WIDESPREAD SEXUAL FAVORITISM CAN CREATE SEXUAL HARASSMENT CLAIM

On July 18, 2005, in Miller v. Department of Corrections, the California Supreme Court ruled that widespread sexual favoritism in the workplace may create a hostile work environment for non-favored employees and form the basis of a valid sexual harassment claim under California's Fair Employment and Housing Act ("FEHA").

In the Miller case, Plaintiffs' supervisor had sexual relationships with at least three subordinate employees who received preferential treatment as a result. The workplace relationships were well known, and the paramours even bragged about them. The Plaintiffs themselves, however, did not experience sexual conduct or innuendo. They complained to upper management about the sexual favoritism and voiced their belief that this was the reason they had not been promoted. Plaintiffs ultimately resigned, finding the working conditions intolerable.

Plaintiffs then filed suit alleging that the sexual favoritism towards female employees constituted sexual harassment in violation of the FEHA. Based on existing precedent, the trial court dismissed Plaintiffs' case, concluding that Plaintiffs could not establish a sexual harassment claim because they could not show that they were personally subjected to sexual advances or treated any differently than male employees. The court of appeal agreed.

In a unanimous decision, the California Supreme Court reversed the court of appeal stating:

"[A]lthough an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual affair ordinarily would not constitute sexual harassment, when such 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."

Accordingly, California employers are on notice that actionable sexual conduct does not necessarily need to be directed toward the complaining employee to establish a claim. If the complaining employee shows that a supervisor's sexual favoritism was so widespread that it created a hostile work environment, the employee may state a claim under the FEHA.

In light of Miller, employers should consider appropriate revisions to their existing policies against harassment and also incorporate the Miller teaching into the sexual harassment training required by the December 31, 2005, deadline under A.B. 1825. In addition, employers must be wary of adopting "no dating" policies, as these may run afoul of privacy and other employment regulations.