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AUGUST 2005
CALIFORNIA SUPREME COURT FINDS CONSENSUAL RELATIONSHIPS CAN LEAD TO EMPLOYER LIABILITY
The California Supreme Court has expanded the scope of employer liability by finding that an employer
can be held liable for claims of "hostile work environment" sexual harassment when a supervisor grants
preferential treatment to employees with whom the supervisor had a consensual affair.
In Miller v. Department of Corrections, two employees accused a prison warden of having affairs with
at least three subordinate employees and providing preferential and favored treatment to his "paramours".
The complaining employees then asserted a complaint of retaliation. The lawsuit was dismissed by the
trial and appellate courts finding that the warden's alleged conduct may have been "unfair" but that it was
not discriminatory because the two women who asserted the complaint were not subjected to sexual
advances, were not personally treated in a sexually demeaning way, and were not denied raises or
promotions because of their sex/gender.
The Supreme Court disagreed with the prior rulings and found that liability could exist. The Court stated
that while isolated instances of favoritism on the part of a supervisor toward a female employee with
whom he is conducting a consensual sexual affair might not constitute sexual harassment. However,
when such favoritism is sufficiently widespread and pervasive it may create a claim of "hostile work
environment" for those other employees in the office.
If those not involved in the relationship are denied promotions, raises, and other benefits of employment
because they are not having an affair with the boss, they could assert a claim of hostile work environment
claiming that they have suffered adverse consequences by not having an affair. The Court felt that any
other finding would send a message to female employees that management perceives them as "sexual
playthings" or that the way for them to get ahead is to engage in sexual conduct with their supervisors or
management.
Also, it is important to remember the potential for liability from the parties in the relationship. For
example, once the "voluntary" relationship terminates it would be easy for the subordinate employee in
the relationship to claim that the relationship was not "voluntary" but was a forced relationship - i.e., quid
pro quo sexual harassment if the subordinate employee feels that their employment was conditioned on
continuing the relationship; or a hostile environment claim based on sexual comments and actions in the
workplace.
What should you do:
Institute a Non-Fraternization policy: Ban all personal relationships between
supervisors and subordinates on the basis that such relationships can lead to complaints
of favoritism, conflicts of interest and potential claims of workplace harassment.
However, it is likely that such policies will be ignored because an employer cannot prevent
employees from having personal relationships outside the workplace, due to claims of
privacy and various other labor code provisions preventing an employer from regulating
off duty conduct. Yet the existence of such a policy does provide an employer with
options once a workplace relationship is determined to exist.
Monitor Workplace Relationships (Carefully): Employers should make an effort to
ensure that personal relationships are in fact "consensual" and do not interfere with the
workplace and do not create a hostile work environment.
This can be done by having a discussion with each person involved in the personal
relationship to confirm that the relationship is in fact voluntary and remind the parties
involved of "appropriate workplace conduct" (no displays of affection, no displays of
personal anger).
Provide each party with a copy of the company’s policy against harassment and
discrimination and remind them that if the relationship is not voluntary it is their
obligation to report it NOW.
Adopt a "conflict of interest" policy: This would make it clear that employees who find
themselves in a personal relationship will not be allowed to continue their employment
relationship as supervisor and subordinate due to the inherent conflict of interest (reviews, raises,
bonuses, etc.) .
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SB 8-2005 Paramour Harass |
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This information is intended to provide guidance in the area of employment law and is provided as a service of the Firm. While every effort
has been made to ensure the accuracy of the information contained in this bulletin, it is not intended to serve as "legal advice". If additional
information or assistance is needed on any of the topics contained in this informational package or any other matter, please feel free to
contact Cynthia Elkins for further information. All rights reserved. ©2005.
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