Of Plaintiffs and Paramours: Sexual Favoritism
Claims
Aun L. Rue
Kutak Rock LLP
Wichita, Kansas
Alan. Rupe@KurakRock.com
Employers never encourage workplace
romances—at some point, they end
and the participants live unhappily
ever after. The ousted lover may file a
harassment suit. Hard feelings and
discomfort may require the company
to transfer—and re-train—one or
both employees. Some romances even
result in workplace violence. But until
recently, at least one thing was cer-
tain—office romances are not prohib-
ited by the employment
discrimination laws
‘Thanks to the California Supreme
Court, that once-sound convic
now calls for a qualifier. Decided in
July, Miller « Department of Corree-
tions, 36 Cal.4th 446, 30 Cal. pte 3d
797 (2005), allows a new cause of ac-
tion for sexual harassment plaintiffs in
California courts and may signal one
for federal court plaintiffs nationwide.
A hostile working environment now
exists when consensual sexual conduct
is pervasive enough to signal that the
way “to get ahead in the workplace is,
by engaging in sexual conduce with
their supervisors or the management.”
30 Cal.Rper.3d at 802. Miller fashions
a new category of gender discrimina-
tion plaintiff—the employee who is
passed over when the boss promotes a
paramour.
In Miller, plaintiffs produced evi-
dence that a prison warden concur-
rently engaged in sexual relationships
with three different subordinate em-
ployees for several years. When the
warden moved to a new prison facility,
he transferred the three women with
him. He granted unwarranted em-
ployment benefits to the women, in-
cluding the power to abuse and
retaliate violently against co-workers
who complained about the sexual rela-
tionships. Prison employees uniformly
acknowledged that job advancement
for women was based upon sexual fa-
vors and nor merit. Prison employees
endured the boasting by the favored
women about their sexual relation-
ships with the warden. Employees
also watched the warden publicly fon-
dling the women during work-related
social events.
‘The stirring plot, numerous r0-
mantic relationships, and sexually
suggestive atmosphere in Miller trans-
formed non-actionable consensual
sexual relationships into hostile work
environment sexual harassment.
Sexual favoritism within the California
prison facility was “sufficiently wide-
spread” to tell female employees that
management viewed them merely as
“sexual playthings.” No female em-
ployee doubted that promotions and
job benefits within the prison would
be distribuced based on sexual acts
and relationships. The warden
“communicate{d] a message that the
way for women to get ahead in the
workplace is by engaging in sexual
conduct.” 30 Cal. Rptr.3d at 812.
Miller dusts off the old sexual favor-
itism cause of action and brands it a
viable alternative for ewenty-first cen-
tury gender discrimination plaintiffs.
‘Sexual Favoritism as Implied
Quid-P .Quo Harassment
‘The Miller court never seriously con-
sidered an implied quid-pro-guo
claim—plaintffs succeeded on a
theory of hostile work environment
sex harassment. The C:
fornia Faie
Employment and Housing Act, like
‘Title VII of the Civil Rights Act of
1964, prohibits diseris
harassment “because of
ination and
sex.” Title
VII liability can result when an em-
ployer implicitly conditions the distri
bution of employment benefits upon
the employee's performance of sexual
favors, such as when the boss says,
“Lee's discuss your promotion at my
apartment tonight over a bottle of
wine.” See Ellert » University of Texas
at Dallas, 52 F3d 543, 545 (5th Cir
1995). Sexual favoritism arguably pre
sents an implied quid-pro-guo claim to
any passed-over employee: “IF / engage
in sexual behavior with my supervisor,
Twill be eligible for the benefits she
bestowed upon her paramour.”
“Twenty years ago, it appeared that
the D.C. Circuit adopted this reason-
ing in King ». Palmer, 78 F.2d 878
(D.C. Cir. 1985). In King, the court
reversed a judgment granted in favor
of a doctor who promoted a nurse
with whom he was having an affair.
King involved an isolated instance of
Fall 2005
The Job Descriptionfavoritism—an under-qualified par-
amour was promoted over a well-
qualified plaintiff. However, a careful
reading of King reveals that the court
did not technically decide whether a
single instance of favoritism consti-
tutes gender discrimination. Appar-
ently, King held only chat plaintiff's
evidence was sufficient, “the parties
[having] agree(d] that Ms. King’s alle-
gation, based as it is on [a] sexual rela-
tionship between [defendant] and [a
co-worker], presents a cognizable
cause of action under statutes prohib-
iting sex discrimination in employ-
ment.” 778 F2d at 880. But in
overturning the lower court, King as-
sumed the validity of a cause of action
nobody knew existed. King is the only
reported case where a Title VII claim
was based on an isolated instance of
sexual favoritism
Federal judges are careful readers.
