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California Supreme Court Expands Sexual Harassment Liability to Cover Victims of Romantic Favoritism in the Workplace

August 2005

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Romantic favoritism by the boss of workplace paramours has long been a problematic issue for employers and employees alike: The law rarely finds such consensual relationships illegal, but the propriety of their occurrence rings hollow for most. The California Supreme Court recently was presented with facts that defined the outside limits of acceptability of such relationships, in Miller v. Dept. of Corrections, 2005 Cal. LEXIS 7606 (July 18, 2005). In pronouncing the workplace in Miller “out of control,” the Supreme Court reversed summary adjudication in favor of the employer on a claim under the California Fair Employment & Housing Act (Gov’t Code § 12940 et seq.) and concluded that “although isolated instances of sexual favoritism in the workplace do not violate Title VII, widespread sexual favoritism may create a hostile work environment in violation of Title VII by sending the demeaning message that managers view female employees as ‘sexual playthings’ or that ‘the way for women to get ahead in the workplace is by engaging in sexual conduct.’”

“The poisonous environment targeted by Miller was a sexually-charged workplace where merit-based promotion, training and discipline were clearly inapplicable to romantic favorites. Miller almost certainly will give new legs to previously unactionable office liaisons.”

In Miller, a male warden at a women’s prison was simultaneously involved in consensual sexual relations with three of his five female subordinates, all of whom were actively engaged in pursuit of career opportunities, training and promotions. The two remaining employees, who eventually became the plaintiffs in this landmark decision, were not sexually involved with the male supervisor. Importantly for the case, neither plaintiff was asked for sexual favors nor threatened if she refused sexual advances. However, the three consenting employees received special treatment such as unfair promotions over the plaintiffs, scheduling and training preference, reduced accountability, and general favoritism. The existence of this harem arrangement was well-known to all participants, who squabbled in jealous rivalries during work hours and openly engaged in indiscreet behavior with the supervisor during department social functions. To add further zest to these facts, a female supervisor was introduced into this dysfunctional workplace after the heterosexual relationships had fomented for about three years; she too began a romantic relationship with one of the three consenting female subordinates.

After a series of complaints no longer could be ignored by Internal Affairs, an investigation ensued, requiring both plaintiffs to participate and provide statements. Despite assurances of confidentiality, the plaintiffs’ statements were revealed to both the male and female supervisors who, along with one of the consenting subordinates, retaliated against the plaintiffs by interfering with the performance of their duties, demeaning them in group meetings, and ostracizing them. Moreover, the subordinate engaged in an altercation with one of the plaintiffs that resulted in a physical assault and entrapment in a locked office for two hours.

In finding the workplace so hostile as to constitute a sexually harassing environment, the California Supreme Court split from the national trend disfavoring consensual romance as actionable. Relying on EEOC Compliance Manual guidelines1 in interpreting the scope of liability under the Fair Employment and Housing Act (California’s anti-discrimination statute), the Supreme Court opined that under certain circumstances sexual favoritism could create a hostile work environment by implying that supervisors view their female subordinates in a sexual – rather than professional – manner, and that engaging in consensual sexual behavior is the only way for females to advance their careers.

Previous cases had concluded that romantic favoritism is not actionable under Title VII because such behavior negatively impacts both men and women equally and is not directed toward any member of a discrete class. For example, in Preston v. Wis. Health Fund, 397 F.3d 539 (7th Cir. 2005), the Court of Appeals for the Seventh Circuit upheld summary judgment for the employer on the basis that romantically motivated favoritism toward a female subordinate had no effect on the composition of the workplace, especially since the disadvantaged competitor was as likely to be another woman as a man. Similarly, in DeCintio v. Westchester County Med. Ctr., 807 F.2d 304 (2d Cir. 1986), the Court of Appeals for the Second Circuit held that proscribed differentiation between the sexes must be a distinction based on gender, not on one’s sexual affiliations.

But Miller takes a broader view of the impact of such egalitarian favoritism. The Supreme Court held that widespread sexual favoritism may be actionable under FEHA because of the effect it has on all members of the workplace. The Court further held that a triable issue of material fact existed as to whether Defendants’ behavior created a hostile work environment sufficiently severe or pervasive to alter the working environment of both men and women. The Court also opined that widespread sexual favoritism could amount to quid pro quo sexual harassment if the favoritism created a reasonable belief that managers would only promote employees who engaged in sexual liaisons with their supervisors. Hence, liability was not triggered by the romantic relationship between the co-workers itself – which equally impacted both men and women – but rather by the effect the relationship had on the workplace.

The unusually aggravated facts in Miller enabled the Court to declare when “enough is enough” and, in that sense, Miller is a groundbreaking case. Its support, however, is based on long-standing EEOC guidelines and lower appellate court FEHA rulings that recognized both men and women can complain about a hostile environment, even when they are not the direct victims of gender-based hostility (Mogilefsky v. Sup.Ct., 20 Cal.App.4th 1409, 1414-1415 (1993)) and that a hostile environment can exist even without sexual conduct (Accardi v. Sup.Ct., 17 Cal.App.4th 341, 348 (1993)).

At least in California, Miller promises to generate employer reactions ranging from stronger policies against nepotism and intra-corporate fraternization, to the requirement that employees voluntarily reveal extra-curricular social relationships to management so that their consensual nature can be documented (the so-called “love contract”). The poisonous environment targeted by Miller was a sexually-charged workplace where merit-based promotion, training and discipline were clearly inapplicable to romantic favorites. Miller almost certainly will give new legs to previously unactionable office liaisons.


1 EEOC Policy Statement No. N-915-048, Policy Guidance on Employer Liability under Title VII for Sexual Favoritism.


This Alert was written by Diana Scott and Tiffany Mitchell in the Los Angeles office. Please contact Ms. Scott or Ms. Mitchell at (310) 586-7700, or your Greenberg Traurig liaison if you have any questions regarding the subject matter of this Alert.

© 2005 Greenberg Traurig

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