Office Paramours Create a New Twist in the Law
February, 2006
Q. Can an employee successfully allege that an office romance between a supervisor and co-worker creates a hostile work environment?
A. The California Supreme Court recently said yes. . . .
Q. But will other courts follow?
A. Read on….
Introduction
Fifty-eight percent of employees nationally acknowledged that they have been involved in an office relationship according to a 2005 survey taken by Vault, a career information service. Fourteen percent of those surveyed stated that they have dated a boss or a superior. Nineteen percent have been involved with a subordinate.
Recently, the California Supreme Court in Miller v. Department of Corrections was presented with an office romance of mega-soap opera proportions. Have you heard or read about the case? This article will give you complete discussion, analysis and practice tips. (See, “Practice Tips” and “Score Card” at the end of this article.)
Facts
Two female employees of the State’s Department of Corrections alleged that their superior, a warden, had engaged in consensual sexual relationships with three of his subordinate female employees. The deputy warden was seen on at least three occasions at work-related social gathering fondling one of his paramours and one bragged that she knew every scar on his body.
The warden’s three paramours received promotions and more favorable treatment. On one occasion, plaintiff, Miller, and others were on an interviewing panel considering candidates for a promotion. One of the candidates was a paramour of the warden. When the panel did not select his paramour, the plaintiff and others on the panel were informed that the warden wanted them to “make it happen.” Later, the plaintiff and one of the warden’s paramours competed for the same promotion. The paramour received the promotion, despite the plaintiff’s higher rank, superior education and greater experience. Within a year and half, that paramour was promoted to yet another position.
One of the warden’s paramours also allegedly had a “close relationship” with a female deputy warden who allegedly was a lesbian and with whom the plaintiff refused to have dinner. Thereafter, the paramour and the alleged lesbian deputy warden made Miller’s life miserable, over-rode her authority, interfered with her decisions and reduced her supervisory responsibilities. The plaintiff complained to the warden. Shortly thereafter, the warden’s paramour physically assaulted Miller and held her captive for two hours. When another plaintiff asked for the deputy warden’s assistance, she refused to intervene. Later the warden admitted that his relationship with the paramour was a problem. He said to the plaintiff “I should have chosen you,” which the plaintiff understood to mean for a sexual relationship.
Procedural History
The two female employees sued the Department of Corrections, alleging sex discrimination and retaliation under the California Fair Employment and Housing Act. Two levels of lower courts dismissed the complaint on the Department of Corrections’ motions for summary judgment. However, the California Supreme Court reversed the two lower courts’ decisions. The Supreme Court held that there was one triable issue of fact precluding summary judgment as to whether the warden’s favoritism to three other subordinate women employees constituted sexual harassment against the female employees who were not targeted for his sexual liaisons.
Analysis
The Court was presented with extreme facts, therefore its decision goes beyond any other reported decision across the country. Albeit, the Court did turn to a 1990 policy statement of the Equal Employment Opportunity Commission. The EEOC’s policy makes three key points: (1) isolated incidents of sexual favoritism do not violate federal statutes; (2) coerced relationships may create quid pro quo harassment, not only for the targeted individual but also other employees; and (3) widespread sexual favoritism may constitute sexual hostile work environment harassment. Borrowing from the EEOC’s language, the Supreme Court stated that “a demeaning message is conveyed to female employees that they are viewed by management as ‘sexual playthings’ or that the way . . . to get ahead . . . is by engaging in sexual conduct with their supervisors or the management.”
What Have Federal Courts Held?
Over ten years ago, a federal district court held that nude photos in the workplace, not directed at offending a particular female employee, sexualized the workplace to the detriment of all female employees. However, that case did not deal with sexual favoritism or the novel issues presented by the California decision.
