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Can consensual workplace sex create a hostile environment?

By Joanna Grossman
FindLawexternal link columnist
Special to

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(FindLaw) -- When a married supervisor conducts longstanding, concurrent affairs with three female subordinates at work and grants them professional favors over more deserving candidates, does it constitute unlawful sexual harassment?

In Miller v. Department of Corrections, the California Supreme Court has held that it does, despite a longstanding reluctance by courts to recognize claims of so-called "sexual favoritism."

Plaintiffs' allegations

The case was brought by two former employees at the Valley State Prison for Women (VSPW) -- Edna Miller, a correctional officer, and Frances Mackey, a records manager who died while litigation was pending. Miller and Mackey alleged that they were subjected to discrimination and harassment as a result of the chief deputy prison warden's multiple workplace affairs and related conduct.

Although the case involved numerous allegations, the crux of the complaint is its allegation that the deputy warden, Lewis Kuykendall, openly carried on three affairs with female employees at the prison, all subordinate to him, and granted those women undeserved privileges and promotions because of his relationship with them. At the same time, the suit alleges, female employees who complained about these relationships were punished and retaliated against, for their objections.

Although the facts of the case are too numerous and complicated to recount here, a few notable examples will provide a sense of the ways in which, according to the plaintiffs' allegations, these sexual relationships pervaded the workplace and disadvantaged those not involved in them.

When Kuykendall was transferred from another facility to VSPW, the plaintiffs allege that he gradually had all three of his paramours transferred so they would once again be working for him. Once there, the paramours all allegedly benefited in tangible ways from their relationship with Kuykendall.

One paramour, for example, allegedly was granted a promotion over the objection of the committee appointed to make the decision because Kuykendall ordered them to "make it happen." A second paramour allegedly was permitted to report directly to Kuykendall in lieu of her immediate supervisor. A third was allegedly given a series of promotions over more qualified applicants, and, according to plaintiffs, remarked that Kuykendall had no choice but to give them to her lest she "take him down" by revealing "every scar on his body." The culture at the facility, the plaintiffs claim, was such that employees repeatedly questioned whether this was the kind of workplace in which they would have to "'F' my way to the top".

The sexual relationships allegedly affected the workplace in other undesirable ways as well. Kuykendall allegedly engaged in open displays of affection with at least one of the women at work, and the three women allegedly were sometimes heard to be squabbling over their competing affairs, in emotional scenes.

Complaints about the sexual relationships, the plaintiffs allege, were met with derision or worse. Allegedly, when plaintiff Miller confronted one of the paramours about the relationship and the harm it had caused other employees, the paramour physically assaulted Miller and held her captive in a closed office for two hours.

Then, when Miller complained to Kuykendall and threatened to file a harassment suit, he allegedly said there was nothing he could do to control the paramour because of his relationship with her, and told Miller he should have "chosen" her instead. The other plaintiff, Mackey, allegedly had her pay reduced when she complained about the sexual affairs.

The Title VII issue

First recognized as a potentially valid claim in the 1980s, sexual favoritism has proved an elusive cause of action for most plaintiffs. Courts have struggled with the question whether the prohibition against sex discrimination in Title VII -- the main federal antidiscrimination statute applying to the workplace -- is violated when, for example, a supervisor grants preferential employment treatment to a paramour based on their intimate relationship. Does this conduct render other employees victims of sex discrimination?

The struggle comes because Title VII does not apply to all conduct that is immoral, unethical, distasteful, or even demonstrably unfair; it applies only to discrimination. The New York Times' "Ethicist" would surely find it objectionable for a supervisor to hand out promotions only to subordinates he was sleeping with, at the expense of more deserving candidates. But under the law, more analysis is necessary: To prove a violation of Title VII, a plaintiff must show the act was discriminatory -- that it was taken because of sex, race, or some other protected characteristic.

When a male supervisor grants favors to his female girlfriend, all other employees -- both male and female -- are disadvantaged. But, arguably, none are disadvantaged by their gender per se. So it's not the case that such favoritism is always sex discrimination.

However, a variety of theories have developed under which a sexual relationship between two employees might constitute discrimination against other employees.

Discrimination circumstances

First, if the sexual relationship is coerced, it may constitute implicit "quid pro quo" harassment for other employees. "Quid pro quo" harassment occurs when a supervisor demands sexual favors in exchange for an employee's gaining job benefits or avoiding adverse employment actions, and it is a clear and serious violation of Title VII. An "implicit" quid pro quo might exist if employees understand, after learning of a coerced relationship between their supervisor and another subordinate, that sexual submission is expected of them as a condition of job advancement.

If the sexual relationship is consensual, then other theories might apply instead. Men, for example, might claim that they were discriminated against in that they were deprived of the opportunity to use sex to get ahead, since male supervisors are presumably, at least in most cases, only interested in sexual relationships with female subordinates. The men's lost opportunity could be considered discriminatory on the basis of sex. (The same argument could work, of course, for claims by female subordinates deprived of opportunities by female supervisors who have sexual relationships with men, and then favor them in the workplace.)

