The California Supreme Court has held unanimously that widespread sexual favoritism may create an actionable hostile work environment. The Court has expanded the scope of sexual harassment law in California, such that even absent coercive behavior directed at the plaintiff, an actionable hostile work environment can exist when sexual favoritism in the workplace is sufficiently widespread. Miller v. Department of Corrections et al., Cal. Sup. Ct. No. S114097 (July 18, 2005).

California law already provides broad protection against sexual harassment. However, in Miller the Court expanded the scope of protection under the Fair Employment and Housing Act ("FEHA") to include instances where the employee was not subject to coercive behavior or unwanted sexual advances. The California Supreme Court held that an employee can state an actionable claim for sexual harassment under the FEHA "by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment." The Court found such circumstances were present where the demeaning message is conveyed that female employees are viewed by management as 'sexual playthings' or that the way for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or management.

In Miller, the plaintiffs were former employees at the Valley State Prison who complained that the former warden was involved in sexual affairs with other female prison employees and showed favoritism towards those employees. The plaintiffs, however, had not been propositioned by the warden. The warden's affairs with other employees created an inference that promotions and benefits were the result of sexual favors, not merit. The Miller Court found this evidence of sexual favoritism sufficient to state a prima facie case of sexual harassment. Miller details widespread favoritism ensuing from the warden's affairs with no less than three women, including repeated promotion of the warden's 'playmates' over those more qualified, the favored women's boasts of their influence over the warden, and unchecked harassing behavior by the paramours against those who complained about favoritism.

The Miller decision does not change the threshold requirement for hostile work environment claims. Plaintiffs must still show that, in light of the totality of the circumstances, the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. Echoing a EEOC policy statement on sexual favoritism, the Court noted that an isolated instance of favoritism toward a paramour may be unfair, but is not discriminatory.

The Miller court further agreed that, in addition to sexual harassment, plaintiffs stated a claim of retaliation on violation of FEHA, where their complaints of favoritism were answered with a campaign of harassment.

WHAT SHOULD YOU DO?

In response to the Miller decision employers should:

  • Ensure that all complaints of sexual harassment or gender-based favoritism are promptly investigated.
  • Review existing sexual harassment policies to ensure that they are updated and in compliance with California and federal laws.
  • Review existing antinepotism policies to ensure sure those policies are properly enforced.
  • Consult with counsel in carefully addressing situations involving workplace relationships to ensure against any possible implications of favoritism or sexual harassment and to prevent any implications of preferential treatment.
  • Ensure immediate compliance with California's new sexual harassment training law (AB 1825), requiring all managers and supervisory employees of companies with 50 or more employees nationwide to undergo the two hour mandatory interactive training before the end of the year.

HOW CAN DORSEY HELP?

Dorsey's labor and employment attorneys are available to assist in reviewing any existing sexual harassment and antinepotism policies to ensure that they provide protection against claims similar to those set forth in Miller.

Additionally, Dorsey has developed a series of comprehensive sexual harassment training programs to assist employers in meeting the new requirements of California's sexual harassment training law (AB 1825). Dorsey offers three separate options to assist companies in meeting these new legal requirements:

  • On-Site Training for Supervisors: Training program for supervisors and managers, offered at your company site.
  • Training the Trainers: Training program for your trainers, including human resources professionals and in-house counsel, offered at your company site.
  • Two Hour Training Seminars at Dorsey: Training program for supervisors, managers, in-house counsel or human resources professionals offered at various California Dorsey offices.

These training programs can be tailored to meet the specific needs of your company as well as California's new sexual harassment training requirements, and include: two hours of interactive anti-harassment and discrimination training with our expert trainers; a package of training materials; a PowerPoint presentation complete with question and answer sessions; role play sessions; a quiz to test the participant's understanding of the issues; and a certification of completion of the course.

Please contact Karen Satterfield to register for the training or Mandana Massoumi for more information.