott J. Witlin, a shareholder in the Los Angeles office of Ogletree Deakins, “[t]his decision weakens somewhat the long line of cases that held that favoritism toward a paramour was not discrimination against others.”
In a unanimous decision authored by Chief Justice Ronald M. George, the Court established the following rule:

[A]lthough 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 management.

In so holding, the Court adopted a rule set forth by the U.S. Equal Employment Opportunity Commission in a 1990 policy statement.
In the earlier court proceedings, the California Department of Corrections asked the trial judge to dismiss the workers’ claims for harassment and discrimination, which included allegations of widespread sexual favoritism by the warden toward three of his female subordinates.  Notably, the warden’s paramours admitted the nature of their relationship and even boasted about this; there were eyewitness accounts of public fondling; and the employees involved in the relationships received preference over those not involved with the warden, including repeated promotions (despite a lack of qualifications).
The trial judge dismissed the case, ruling that the evidence of the warden’s sexual favoritism did not constitute discrimination or harassment under the FEHA.  The Court of Appeal affirmed this decision, concluding that “a supervisor who grants favorable employment opportunities to a person with whom the supervisor is having a sexual affair does not, without more, commit sexual harassment toward other, nonfavored employees.”
In reversing the Court of Appeal’s decision, the Supreme Court stated that it was not disputing the principle that isolated preferential treatment of a sexual partner, standing alone, does not constitute sexual discrimination.  However, the justices continued, widespread sexual favoritism may create a hostile work environment in which the “message is implicitly conveyed that the managers view women as ‘sexual playthings’” or that “the way for women to get ahead in the workplace is by engaging in sexual conduct.”  In such cases, the existence of a hostile work environment is an issue of fact for the jury.
As a result of this ruling, Witlin noted, employers should review their policies regarding fraternization between supervisors and their subordinates to ensure that such relationships do not expose the company to potential liability.  Should you have any questions about this decision and its ramifications, please contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via e-mail at clientservices@ogletreedeakins.com.

Note: This article was published in the July 20, 2005 issue of the California eAuthority.

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