"What Are They Thinking?" -- [First in] A Continuing Series
Recently, our California Supreme Court has taken to issuing decisions that, at least as they are reported to the larger world, seem to require . . . explanation? Clarification? A double-take at least? These have included cases holding roller coasters to the same safety standards as trains and crosstown buses, cases that at first glance appear out of step with the U.S. Supreme Court on punitive damages, and so on. With this post, this weblog begins a recurring series -- "What Are They Thinking?" -- in which these seeming anomalies will be poked and prodded to see if they really are as perplexing as first impressions suggest.
Under consideration today: the Court's July 18 opinion in Miller v. Department of Corrections, revisiting the law governing employers' liability for sexual harassment in the workplace.
For those just tuning in, a few broad generalities: Sexual harassment is viewed in the law as a form of gender-based discrimination, and employers who commit or support harassment may be liable for substantial damages to those against whom the discriminatory conduct has operated. Sexual harassment generally comes in two major varieties: "quid pro quo," the most obvious form, in which advancement or benefits at work are conditioned upon the employee succumbing to the employer's demands for sexual favors, and the more subtle "hostile environment," in which the employee is subjected to an overall atmosphere that is "hostile or abusive on the basis of sex" and so offensive to a person of ordinary sensibilities that it interferes substantially with the conditions of the employment.
Turning to the case at hand, here are the headline and the opening paragraphs of the Los Angeles Times' report on the state Supreme Court's latest foray into the field:
Affairs at Work Subject to Suits
Expanding the law against sex harassment, the state high court says all workers may suffer if a relationship causes the boss to show favoritism.
SAN FRANCISCO — Workers who lose promotions to colleagues who are sleeping with the boss can sue their employers for sexual harassment, the California Supreme Court ruled Monday.
In a significant expansion of sexual harassment law in California, the state high court unanimously decided that any worker, male or female, could suffer sexual harassment even if his or her boss never asked for sexual favors or made inappropriate advances.
Previously, only the worker who had the affair or received unwanted sexual attention could prevail in California.
"My, my," you may be saying, "that sounds like a real change in the law. You mean I can sue my boss because he is having a purely voluntary affair with someone else?" Yes, you can, says a unanimous California Supreme Court, while emphasizing that the reasons for its decision depend heavily on the salacious facts of the case before it (which the Times decorously places well down in its article).
In this case prison warden Lewis Kuykendall was, in essence, maintaining his own personal harem, carrying on consensual sexual relationships with at least three female members of the prison staff: his secretary Kathy Bibb, associate warden Debbie Patrick, and another Corrections Department employee with the wonderfully apt name Cagie Brown. The plaintiffs were two other female employees, neither of whom was ever involved with or approached in any directly improper way by Kuykendall. Their complaints of sexual harassment depended on what they alleged was pervasive favoritism by Kuykendall toward his sexual partners and those partners' misuse of their own perceived position of influence with Kuykendall. Among the many incidents on which plaintiffs relied:
- When a panel failed to promote Kathy Bibb to a counseling position, Kuykendall made it know that they should "make it happen." Bibb got the promotion.
- An employee (not a party to the case) was terminated after she made Kuykendall's affair with Cagie Brown public.
- Brown bragged to one of the plaintiffs concerning her ability to control Kuykendall, and to obtain extra benefits from him. When competing with the plaintiff for a promotion, Brown bragged that she would get the job because otherwise she would "take [Kuykendall] down," taking advantage of her knowledge of "every scar on his body."
- The three women involved in the affairs publicly squabbled over Kuykendall in front of other employees.
- Kuykendall was seen fondling one or another of the three at employee social gatherings.
- Brown became involved in another relationship, with a female assistant warden, that was described as "more than platonic." When one of the plaintiffs confronted Brown about her various relationships, Brown assaulted her and essentially held her prisoner in an office for several hours.
Two lower courts rejected the plaintiffs' claims, finding that plaintiffs themselves had never been the objects of improper overtures by Kuykendall and that they had not been treated any differently than male employees (i.e., they had not been discriminated against because they were women). The Supreme Court reversed, concluding that
. . . although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment, 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 the management.
The Court was at pains to emphasize that it was not holding that private, consensual relations between co-workers are actionable by nonparticipants in every case, or even in most cases. What caused the Court concern here was not the existence of Kuykendall's complicated personal life, but the seemingly abundant evidence that the various relationships had a direct and negative impact on working conditions for other employees.
Certainly, the presence of mere office gossip is insufficient to establish the existence of widespread sexual favoritism, but the evidence of such favoritism in the present case includes admissions by the participants concerning the nature of the relationships, boasting by the favored women, eyewitness accounts of incidents of public fondling, repeated promotion despite lack of qualifications, and Kuykendall’s admission he could not control Brown because of his sexual relationship with her ― a matter confirmed by the Department’s internal affairs report. . . .
Finally, defendants warn that plaintiffs’ position, if adopted, would inject the courts into relationships that are private and consensual and that occur within a major locus of individual social life for both men and women — the workplace. According to defendants, social policy favors rather than disfavors such relationships, and the issue of personal privacy should give courts pause before allowing claims such as those advanced by plaintiffs to proceed. Defendants urge it is safer to treat sexual favoritism as merely a matter of personal preference, and to recall that the [Fair Employment and Housing Act] is not intended to regulate sexual relationships in the workplace, nor to establish a civility code governing that venue.
We do not believe that defendants’ concerns about regulating personal relationships are well founded, because it is not the relationship, but its effect on the workplace, that is relevant under the applicable legal standard. . . .
The Court's logic, focusing as it does on a substantial compilation of evidence showing a pervasive unfairness toward women who were not involved in the affairs, is reasonably compelling: even if Kuykendall did not intend to discriminate against those other women, the practical effect in the workplace was the same.
Note, by the way, that the Court is concerned in this case only with discrimination against women, presumably because both of the plaintiffs were female. The Times report closes with a comment by the plaintiffs' counsel, suggesting employers had best look out for future litigation involving non-consensual non-participants of all stripes:
Barbara Lawless, who represented the alleged victims in the case, said the decision could permit male as well as female employees to sue when the boss is showing favoritism to sexual partners.
'If you have to sleep with the boss to get ahead, men have causes of action too,' Lawless said.
She said it was unfair in the past that only the people who had slept with the boss could sue for sexual harassment.
'It vindicates women who sit there and watch their sisters in the workplace have affairs,' Lawless said.
Sisterhood is powerful. Also potentially litigious.
The decision in Miller v. Department of Corrections (July 18, 2005), Case No. S114097, can be accessed at these links in PDF and Word formats.
[Note: Links expire approximately 120 days following issuance of the opinions; the opinions should still be accessible thereafter by substituting "archive" for "documents" in the URL.]