JULY 26, 2005
Dangerous Liaisons: Preference for Paramours Can Create
Hostile Environment for Other Employees
By Jeff Tanenbaum and Sheila Kiernan
Overview
In a highly anticipated and groundbreaking decision, the California Supreme Court
unanimously decided that an employee may have an actionable hostile environment sex
harassment claim based on a manager’s consensual sexual affairs with several other
subordinates.
In Miller v. Dep’t of Corrections, the California Supreme Court held that an “isolated instance of
favoritism on the part of a supervisor toward a female employee with whom the supervisor
is conducting a consensual sexual affair ordinarily would not constitute sexual harassment.”
However, when such “sexual favoritism in a workplace is sufficiently widespread it may
create an actionable hostile work environment for those not engaged in the affairs.” Under
such circumstances, the court found that favoritism toward paramours may convey the
demeaning message to employees that they are viewed by management as “sexual
playthings” or that “the way required for women to get ahead in the workplace is by
engaging in sexual conduct with their supervisors or the management.”
The Facts of the Case
Over a period of approximately seven years, a Department of Corrections warden engaged
in concurrent sexual affairs with three subordinate employees. The warden allegedly caused
his sexual partners to be transferred to join him at his new post and upon joining him, two
of them were promoted over the plaintiffs. One of the paramours, who enjoyed an
unprecedented pace of promotion bragged that she would receive another promotion
because if she was not awarded the promotion, she’d “take him down” because “she knew
every scar on his body.” Outraged employees, including plaintiffs, attributed the promotions
and advancement to the sexual affairs and began to ask whether they needed to sleep their
way to the top. In addition, the warden and his paramours were reportedly seen fondling
one another at several work-related social gatherings, and they played out jealous scenes
about his relationships with the other paramours in front of plaintiffs and other employees.
1 of 3
The warden also allegedly promised and granted unwarranted and unfair employment
benefits to women based on his affairs with them. One of the unfair employment benefits
granted to one of the employees was, according to the court, the power to abuse other
employees who complained about the affairs. And, when a plaintiff allegedly complained to
the warden about that abusive treatment, he responded that he was finished with that
particular woman and should have chosen the plaintiff—a comment the plaintiff interpreted
to mean that he should have chosen her for a sexual affair.
The court determined that there was sufficient evidence to establish triable issues of material
fact, and reversed the trial court’s granting of summary judgment and the Court of Appeals
affirmation of summary judgment. The underlying summary judgment had been based, in
part, on findings that plaintiffs were not treated any differently than male employees and
were not themselves subject to sexual advances. The court did not accept this as a defense
in this case. Instead, the court found that widespread sexual favoritism could not only block
the way to merit-based advancement for plaintiffs, but also cause them to be subject to
harassment.
What Should Employers Do Now?
Prudent employers should heed this decision as a warning. Miller makes clear that employers
need take appropriate steps to ensure a work environment free from hostility for all
employees, when employees and/or supervisors are engaged in consensual sexual
relationships.
Training to prohibit and prevent sex harassment is now mandatory for all supervisors in
California, but employers should consider providing such training to their entire workforce.
Employers should also review and update their policies—particularly sex harassment, antifraternization and anti-nepotism policies. While employers should not have to act as the
“dating police,” Miller makes clear that ignoring the impact of even consensual relationships
can sometimes result in a cognizable claim for sex harassment.
Anti-fraternization policies are one possible solution, but they can be problematic. Such
policies run counter to human nature and can be difficult to enforce. An alternative
solution, when an employer is aware of a consensual relationship at work, can be to require
the individuals involved to sign a consensual relationship agreement, (popularly known as a
“love contract”). Such agreements spell out the standards of behavior and professionalism
required of the individuals involved in the relationship. In addition, these agreements set
forth the standards for appropriate behavior with respect to others in the workplace—
including not showing favoritism to a paramour. Such love contracts are not appropriate in
all circumstances, but may be useful in some cases.
___________________
2 of 3
For more information on this issue or other employment law matters, please contact Jeff
Tanenbaum (at 415-984-8450 or [email protected]), Sheila Kiernan (at 415984-8257 or [email protected]) or your Nixon Peabody attorney.
The foregoing summary is provided by Nixon Peabody for education and informational
purposes only. It is not a full analysis of the matter summarized and is not intended and
should not be construed as legal advice. This publication may be considered advertising
under applicable laws.
If you are not currently on our mailing list and would like to receive future publications of
Employment Law Alert or if you would like to unsubscribe from this mailing list, please send
your contact information, including your name and e-mail address, to
[email protected] with the words “Employment Law Alert” in the subject line.
Prior publications of Employment Law Alert are available on our Web site at
http://www.nixonpeabody.com.
3 of 3