Recent California Supreme Court Case Generates Greater Risk for Employers:

A Workplace Romance can Create a Hostile Environment

By Monica Sanchez

In a groundbreaking decision, the California Supreme Court in Miller v. Department of Corrections, Cal. Sup. Ct. No. S114097 (July 18, 2005), ruled that California employees can establish an actionable claim against their employers for sexual harassment if “sexual favoritism” between a supervisor and a subordinate, creates a hostile working environment for other employees.  The Court held that consensual romantic relationships in the workplace might constitute sexual harassment if the sexual favoritism is widespread enough to establish a hostile work environment claim under the California unlawful harassment law, the Federal Employment Housing Act (FEHA). 

In Miller, the plaintiffs, two former employees at the Valley State Prison for Women claimed that the warden of the prison gave considerable favorable treatment to numerous female employees with whom he was having sexual affairs.  The women alleged and the Court found that such conduct, constituted sexual harassment in violation of FEHA. The FEHA expressly prohibits sexual harassment in the workplace.  It is an unlawful employment practice for an employer to harass an employee because of sex.  Gov. Code, section 12940, subd. (j)(1).  

Over a period of several years, the warden, who served in a management capacity, engaged concurrently in sexual affairs with three subordinate employees.  The warden promoted these women despite their lack of qualifications and based on sexual favors.  Plaintiff’s complained that these affairs were made public in the workplace.  One of the women, engaged in an affair with the warden, admitted that she would “take him down” with her knowledge of “every scar on his body” if he did not promote her instead of Plaintiff. 

IMPACT ON EMPLOYERS

In reversing the lower court’s decision, the California Supreme Court found that a hostile work environment can be created even if Plaintiff’s are never subjected to sexual advances.  The Court stated, 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 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 standard for liability that is created by this decision turns on a fine distinction categorizing the “sexual favoritism” as isolated or widespread.  This decision is problematic for employers as it will likely lead to numerous lawsuits from employees who may challenge the decision of a supervisor who is involved in a romantic relationship with a subordinate employee.  This fine distinction creates a daunting task for employers as they try to regulate this behavior in the workplace. 

The Court rejected defendant’s concerns that adopting Plaintiff’s position would “inject the courts into relationships that are private and consensual and that occur within a major locus of individual social life for both men and women—the workplace.”  The Court reasoned that FEHA clearly contemplates some intrusion into personal relationships between a supervisor and a subordinate, based upon an asserted quid pro quo claim.  

All relationships, even consensual relationships, between a supervisor and a subordinate can create potential liability for an employer.   It is not the relationship, but its effect on the workplace, that is relevant under the applicable legal standard.  It is important to note that California employers are prohibited from taking adverse actions against employees who engaged in lawful off-duty conduct, which would include romantic relationships.  Labor Code section 96(k).  An employer is faced with balancing the privacy rights of an employee and protecting themselves from the risk of a discrimination claim. 

WHAT EMPLOYERS NEED TO DO

Miller serves as a reminder of the risk employers face in dealing with the law on sexual harassment in California.  This Supreme Court decision increases the grounds of an employee sexual harassment claim against any employer. 

Employers are encouraged to:

1.           Review their anti-harassment and non-fraternization policies located in their employee handbooks and any office memorandum to ensure that the policies are current and up to date. 

2.           Schedule and complete a Mandatory Sexual Harassment Training and Education Seminar, as required by California AB 1825. 

3.           Re-evaluate investigation procedures to ensure that claims of sexual favoritism are taken seriously and investigated in the same manner as all claims of sexual harassment.

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Monica Sanchez is an employment associate at Kring & Chung, LLP’s Irvine office. 

You can reach Ms. Sanchez at (949) 261-7700.

** The information contained herein is for informational purposes only and should not be relied upon in reaching a conclusion in a particular area. The legal principles discussed herein were accurate at the time this article was authored but are subject to change with time. Applicability of these same legal principles may differ substantially in individual situations. Please consult an attorney before making a decision in a particular area using only the information provided in this article.