In a groundbreaking development, the California Supreme Court recently issued a unanimous decision holding that widespread sexual favoritism in the workplace may create a hostile work environment for other employees. See Miller v. Department of Corrections.
The Miller case arose from the California Department of Corrections where the warden had at least three consensual affairs with his subordinates. Two of the employees under his supervision claimed they were passed over for promotions and advancement due to the warden's sexual favoritism. One of the warden's paramours, who rose through the ranks at an unprecedented rate of promotion, bragged that she would receive yet another promotion because if not, she would "take him down" because "she knew every scar on his body."
A trial court had dismissed the employees' lawsuit, holding that sexual favoritism did not constitute sexual harassment because female employees were in no worse position than their male co-workers who had also been passed over for promotion. The California Supreme Court reversed the court below and sent the case back down for a jury determination, holding that a "hostile work environment may be created even if the plaintiff is never subjected to sexual advances."
The California Supreme Court noted in its decision 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" does not ordinarily constitute sexual harassment, when sexual favoritism is sufficiently widespread, it may create an actionable hostile work environment for those who are not engaged in the affair. The court found that favoritism toward paramours may convey the demeaning message to employees that management views them as nothing more than "sexual playthings" and implies "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 court quoted portions of the guidelines issued in 1990 by the U. S. Equal Employment Opportunity Commission, which was then headed by Clarence Thomas, currently a United States Supreme Court Justice, who is no stranger to sexual harassment allegations. The EEOC guidelines state that "men and women" who find this conduct offensive can establish a violation if the conduct is "sufficiently severe or pervasive" to alter the conditions of employment and create an abusive working environment.
Although this is a California decision, employment lawyers everywhere are sounding the alarm for employers who wish to avoid this type of claim. Employers should treat claims of sexual favoritism seriously and investigate the allegations in the very same manner as other harassment complaints. Employers may also consider adopting non-fraternization policies discouraging office romances, particularly between supervisors and subordinates, to the extent allowed by state privacy laws. Finally, employers may consider using "love contracts" where employees who are involved in an office romance agree to abide by the company's policies against sexual harassment and to maintain proper professional conduct in the workplace.
The Miller decision will likely impact sexual harassment litigation for years to come as courts struggle with the difference between isolated and widespread sexual favoritism. Because employers now face greater risk from office romances, prudent employers should implement preventative policies as soon as possible.