Sexual Favoritism Rejected by Other Federal Courts
“Untargeted victim” theory has been specifically rejected by several of the federal courts of appeals. For example, in 1986 the Court of Appeals for the Second Circuit held that, under Title VII, the term “sex” in the context of prohibited activity only referred to the protected class delineated by gender. It did not refer to sexual activity regardless of gender. Therefore, when a male sued an employer because his supervisor favored his paramour at work, there was no federal anti-discrimination violation. Both female employees and male employees suffered the same disparate treatment. There the court held that preference for a promotion was based on the amorous relationship, not gender.
In 1995, the Fifth Circuit, faced with this issue, also rejected the application of Title VII. In 2002, the Seventh Circuit agreed, holding that “whether an employer grants employment perks to an employee because she is a protégée, an old friend, a close relative or a love interest, that special treatment is permissible as long as it is not based on an impermissible classification.” The Tenth and Eleventh Circuits have taken the position that a show of favoritism is not actionable because both male and female co-workers were treated less favorably than the paramour.
Other Courts Recognize Sexual Favoritism
In Miller, the California Supreme Court pointed to a 1988 federal district court decision in which the court concluded that sexual favoritism contributed to a hostile work environment. There, the plaintiff alleged that two of her supervisors had been giving employment benefits to secretaries with whom they had been conducting sexual affairs. Another supervisor favored one of the plaintiff’s co-workers because of his sexual attraction to her. Notably, the plaintiff also alleged that she personally was harassed sexually.
A Massachusetts state court has held that favoritism and reprisals resulting from a single consensual affair in a small office could violate the Massachusetts general law, even where the plaintiff employee was not the direct target of the harassment. Also, the New Jersey Supreme Court held, under its State anti-discrimination laws, that an untargeted victim can bring a sexual harassment claim. Although, notably, the New Jersey Court would require the element of coercion in such cases. In other words, the targeted employee must have submitted to the employer’s coercive sexual advances and the untargeted employee must allege that she was denied benefits because of the coerced harassment of the other employee.
Practice Tips
- First, isolated favoritism or even favoritism for one office paramour would not be protected even under the California decision. Two or more paramours involved with supervisors involved may be the threshold, but it is uncharted territory because “widespread sexual favoritism” used by the Court was not defined. Could two supervisors with one affair each or one supervisor with multiple affairs be enough? It is undecided at this time.
- Second, ask the employee whether more than one supervisor or employee is engaged in sexual favoritism. Even in non-California jurisdictions, this inquiry can be important. Today, some companies have adopted policies which include the EEOC’s policy. However, after this California Supreme Court decision, plaintiffs’ lawyers throughout the country may be more inclined to bring claims alleging “widespread sexual favoritism” scenarios.
- Third, “no dating” policies might mitigate claims of severe and pervasive “sexual favoritism.” Such policies are found in some company manuals. Sometimes specific signed acknowledgments are required of co-workers in romantic relationships, which state that the relationship is not coerced. However, they do little to protect against claims by untargeted employees who claim to be victims of the favoritism. “No dating” policies also have been criticized by some as interfering with personal and private relationships. Some argue that such policies harm employee moral.
- Fourth, where actual company practice defies policy, employers will find no comfort in reliance on written policies. Thus, if in practice, office romances are winked at and managerial heads tend to ignore them, the policy of course might not provide protection in certain circumstances. Where a policy exists, it should be enforced. Such policies should certainly preclude managers from using their influence on underlings.
- Fifth, watch out for potential retaliation claims. Managers with paramours may be subject to allegations of retaliation. This also, however, is an unresolved area.
UNTARGETED VICTIMS SCORE CARD:
STATES: Untargeted Victim Might Have A Claim.
•California
•Massachusetts
•New Jersey
FEDERAL CIRCUITS: No Untargeted Victim Claim.
SECOND CIRCUIT
•Connecticut
•New York
•Vermont
FIFTH CIRCUIT
•Louisiana
•Mississippi
•Texas
SEVENTH CIRCUIT
•Illinois
•Indiana
•Wisconsin
TENTH CIRCUIT
•Colorado
•Kansas
•New Mexico
•Oklahoma
•Utah
•Wyoming
ELEVENTH CIRCUIT
•Alabama
•Florida
•Georgia
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