Romance in the Workplace - A Dangerous Proposition
2005-11-04
In a startling development, the California supreme court unanimously recognized sexual favoritism as a violation of its state law equivalent to Title VII. Miller et al. v. Dept. of Corrections et al., 36 Cal. 4th 446 (Cal. 2005) ("Miller"). In Miller, the female plaintiffs worked in various managerial capacities as subordinates to a chief deputy warden who then became warden of another facility, Lewis Kuykendall. While at two separate facilities, Kuykendall carried on affairs with three other women whom he promoted to various positions of power in each correctional facility.
When each of the plaintiffs made complaints both to Kuykendall himself as well as administratively, acts of retaliation were carried out against each female plaintiff, including, demotions, failures-to-promote, and, in one instance, a physical assault and battery by one of the paramours. Both plaintiffs, as a result of seven years of working under these circumstances, resigned their positions and filed administrative charges of discrimination. In a summary judgment proceeding, the Department of Corrections prevailed before the trial court and the court of appeals, arguing generally that sexual favoritism is not a violation of Title VII, and hence, the California Fair Employment and Housing Act ("FEHA").
The California supreme court recognized sexual favoritism as sexual harassment under FEHA under the following conditions:
...[W]e conclude that, although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual 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. ...
Miller at 451.
In this case, numerous employees came forward in a Department of Corrections' internal investigation and commented upon the brazen activities of the three female lovers, who made no pretense of their romance with Kuykendall, nor the favors he bestowed upon them in many of the promotions and transfers to higher paying positions that they received. Indeed, the California supreme court noted the pervasiveness of an attitude of having to provide sex as a means, in some employees' perception the only means, for advancement at the facilities managed by Kuykendall.
Even the Equal Employment Opportunity Commission's ("EEOC") policy statement on the issue of sexual favoritism supports the California supreme court's decision. See Policy Guidance on Employer Liability under Title VII for Sexual Favoritism (Jan. 21, 1990) No. N-915-048 in 2 EEOC Compliance Manual. The EEOC's policy statement echoes the holding set forth above "...widespread sexual favoritism may create a hostile work environment in violation of Title VII by sending the demeaning message that managers view female employees as 'sexual playthings' or that 'the way for women to get ahead in the workplace is by engaging in sexual conduct.'" Id. Moreover, because the paramours were abusive in their roles as supervisors over the two plaintiffs, the hostile work environment elements were fulfilled - - that is, the conduct was found to be sufficiently severe or pervasive to alter the conditions of the plaintiffs' employment and create an abusive working environment.
In the U. S. Court of Appeals for the Fifth Circuit, sexual favoritism is not considered a violation of Title VII. Recently, the court of appeals in Wilson v. Delta State Univ., 2005 U.S. App. LEXIS 16964 (5th Cir. August 12, 2005) ("Wilson") specifically affirmed that an alleged preferential treatment of a woman because she was having an affair with a male supervisor was not gender discrimination against the male plaintiff because "preferential treatment of a paramour, while obviously unfair, is not gender discrimination for the simple reason that such treatment discriminates not only against men, but also against all other women in the world except the one paramour." Wilson at *4.
What does this mean for Texas' employers? For those dealing with isolated incidents of sexual favoritism, there should be no violation of the Texas Commission on Human Rights Act or Title VII. However, when an environment is created where the favorite employee is in such a position as to create an abusive working environment, coupled with the perception that sexual favors are the only way to advance in the workplace, possible claims might survive summary judgment. Employers would do well not to allow relationships such as these to exist in the workplace. In addition to possible claims of sexual harassment, certainly other tort claims could be alleged by those rejected for promotions or demoted within the context of a tortious interference with business relationship action. Additionally, there are bound to be workplace confidence problems associated with any sort of favoritism, much less sexual favoritism. In response to just these non-legal concerns, many employers have implemented nepotism policies to protect against issues such as these. These policies go a long way in safeguarding an employer's legal and morale concerns in the workplace and should be considered by employers faced with these issues.