• California Supreme Court Finds That Consensual Relationship Between Co-workers May Create Hostile Work Environment For Other Employees.
  • July 25, 2005 | Authors: Douglas E. Dexter; Holly L. Sutton
  • Law Firm: Farella Braun + Martel LLP - San Francisco Office
  • The California Supreme Court has unanimously held that employees might suffer sexual harassment by virtue of their co-workers' consensual relationships, even if the plaintiffs have not themselves been sexually propositioned. In Miller v. Department of Corrections, 05 C.D.O.S. 6268 (July 18, 2005), the court reversed summary judgment for the employer which had been upheld by the Court of Appeal. The court held that a wide-spread understanding within a workforce that sexual relations with management might provide workplace advantages may create a sexually hostile environment in violation of the California Fair Employment and Housing Act. By allowing plaintiffs to bring claims based upon a consensual relationship between co-workers, which previously was held not to support a claim for hostile work environment harassment, the court substantially expands potential employer liability.

    In Miller, two plaintiff female prison guards allege that three co-workers were having sexual relations with the warden. The co-workers allegedly advised plaintiffs that their relations with the warden were resulting in favorable scheduling and promotions. Indeed, the warden had intervened to secure a promotion for at least one of these alleged love interests, against the recommendations of a review panel. The warden later favored an alleged love interest over one plaintiff, despite the latter's apparently superior qualifications. The warden was thrice observed fondling one of the co-workers at work-related events. When one plaintiff complained about the favoritism, she allegedly suffered retaliation.

    Plaintiffs sued the Department of Corrections, claiming that this apparent favoritism imposed upon them a sexually hostile work environment. The trial court had granted summary judgment for the Department of Corrections and the Court of Appeals had affirmed, finding that plaintiffs had not been aggrieved since they had not themselves been propositioned.

    In an opinion authored by Chief Justice George, reversing summary judgment, the California Supreme Court found that suggestions of favoritism based upon sex may become sufficiently pervasive to create a sexually hostile environment for otherwise unaffected co-workers. Citing a 1990 EEOC Policy Statement, the court held that "[i]f favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment . . . 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." The court explained, "whether or not [the warden] was motivated by personal preference or by discriminatory intent, a hostile work environment was shown to have been created by widespread favoritism."

    The court emphasized that it was not establishing the threshold for such liability but that plaintiffs had established enough to avoid summary judgment. The court explained, "Certainly, the presence of mere office gossip is insufficient to establish the existence of widespread sexual favoritism, but the evidence of such favoritism in the present case includes:" 1) admissions by the participants concerning the nature of the relationships; 2) boasting by the favored women; 3) eyewitness accounts of incidents of public fondling; and 4) repeated promotion despite lack of qualifications.

    The Miller decision suggests that employers will want to more closely examine the implications of consensual relations between managers and their subordinates. Many employers already prohibit or require disclosure of manager's workplace romances. Despite limits on employers' ability to regulate employees' off-duty conduct under California Labor Code ยง 96(k) and the California Constitutional privacy rights, at least one California Court of Appeals has approved such prohibitions. Compare Barbee v. Household Automotive Finance Corp., 113 Cal. App. 4th 525 (2003)(manager could not establish protectable privacy right to date subordinate) with Rullan-Miller v. International Business Machines, Inc., 162 Cal. App. 3d 241 (1984)(recognizing salesperson's privacy interest in romantic relationship with competitor's salesperson).

    At a minimum, the Miller decision mandates that employers:

    • adopt policies prohibiting favoritism, or perceived favoritism, based upon off-duty sexual or romantic relations;
    • train managers to avoid actual or perceived favoritism among employees; and
    • investigate any allegations of favoritism, just as they would any other sexual harassment complaint.