A recent California Supreme Court decision expanded the realm of conduct that may create an unlawful hostile work environment to include consensual sexual affairs between supervisors and employees. The Court held that such an environment may be created when supervisor-employee affairs result in widespread sexual favoritism that demeans women and implies that women exchange sexual favors for career advancement. Where such an environment exists, employees not engaged in the affair, but subject to the demeaning environment, may sue the employer for sexual harassment. The decision also emphasized that complaints of conduct an employee honestly believes to be unlawful are protected under anti-retaliation laws, even if the conduct at issue is actually legitimate.
What employers need to know
Employers should update their employment policies to include both firm anti-harassment policies and prohibitions against supervisor-subordinate relationships. Indeed, anti-fraternization policies that prohibit supervisors from dating employees are not only a good idea (and one approved by the courts), but may also be a required element of an employer's duty to take all reasonable steps to prevent and correct sexual harassment.
Employers must treat employee complaints seriously to avoid creating potential "retaliation" liability β even when the complaint may not technically concern illegal conduct. Complaints should be investigated, and remedial steps should be taken, as promptly and as confidentially as possible. Above all, employers should take all reasonable steps to ensure the complaining party does not suffer any adverse consequences as a result of the complaint.
Recent decision overview
In Miller v. Department of Corrections, Plaintiffs Edna Miller and Frances Mackey were employed with the Department of Corrections, at the Valley State Prison for Women (VSPW) beginning in the mid-1990's. The warden at VSPW engaged in consensual affairs with several of his subordinates, but not with the plaintiffs. However, plaintiffs were passed over for advancement and other opportunities β which were instead offered to the warden's paramours. Plaintiffs also were subjected to retaliatory treatment by the warden's paramours when plaintiffs complained about the affairs and apparent favoritism. The affairs were well-known throughout the facility and many employees concluded gaining employment benefits was predicated on performing sexual favors for the warden.
The Department conducted an internal investigation in 1998 and found that the warden's affairs were unethical and created a hostile work environment. Despite being assured their statements would be kept confidential, both Miller and Mackey suffered retaliation by the warden and his paramours for their cooperation with the investigation. Ultimately, both women resigned after suffering from stress and associated health problems. Miller and Mackey subsequently filed claims of sexual harassment and retaliation.
Expanding the concept of harassment - protection from retaliation
Following the established framework for analyzing claims of hostile work environment sexual harassment, the Court held that an employee may establish a claim under FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter her working conditions and create a hostile work environment. A plaintiff need not be sexually propositioned herself to state a claim; rather, a hostile work environment may be established where the atmosphere as a whole is demeaning towards women. The Court explained that prohibited conduct consisted of widespread sexual favoritism conveying a demeaning message to the workforce that management viewed female employees as "sexual playthings." Thus, while an isolated instance of preferential treatment of a sexual partner or mere office gossip about an affair would not create widespread sexual favoritism, an employer can face liability for more prevalent sexualizing of the workplace through consensual relationships. The Miller Court also made clear that any employee legitimately offended by such an environment could sue, regardless of the employee's gender.
The Court also emphasized the broad protections of FEHA's anti-retaliation provision. As long as an employee reasonably and in good faith believes that the conduct of which she complains is prohibited by FEHA, she cannot be penalized for making such a complaint. This is true even if the conduct is, in fact, not prohibited.
For more information about this new development, please contact your Bullivant employment attorney.