When a male supervisor favors a particular female employee with whom he has a sexual relationship, do other female employees face discrimination?

One might contend that they have been denied access to job benefits not because of their sex, but because the boss happened to choose a different woman to have an affair with. That, in our conventional understanding of Title VII, does not constitute unlawful discrimination. And a few courts have denied sexual favoritism claims on this reasoning.

But what if favoritism based on sexual favors is so widespread, in a given workplace, that women as a group are demeaned? That, according to a Policy Guidanceexternal link published by the Equal Employment Opportunity Commission in 1990, constitutes a form of illegal gender-based harassment.

The EEOC's Policy Guidance, approved during the period when now Justice Clarence Thomas served as EEOC Chairperson, states the agency's position on when sexual favoritism constitutes illegal harassment or discrimination. It recognizes the potential for an implicit quid pro quo claim, discussed above, but it also recognizes the possibility that widespread favoritism can create a hostile environment for both male and female employees.

Isolated incidences of sexual favoritism, while clearly inappropriate, are not considered unlawful by the EEOC. Employers should be careful when it comes to such conduct, though; city or state antidiscrimination provisions could still be interpreted to reach these instances. The safe thing, then, for employers to do is prohibit such favoritism, just as they often have policies banning nepotism.

The court's reasoning

The California Supreme Court followed the EEOC in determining that widespread sexual favoritism can create an actionable hostile work environment.

The case was brought under California's Fair Employment and Housing Act (FEHA). And California has always erred on the side of broader protection for victims when construing its anti-discrimination statutes than federal courts tend to grant when construing Title VII.

(For example, the California Supreme Court showed greater empathy for victims than federal law, as I have explained in a previous columnexternal link, when it granted employers a much more limited affirmative defense to liability for supervisory harassment than is available under Title VII.

California law also gives discrimination plaintiffs access to compensatory and punitive damages without caps. In contrast, Title VII caps combined damages at $300,000 for even the largest employer-defendants -- meaning that employees who are high-salaried, unable to find other work for a long time, and/or treated so horribly that punitive damages are appropriate, can be seriously undercompensated. )

Considering the validity of a FEHA sexual favoritism claim, the California Supreme Court held that "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 management."

Given the facts alleged -- many of them uncontested -- the court remanded the case for a jury trial to see whether the legal standard could be met.

A likely win

I suspect the plaintiffs will meet with success at trial, assuming that they can convince a jury of the truth of the allegations of their complaint. Rightfully so, given that if their allegations are proven, they would establish a rather extreme clash between Kuykendall's personal relationships at the workplace, and workplace conditions for those around him who were not engaged in such relationships.

As the California court noted, according to plaintiffs, "Kuykendall's sexual favoritism not only blocked the way to merit-based advancement for plaintiffs, but also caused them to be subjected to harassment at the hands of [his girlfriend], whose behavior Kuykendall refused or failed to control even after it escalated to physical assault."

Sexual favoritism, as a claim, is often met with skepticism because of fear that it might require employers to monitor, or even restrict, consensual office romances. But that is a misunderstanding.

Office romances are not, standing alone, problematic -- and certainly are not illegal, or discriminatory. Indeed, it would be a shame to prevent all such relationships, given the increasing time and importance of work in our daily lives. Sexual relationships, including those begun at work, can be a positive force in women's and men's lives. But such relationships should not go beyond providing personal fulfillment to the participants, to providing a free ticket to career success at the expense of others equally, or more, deserving. In an egalitarian workplace, sex is no way to get ahead; good work is.

Society's interest in preventing exploitation and abuse of subordinates provides an important counterweight to the value of allowing office romances to flourish. Fortunately, given the way both the EEOC's and California's standard is crafted, both interests can be served. Employers need not prohibit office romance. It is only an office romance (or, perhaps, two or three) combined with repeated and widespread instances of favoritism, to the detriment of other employees, that begins to near the threshold for sex discrimination liability.

Common-sense policies by employers designed to guard against abuses of power like those committed by Kuykendall ought to be par for the course -- and, as noted above, cautious employers will often have such policies or informal norms in place. As law professor Martha Chamallas has suggested, little sexual liberty is lost when an employer prohibits "amorous relationships in which one party has direct authority to affect the working . . . status of the other."

The dangers of permitting such obvious conflicts of interest to flourish are amply demonstrated by the Miller case. An environment like the one alleged to have existed at VSPW not only makes life miserable for women who work there, but also reinforces deeply entrenched stereotypes about women sleeping their way to the top.

When sexual favoritism is as pervasive and unfettered as it is alleged to have been at VSPW, no woman can get a fair evaluation based on her abilities and work-related talents. That is the essence of sex discrimination, and the Miller court was right to put a stop to it.

Joanna Grossman, a FindLawexternal link columnist, is a professor of law and associate dean for faculty development at Hofstra Law School in Hempstead, New York.

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