Is Sexual Favoritism Against the Law? Maybe.

One of the reasons that so many people caution against workplace romances is the issue of sexual favoritism. What happens when the boss starts making decisions at work based upon who he or she is involved with at home? Not only can it be very messy when the relationship is over, but it can also be very messy while the relationship is in progress, especially if the person who is involved with the boss is perceived to be getting special treatment. However, unless you were the person in the relationship, and it subsequently went sour, causing you to be treated badly, there wasn’t much that could be done legally. Now, the California Supreme Court has recognized that those not involved in the relationship may have some legal rights, but exactly how far this decision really goes remains to be seen.

The decision reads like a soap opera, and one commentator takes it even further, to give the parties soap opera-like names:

The story opens in a women’s prison (isn’t this great already?) where our young heroine, Amanda, has taken a job. She overhears the deputy warden, Ryan, arguing with an associate warden, Olivia, about his sexual affair with his secretary, Nicole. The intensity of the argument is fueled by the fact that Ryan is conducting a sexual affair with Olivia, too. Olivia and Nicole are aware of each other’s relationship with Ryan, and have engaged in heated discussions about this, but it is not clear whether either of them know that he is also having an affair with Celeste, another employee at the prison. Amanda complains to Ryan’s boss, Marlena, about the situation and Marlena says that she has already taken care of it. Presumably as part of Marlena’s solution, Ryan is promoted to warden and transferred to another women’s prison. And wouldn’t you know it; Amanda gets transferred there, too. Ryan, using his new influence as a warden, manages to override an interview board’s recommendation to get Nicole, who is now some sort of counselor, transferred there as well. Exactly how Olivia ended up being transferred to the same prison isn’t clear, but there she is, too, along with, you guessed it, Celeste, who bragged about using her influence over Ryan to arrange her relocation. (You can see why the soap opera people would reject this; it’s simply beyond belief.) Ryan’s secretary at the prison, Brooke, is fired after she makes public his affair with Celeste. Meanwhile, Amanda and Celeste are competing for the same promotion. Celeste informs Amanda that Ryan would have to give the job to her (Celeste) or else she would “take him down” with her knowledge of “every scar on his body.”‘ Celeste indeed gets the promotion despite Amanda’s superior qualifications. Some months later, Celeste gets yet another promotion and becomes Amanda’s boss. Meanwhile, Ryan and Nicole are seen fondling each other at “work-related social gatherings,” and Ryan is found in Nicole’s car when she is arrested on suspicion of driving under the influence. Olivia, Nicole and Celeste continue their emotional and public squabbling over Ryan, and Amanda complains about the work environment to the aptly named internal affairs office. Meanwhile, a new chief deputy warden, Erica, has arrived at the prison and proceeds to make Amanda’s life miserable. Eventually, she attacks Amanda and holds her captive for several hours. The reason for Erica’s hostility isn’t clear, but Amanda had declined her repeated dinner invitations and there were rumors of an affair between Erica and Celeste. Amanda files an official complaint with internal affairs. She is told it will be kept confidential, but someone blabs to Celeste, who immediately begins harassing Amanda – following her home at one point – about her statements to the investigator. Work becomes so nightmarish that Amanda eventually resigns and files a lawsuit seeking damages. Amanda’s lawsuit was eventually joined with that of another former employee who also claimed harassment and humiliation at the prison.

Kudos to James McCusker, who had the patience to sort this all out in a story for HeraldNet — it definitely makes for more interesting reading than the court opinion, Miller v. Department of Corrections, issued on July 18. Edna Miller, known as Amanda above, and one of her coworkers, Frances Mackey (who passed away in 2003), brought their lawsuit after being forced to resign, when she couldn’t endure Louis Kuykendall, the warden, and the events described above any longer.

In lawsuits like this, the individuals who bring them are often portrayed as jealous and bitter, because they aren’t the ones in the relationships, or alternatively, as meddling busybodies trying to regulate the private lives of their fellow employees. However, in a situation as convoluted as this, it’s clear that anyone who wasn’t part of the love quadrangle (parallelogram?) would find the drama difficult to stomach on a daily basis. You have to wonder how any work was getting done, and how the prisoners all stayed confined, with the top brass spending so much time on their romantic entanglements. It’s almost surprising that one of the three women involved with Kuykendall didn’t end up as an inmate in the prison, although a jury might be hard pressed to convict someone who caused Kuykendall harm, given the utter boorishness of his behavior.

It’s been said that “bad facts make bad law,” but here’s a case where some of the worst facts one could imagine — how many workplaces have this much sexual drama? — may make some good law. Defense lawyers are rushing to call this a crazy California anomaly, knowing that it’s highly unlikely these kind of facts are likely to be repeated. See, for example, George’s Employment Blawg and Jottings of an Employer’s Lawyer. However, it’s high time the law recognized that someone who can’t sleep her way to the top (or isn’t doing so, even if she could) can be just as disadvantaged in the workplace (and face just as hostile an environment) as someone whose workplace relationship is over. Or, as Phil Horowitz of the California Employment Lawyers Association (CELA) puts it, employees can no longer be ”treated as second-class citizens because they’re not putting out.” (See New York Times article.)

This hardly means that everyone who sees that their boss is involved with someone at work is now going to be running to court — nor should they be, unless their work conditions have been adversely affected by the relationship. The California court’s decision is based upon a dusted-off Equal Employment Opportunity Commission guidance (from 1990, when now-Supreme Court Justice Clarence Thomas was the EEOC Chairperson) which states,

If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors. In these circumstances, a message is implicitly conveyed that the managers view women as ‘sexual playthings,’ thereby creating an atmosphere that is demeaning to women. Both men and women who find this offensive can establish a violation if the conduct is ‘sufficiently severe or pervasive “to alter the conditions of [their] employment and create an abusive working environment.”

(See EEOC Policy Guidance.) This is clearly not every workplace atmosphere where a relationship is involved, but will include the most seriously counterproductive ones that every employer should have an interest in reining in.

This also doesn’t mean that employers have to ban all workplace relationships — after all, where else are you likely to meet someone these days? As Joanna Grossman sagely notes,

Indeed, it would be a shame to prevent all such relationships, given the increasing time and importance of work in our daily lives. Sexual relationships, including those begun at work, can be a positive force in women’s and men’s lives. But such relationships should not go beyond providing personal fulfillment to the participants, to providing a free ticket to career success at the expense of others equally, or more, deserving. In an egalitarian workplace, sex is no way to get ahead; good work is.

(See FindLaw article.) What it does mean is that if a supervisor is involved with someone at work, both parties in the relationship need to act professionally. If supervisors can’t continue to act objectively and impartially between their love interests and the others they supervise, then they have no business remaining in that position. If workers involved in relationships with their superiors use that relationship to better their work situation, making their coworkers miserable in the process, then they should expect the employer to step in.

Few workplaces will be as dysfunctional as the womens’ prisons in Chowchilla were. However, it’s much more common that a workplace romance alters the balance of power between the employees in the office. Whether other courts pay attention to this California ruling remains to be seen, but you can bet that some employers are now paying attention. And that’s where the change is likely to be a good one, even if few plaintiffs will prevail in the future under this standard.

More Information:

Workplace Fairness:
your rights: sexual harassment
practical information: sexual harassment (NEW!)

Joanna Grossman: When Can Consensual Sex Create a Hostile Workplace Environment?

Court rules on sexual office affairs
(quoting Phil Horowitz, president of NELA‘s California affiliate, the California Employment Lawyers Association, who filed an amicus brief in the case.)

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.