CALIFORNIA SUPREME COURT ISSUES SWEEPING RULING

AGAINST SEXUAL FAVORITISM IN WORKPLACE

In a unanimous decision, the California Supreme Court has ruled that sexual favoritism at work can make an employer liable for creating a hostile environment. This July 18th decision places new limits on romance in the workplace, and also expands the risk for employers of facing sexual harassment lawsuits.

The State Supreme Court found that a supervisor's decision to promote women whom he was sleeping with ahead of more qualified candidates sent a demeaning message to all female employees and, the Court decided that this conduct could constitute harassment.

In a broad opinion, Chief Justice Ronald George said, "When 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.'" The way for women to get ahead, Chief Justice George continued, cannot be a requirement to engage in sexual conduct with their supervisors.

The case involved two former employees at the Valley State Prison for Women who brought claims under the California Fair Employment and Housing Act. Edna Miller and Frances Mackey alleged that the warden, Lewis Kuykendall, accorded more favorable treatment to several female employees with whom he was having sexual affairs.

One of the warden's lovers bragged to coworkers about her power over Kuykendall, and stated her intention to use this power to extract benefits from him. She added that she would "take the warden down" if she did not receive a promotion. In addition, the three women  having affairs with Keykendall sometimes squabbled over him in emotional scenes witnessed by other coworkers. When Miller and Mackey complained, they allegedly faced retaliation.

In siding with the employees, the Court cited an EEOC policy statement covering the issue of sexual favoritism. In this statement, the EEOC discussed favoritism that is more than isolated, and is based upon consensual affairs. The commission said, "If the favoritism is widespread, both male and female colleagues who do not welcome this conduct can establish a claim under Title VII regardless of whether any objectionable conduct is directed at them." Relaying on this guidance, the Court finds the plaintiffs' evidence establishes that the way for women to advance at Valley State Prison was based upon sexual favors, not merit.

The California High Court makes clear, however, that "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."