• The California Supreme Court Has Given Employers Another Reason To Be Careful of Office Relationships
  • January 23, 2006 | Author: C. Michael DeCamps
  • Law Firm: Sands Anderson PC - Richmond Office
  • Management lawyers have frequently counseled employers that employees involved in relationships should be separated on a professional level. This advice has always been particularly important in the situation where a supervisor is dating one of his or her subordinates. Traditionally, this advice has been intended to prevent situations where, if the relationship ends, the subordinate later claims the relationship was not consensual and asserts a sexual harassment complaint. The California Supreme Court recently issued a decision which give employers even more reason to be careful of these types of relationships in the workplace. The court ruled that an employee may pursue a claim for sexual harassment based on favoritism of other employees who engage in consensual sexual affairs with a supervisor.

    Sexual harassment is a form of sex-based discrimination. There are two types of sexual harassment: quid pro quo harassment and hostile work environment. Quid pro quo harassment involves a situation where an employee's job is conditional upon his or her submission to sexual advances. Hostile work environment involves a situation where inappropriate conduct in the workplace creates an intimidating hostile or abusive environment. Generally, to prevail, an employee asserting a hostile work environment claim must demonstrate that the conduct complained of was sufficiently severe and pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.

    The courts have typically rejected claims of illegal harassment based on a supervisor's favoritism of an employee with whom the supervisor is sexually involved. In doing so, the courts have reasoned that an isolated instance of favoritism toward a paramour may be unfair, but it does not discriminate against anyone "because of their sex" because both men and women are equally disadvantaged by the situation for reasons other than gender.

    Expanding beyond these previous rulings, in Miller v. Dep't of Corrections, 36 Cal. 4th 446 (2005), the California Supreme Court held that where various relationships between a supervisor and his employees creates a perception that advancement of women in an organization is dependent upon sexual favors rather than merit, male and female employees may pursue claims for sexual harassment. Plaintiffs in Miller were two former employees of the Department of Corrections who alleged violations of California anti-discrimination laws based upon their boss' favoritism of various subordinate employees with whom he was sexually involved. Analyzing Plaintiffs' claims, the Court focused upon a policy statement from the Equal Employment Opportunity Commission (the "EEOC") regarding sexual favoritism:


    [where] favoritism based upon the granting of sexual favors is widespread in the workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors.


    In the Policy Statement, the EEOC reasoned that in such circumstances, the "message" is implicitly conveyed that the managers view women as "sexual playthings," thereby creating an atmosphere that is demeaning to women.


    Managers who engage in widespread sexual favoritism may also communicate a message that the way for women to get ahead in the workplace is by engaging in sexual conduct or that sexual solicitations are a prerequisite to their fair treatment. . . . This can form the basis of an implicit 'quid pro quo' harassment claim for female employees, as well as a hostile environment claim for both women and men who find this offensive.


    Although issued by the California state court, the effects of this decision may be far-reaching given the fact that it is based on the EEOC's interpretation of the prohibitions of federal anti-discrimination laws. Based on this decision, it is even more important for organizations to consider a policy against consensual affairs between employees and their supervisor or anyone else who is in a position to recommend the other for any sort of advancement. In addition, employers should attempt to separate, on a professional level, two employees that are involved in a romantic relationship.