Volume 4, Issue 9
July 29, 2005
Many people meet future spouses or significant others in the workplace, occasionally leading to charges of favoritism. In a ruling that may well be echoed in the future by other courts, the California Supreme Court has ruled that a sexual harassment claim may be based upon an office romance that results in favoritism in the paramour's working conditions in an atmosphere where employees are given the message that women are "sexual playthings" and thus an atmosphere demeaning to women. Miller v. Department of Corrections, No. S114097, 2005 WL 166190 (Calif. July 18, 2005).
The case arose out of one prison facility where the chief deputy warden, a male, was alleged to have engaged in affairs with three female employees. Employees reported considerable evidence of the affairs in the workplace and at employer-sanctioned social events, including as examples fondling, considerable discussion of the affairs by the women, arguments at work between the chief deputy warden and one woman about his affair with one of the others, and discussion by other employees of the affairs. One of the paramours received promotions - one over one of the plaintiffs - with the chief deputy warden sitting on the promotion board. One plaintiff was physically assaulted by one of the paramours. Both plaintiffs contended that this conduct created a hostile work environment, but the trial court and the California Court of Appeals dismissed the lawsuit before trial, ruling that grants of favorable job opportunities to women with whom the supervisor is having an affair do not, without more, create a hostile work environment.
Disagreeing with this ruling, and allowing plaintiffs a trial, the California Supreme Court relied upon its interpretation of federal law and a policy guidance issued by the Equal Employment Opportunity Commission, as well as California law, to find sexual harassment because there were not only widespread manifestations of the sexual relationships in the workplace but detrimental working conditions created for other female employees such as the plaintiffs sending a message that these sexual relationships were the way to succeed. This decision also makes clear that, in these circumstances, men as well as women will be able to sue.
Although this is a classic case of "bad facts make bad law," the Miller case does exactly what many would predict. With allegations of considerable openness both of the multiple relationships as well as the adverse effects upon the plaintiffs, the allegations in this case were far more severe than those in most cases alleging discrimination in favor of a supervisor's paramour and no doubt leading the California court to afford the plaintiffs an opportunity to prove their case at trial. In one prior major case in this area arising out of Nevada, Candelore v. Clark County Sanitation District, 975 F.2d 588 (9th Cir. 1990), the court held that a rumored affair did not create a hostile work environment because the plaintiff "failed to identify employment benefits or opportunities that was entitled to but did not receive. . ." because of that affair. One judge, while concurring with the result, made certain that employers would not interpret the Candelore case to mean that such a claim could never exist in the Ninth Circuit by noting that if the plaintiff in Candelore produced "cognizable evidence that a co-worker received benefits that [she] did not because the coworker had an affair with a supervisor" the court would have to consider this matter. Clearly, the California court found such evidence to exist. It is likely that a federal court would, in an appropriate case, hold the same as did the California court in Miller.
How does a company avoid the risk of incurring sexual harassment liability where office relationships are bound to arise? First, train managers and supervisors on the legal risks of "power-differentiated" office romances - those where a supervisor or manager is involved in a romantic or dating relationship with a person whose employment conditions he or she can influence. Second, consider implementing policies on anti-fraternization or anti-nepotism, being cognizant to avoid invasions of privacy by focusing upon relationships that truly create risk.
Second, be alert to whether such romances exist, which may include following up on rumors in appropriate situations. If such a relationship exists, ensure that the supervisor is not involved in decision-making that may pose the risk of favoring the paramour over co-workers, or at least that other managers are involved to diminish the risk of favoritism. Address any outward expressions by the supervisor and paramour in the workplace or at company-sponsored social events that may have the effect of bringing the relationship into the workplace and sending an inappropriate message to the paramour's co-workers. While doing so, be cautious to act confidentially and avoid unnecessary invasions of privacy.
Third, if there are complaints of favoritism, address those as you would any other harassment situation - with a prompt investigation and appropriate remedial and disciplinary action.
The full decision of the California Supreme Court in Miller v. Department of Corrections, No. S114097, 2005 WL 1661190 (Calif. July 18, 2005) is available at:
Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.