‘When faced with sexual favoritism
claims, they distinguish King because
it never decided whether sexual favor-
itism constitutes gender discrimina-
tion. The Second, Seventh, Tenth, and.
Eleventh C
single instances of sexual favoritism do
not constitute sexual harassment be-
cause employees are nor treated differ-
ently because of gender. Favorit
toward sexual partners, although un-
fais, burdens all unfavored male and
female employees equal.
‘The Miller case in California does
uits have held hae
not address isolated instances of sexual
favoritism. Nor does it address quid-
pro-quo sexual harassment. But Miller
signals further and rapid expansion of
gender discrimination doctrines. As
recently as 2002, the Seventh Circuit
called sexual favoritism “not really a
sex discrimination problem... Had
there been other women in the sign
shop, they would have suffered in ex-
actly the same way [the male pla
iff] was allegedly suffering” from the
sexual favoritism. Schobert 1 Ilinois
Department of Transportation, 304
3d 725, 733 (7th Cir. 2002). Miller
may foreshadow a day when this dis-
tinction becomes unconvincing—
when there are sex discrimination
problems in isolated instances of fa-
voritism. Courts may soon find harass-
ment when plaintiff insists, “I would
be eligible for that promotion if I
were the boss's paramour.” Or when
plaintiff laments, “Because the boss is
not sexually interested in individuals
of my gender, 1 am nor eligible for cer-
‘ain promotions che paramour re-
ceived.” Miller brought these claims to
our side of the horizon,
Sexual Favoritism as Hostile
Environment Harassment
In Miller, a hostile work environment
resulted because sexual favoritism was
“sufficiently widespread” to suggest to
female employees that management
viewed chem as “sexual playthings.”
However, the California Supreme
Court did not construct Miller out of
whole cloth.
‘The EEOC’s Title VII Policy Guid-
ance, published in 1990, recognizes
the sexual favoritism claim that Miller
brought to life. The Guidance insists
that “isolated instances of favoritism
cowards a ‘paramour’ [ate] not prohib-
ited.” However, widespread sexual fa-
voritism can constitute hostile
environment harassment in circum
stances where “a message is implicitly
conveyed that the managers view
women as ‘sexual playthings,’ thereby
creating an atmosphere that is de-
meaning to women.” The Guidance
cites Broderick ». Ruder, 685 ESupp.
1269 (D.C.Cit. 1988), wherein an at-
tomey at the Securities and Exchange
‘Commission alleged that wo of her
supervisors engaged in sexual relations
with two secretaries. As a result of
their affairs, the secretaries received
promotions, cash awards, and other
job benefits. A thied supervisor pro-
moted a woman with whom he social-
ized extensively and to whom he was
noticeably attracted. The conduct of
these supervisors “created an atmo-
sphere of hostile work environment” of-
fensive to plaintiff and co-workers.
‘Miller, atleast in California, re-
solved any confusion over whether a
single instance of sexual favoritism was
distinguishable in practice from wide-
spread sexual favoritism. Although the
EEOC Guidelines treated the topics
separately, these G
before resulted in liability based on
widespread sexual favoritism. Miller
resurrected the widespread favoritism
claim, seemingly long lost since 1990.
jdelines had never
Conelusion
Relationships—even consensual
‘ones—berween supervisors and subor-
dinates raise many issues, including
bitter feelings when the relationship
ends and the perceptions of other em-
ployees that the paramour enjoys spe-
cial status during the relationship. As
the Seventh Circuit observed, “From a
practical standpoint, there is every
reason for an employer to discourage
this kind of intra-office romance, as it
is often bad for morale, but that is
different from saying it violates Title
VIL Schobert v Ilinois, supra, 304
F3d at 733. Some companies have
tried to prohibit altogether any con-
sensual relationships among employ-
26
The Job Description
Fall 2005Such a policy is hard to enforce
and may violate state laws prohibiting
an employer from imposing adverse
consequences on private behavior. The
right answer will depend on appli-
cable state laws, the culture of the
employer, and the nature of the
workforce.
Lawyers advising clients in light of
Miller must be mindful there is no
one-size-fits-all answer. However, they
should remember the three most ef-
fective methods for avoiding sexual
harassment liability: train, erain,
train, Every employer must have a
complaint mechanism that allows an
employee to bypass his or her imme-
diate supervisor—whether that means
reporting to the HR department or
another supervisor. Employers must
pay careful attention to the personal
relationships supervisors make in the
workplace. Policies should aim co
avoid the appearance of impropriety
in personnel-related decision making,
‘especially when romantic relationships
are involved.
Fall 2005
The Job Description