e-Bulletin: Can Workplace Relationships Constitute Harassment Against Non-involved Employees?

Two Plaintiffs were long time employees of the California Department of Corrections and were both transferred to the Valley State Prison for Women (VSPW). During the time periods relevant to the case, VSPW’s Warden was engaged in sexual relationships with several subordinates. Plaintiffs claimed that the Warden’s secretary liked to brag that “she had a direct line to the Warden” and received promotions for which she did not meet the minimum qualifications. Similarly, plaintiffs complained, among other things, that some of the involved parties were moving up the ranks too quickly given their education and experience; and these same employees were abusive and the environment around the office became increasingly hostile because of the Warden’s inability to control them.

Plaintiffs ultimately filed a claim under the Fair Employment and Housing Act (FEHA) alleging that the defendants discriminated against and harassed them on the basis of their sex in violation of FEHA and public policy, and that they suffered retaliation after they made their complaints to the defendants. In particular, plaintiffs alleged that defendants favored women who engaged in sexual relations with their supervisors, and because plaintiff did not do so, they were treated differently. Further, Plaintiffs alleged that they were forced to work in a hostile environment where women got ahead and were promoted if they performed sexual favors for employees of CDC.

The trial court granted summary judgment in favor of the defendants, concluding that the conduct in question did not support a claim of sexual harassment, and the Court of Appeal affirmed.

On appeal, the California Supreme Court relied on a policy statement of the Equal Employment Opportunity Commission to conclude that an employee may establish an actionable claim of sexual harassment under FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions. The Court concluded that the evidence proffered by the Plaintiffs, viewed in its entirety, established a prima facie case of sexual harassment under a hostile work environment theory. Specifically, the evidence created at least a triable issue of fact on the question of whether the Warden’s conduct constituted sexual favoritism widespread enough to constitute a hostile environment in which the “message was implicitly conveyed that the managers view women as ‘sexual playthings’” or that “the way for women to get ahead in the workplace is by engaging in sexual conduct” thereby “creating an atmosphere that is demeaning to women.” According to the Court, there was evidence of sufficiently severe or pervasive conduct that altered the conditions of the victims’ employment such that a jury reasonably could conclude that the conduct created a work environment that qualifies as hostile or abusive to employees because of their gender.

The Supreme Court’s decision in Miller v. Department of Corrections raises and reiterates important issues that employers need to consider when managing the workplace, particularly when office romance is an issue:

• Although isolated instances of sexual favoritism in the workplace do not violate state or federal anti-harassment and anti-discrimination laws, widespread sexual favoritism may create a hostile environment by sending the message that women are “sexual playthings” and that the way for women to “get ahead in the workplace is by engaging in sexual conduct.”
• If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female employees who do not welcome the conduct may be able to 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 sexual favors.
• Managers and supervisors who engage in widespread sexual favoritism may communicate a message that the way for women to advance in the organization is by engaging in sexual conduct, which could give rise to a quid pro quo harassment for female employees in addition to a hostile work environment claim for male and female employees.

TIPS FOR EMPLOYERS:

• Employers should review and update their anti-nepotism and sexual harassment policies and should consider implementing anti-fraternization policies governing relationships between supervisors and the employees they supervise.
• Employers should be sure to comply with the state-mandated sexual harassment training requirement for supervisory employees. The training must be completed by January 1, 2006.
  
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