California Supreme Court Concludes Widespread Sexual Favoritism May Create a Hostile Work Environment
The California Supreme Court unanimously held that sufficiently widespread sexual favoritism can convey a demeaning message to female employees that they are viewed by management as "sexual playthings," creating an actionable hostile work environment under California's Fair Employment and Housing Act ("FEHA"). Miller v. Department of Corrections, No. S114097 (July 18, 2005). The decision reversed the 3rd District Court of Appeal's unanimous 2003 panel decision that upheld a Sacramento Superior Court's grant of summary judgment.
The case involved lurid allegations against state prison warden Lewis Kuykendall, who, according to Plaintiffs Edna Miller and Frances Mackey, unfairly promoted three women with whom he was having sexual affairs: associate warden Debbie Patrick, Kuykendall's secretary Kathy Bibb, and employee Cagie Brown. In May 1995, Miller served on an interview committee that evaluated Bibb's application for a promotion to the position of correctional counselor. When the interviewing panel did not select Bibb, Miller and other members of the panel were informed by an associate warden that Kuykendall wanted them to "make it happen." Bibb received the promotion and there was evidence Bibb had bragged to plaintiff Mackey of her power over the warden. A departmental internal affairs investigation later concluded Kuykendall's personal relationship with Bibb rendered his involvement in her promotion unethical.
In July 1995, Brown and Miller competed for a promotion to a temporary post as facility captain at the prison. Brown announced to Miller that Kuykendall would be forced to give her, Brown, the promotion or she would "take him down" with her knowledge of "every scar on his body." Kuykendall served on the interview panel, conduct that the internal affairs investigation report later branded unethical because of his sexual relationship with Brown. Brown received the promotion, despite Miller's higher rank, superior education, and greater experience. According to Miller, the officers involved in the selection process expressed surprise that Brown had been promoted because they had recommended Miller for the higher position, and they commented to Miller that Brown's selection was unfair.
Department employees were aware of all three of Kuykendall's sexual affairs according to the internal affairs investigation. The internal affairs investigator encountered several employees who believed that persons who had sexual affairs with Kuykendall received special employment benefits. In her deposition, Cagie Brown acknowledged that there were widespread rumors that sexual affairs between subordinates and their superior officers were "common practice in the Department of Corrections."
In analyzing the case, the Court reiterated that California courts frequently turn to federal authorities interpreting Title VII of the Civil Rights Act of 1964 for assistance in interpreting FEHA, and then engaged in a detailed review of a lengthy policy statement by the EEOC on sexual favoritism. The Court agreed with the EEOC's statement that "[a]n isolated instance of favoritism toward a 'paramour' (or a spouse, or a friend) may be unfair," but it does support a discrimination claim. Regarding sexual favoritism that is more than isolated and that is based upon consensual affairs, the EEOC stated, "If favoritism based upon the granting of sexual favors is widespread in a workplace …. [A] message is implicitly conveyed that the managers view women as 'sexual playthings,' thereby creating an atmosphere that is demeaning to women. Both men and women who find this offensive can establish a violation if the conduct is 'sufficiently severe or pervasive to alter the conditions of [their] employment and create an abusive working environment." The Court followed the guidance of the EEOC, stating, "[W]idespread sexual favoritism [that is] severe or pervasive enough … create[s] a hostile work environment" under FEHA. Miller, slip. op. at p. 24.
To determine whether sexual favoritism is sufficiently severe or pervasive to create a hostile work environment, the "inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. . . . . Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish … conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive." Miller, slip. op. at p. 19, quoting Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81-82. The Court concluded that the evidence that Kuykendall promised and granted unwarranted and unfair employment benefits to Bibb, Patrick and Brown created at least a triable issue of fact on whether Kuykendall's conduct constituted sexual favoritism widespread enough to constitute a hostile work environment in which the message was implicitly conveyed that the managers view women as 'sexual playthings' or that the way for women to get ahead in the workplace is by engaging in sexual conduct.
Although this case involved extreme circumstances, employers need to be aware that sexual favoritism may support actionable hostile environment claims. Employers should take care to enforce their no-fraternization policies, or look at implementing such policies if they do not exist. In their anti-harassment training, employers need to emphasis that advancement is based on merit, not personal relationships. Lastly, they should appropriately investigate complaints that indicate advancement was based on sexual favoritism rather than merit.