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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 Description favoritism—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 2005 Such 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