United States: California Supreme Court Addresses "Sexual Favoritism" in the Workplace
Originally published August 3, 2005

The California Supreme Court recently ruled that an employee may establish a prima facie case of sexual harassment under the California Fair Employment and Housing Act (FEHA) by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter her or his working conditions and create a hostile work environment. Miller v. Dep’t of Corrections, 30 Cal. Rptr. 3d 797 (Cal. July 18, 2005).

In Miller, plaintiffs claimed that the warden of the prison in which they worked afforded unwarranted favorable treatment to numerous female subordinates with whom he was having sexual affairs, and that such conduct created a hostile work environment for plaintiffs. The warden’s sexual favoritism was broadly known and resented in the workplace. Not only did his affairs interfere with merit-based advancement, but they also caused plaintiffs to be subjected to harassment by one of the warden's girlfriends, whose behavior the warden failed to control even after it escalated to physical assault. Plaintiffs’ repeated complaints resulted in a departmental internal investigation which allegedly increased the abuse and humiliation experienced by plaintiffs. They also claimed demotion, the withdrawal of accommodations for a physical disability, and further hostility, which eventually led to their resignation.

The trial court granted summary judgment in favor of defendants, stating that plaintiffs had not made an adequate showing that the alleged harassment was sufficiently pervasive, since they were not sexually propositioned nor were the affairs nonconsensual. After the Court of Appeal affirmed, the Supreme Court reversed, finding that the evidence presented at the summary judgment proceedings was sufficient to establish a prima facie case of sexual harassment.

Past California decisions have established that the prohibition against sexual harassment includes a wide range of protections, including protection from a work environment that is hostile or abusive on the basis of sex. Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 608 (1989); Accardi v. Superior Court, 17 Cal. App. 4th 341, 348 (1993). Similarly, it is settled that a hostile work environment can be created even if the plaintiff was never herself subjected to sexual advances Mogilefsky v. Superior Court, 20 Cal. App. 4th 1409, 1414-15 (1993). Prior to Miller, however, California courts had not addressed the parameters of hostile work environment claims premised on widespread sexual favoritism. Isolated sexual favoritism is generally viewed as not actionable, since its negative repercussions affect disfavored men and women alike. But Miller concluded, following federal case law and EEOC policy statements, that "when sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female 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."

Miller underscores the importance of proactive employer management of workplace romances that may have an actual or perceived negative impact on co-workers, and responsiveness to complaints or concerns. Employers should:

• Review policies and practices with respect to workplace romance.

• Promptly investigate reports of employee concerns about sexual favoritism, whether raised through official or unofficial channels, and take corrective action where warranted.

• Ensure that workplace sexual harassment training programs include discussion of this issue. Managers and human resources professionals should understand that a hostile work environment may be created with pervasive sexual favoritism. Employers should work with human resource personnel to revise or institute policies on how employee sexual favoritism complaints will be reported, investigated and resolved. We suggest that appropriate changes be made in employee manuals, and that employees be informed of the changes in the employer’s sexual harassment policies. Employees should be reminded of their right to a harassment-free environment.

• Ensure that complaints of sexual favoritism are handled with confidentiality and sensitivity. In Miller, the lack of confidentiality in the internal investigation caused the plaintiffs to claim that they had been submitted to further abuse and humiliation at the hands of fellow employees. Employee confidence in the confidentiality of their reports will prevent such confrontations, and encourage candid disclosures of sexual favoritism.

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