Employment Update
September 2005


The recent unanimous decision of the California Supreme Court in Miller v. Department of Corrections et al. (2005) DJDAR 8561, expands the scope of sexual harassment liability for employers. In this case, the court did not require actual harassment targeting the plaintiffs, but ruled that when sexual favoritism is sufficiently widespread in a workplace it may create a hostile work environment for the unfavored employees.

The two plaintiffs in Miller were employed by the Department of Corrections. Their superior, the chief deputy warden, had sexual affairs with at least three employees over a period of four years. The plaintiffs overheard emotional arguments between the lovers at work. Employees witnessed the warden fondling female employees at work-related social gatherings. The warden also made unwelcome groping gestures toward other female employees at a social gathering. There was widespread belief within the department that females received favorable treatment if they engaged in sexual relations with the warden. When the plaintiffs complained about the inappropriateness of their supervisor's sexual affairs, they were ostracized, publicly humiliated and denied promotion.

The plaintiffs were never propositioned by the warden, nor were they inappropriately touched by him. However, the plaintiffs received unfavorable treatment from their supervisor, Brown, one of the women who was having an affair with the warden. One plaintiff alleged that although she was more qualified, Brown received a promotion they were competing for, due to her affair with the warden. The plaintiffs also alleged that they were retaliated against when they complained of the improper sexual relationship between the warden and other co-workers, and when they participated in an Internal Affairs investigation of his conduct.

The court concluded that an isolated instance of favoritism by a supervisor towards a female employee who is having a consensual affair would most likely not constitute sexual harassment. However, if such sexual favoritism is widespread it may create a hostile work environment because it conveys the demeaning message that female employees are viewed by management as "sexual playthings" or that the way to get ahead in the workplace is to engage in sexual conduct with their supervisors or management.

Impact on Employers

It is not uncommon for romances to develop in the workplace. Most employers and employees think that a consensual affair with a co-worker or even a supervisor cannot lead to a sexual harassment claim. The Miller case emphasizes the flaws in this assumption. Even before Miller, when an affair ended, but one employee still romantically pursued the other --nonconsensual sexual conduct could lead to claims of sexual harassment. Now, a co-worker who is negatively impacted by the fall out from a consensual affair between two other employees can claim that the affair created a hostile work environment for her. Under California law, the employer is strictly liable for (this means automatically responsible for) sexual harassment by a supervisor. Although the Miller court did not discuss the strict liability standard with regard to this type of hostile work environment claim, it is clear that employers need to be vigilant in their efforts to maintain a harassment-free work environment.

Train All Employees

Training to increase awareness is the best way to prevent sexual harassment in the workplace. Employees, particularly supervisors, must be able to recognize the subtle (and not so subtle) conduct that can constitute harassment, and understand the potentially serious consequences of their actions. Harassment not only impacts the recipient, but also the harassing employee, who may be terminated and face personal liability for his or her actions.

Both employees and supervisors should receive sexual harassment training. California Government Code 12940(k) requires employers to take all reasonable steps to prevent sexual harassment. Reasonable steps clearly include implementing an effective sexual harassment policy and offering training to all employees. Additionally, Government Code 12950.1 requires that employers with 50 or more employees provide two hours of sexual harassment training to all supervisors every two years. All supervisors currently employed must receive this training by January 1, 2006.

Employers cannot prohibit consensual affairs and romance in the workplace. However, if properly drafted, non-fraternization or anti-nepotism policies which discourage romantic relationships among coworkers, particularly between supervisors and subordinates, can be implemented. Legal counsel should be consulted to ensure such policies are properly worded to avoid any potential claims of violation of privacy. Training, maintaining an effective sexual harassment policy, and requiring immediate investigation and response to any harassment complaint are essential tools for employers to prevent sexual harassment from occurring in the workplace.

This update is only a summary. The Law Offices of Singler, Napell & Dillon, LLP can help you understand the full impact this law may have on your business. Sandra G. Wickland is a senior associate with the law firm whose practice focus is employment law. She assists clients in drafting and implementing employment policies, as well as representing them in employment-related litigation. Ms. Wickland conducts sexual harassment training sessions to help employers comply with Government Code 12950.1. Please call her if you have any questions, or to schedule a training for your employees. You may contact Sandra at (707) 823-8719 or SGW@singler-law.com.

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