A boss is having simultaneous affairs with three of his female employees. Can other female employees who aren’t romantically involved with the boss sue for sexual harassment if their amorous co-workers are receiving preferential treatment?
Yes, according to a recent California Supreme Court decision.
“Employers better get busy monitoring the workplace and make sure that even consensual sexual relationships aren’t creating a hostile work environment for everyone else,” said Phil Horowitz, chair of the California Employment Lawyers’ Association.
Horowitz called the July 18 California Supreme Court case groundbreaking, saying it will spread to other jurisdictions.
Edna Miller and Frances Mackey, former employees of the Valley State Prison for Women, sued the California Department of Corrections for sexual discrimination and harassment in 1999, claiming that their boss had been having affairs with three female employees and those workers were being shown favoritism over uninvolved female co-workers.
A lower court ruled that the women had no case because they had not been subjected to sexual advances and were not treated differently from male employees.
However, the California Supreme Court disagreed, saying that the fact their boss, former prison warden Lewis Kuykendall, had been carrying on affairs with at least three female employees created a demeaning work atmosphere. Female employees at the prison were viewed as “sexual playthings” and it was widely believed that having an affair with the boss was the only way to get promoted.
The court concluded 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,” that might not be the case when such behavior was rampant throughout a workplace.
In this case, workers who clearly had more experience and more education were passed over for promotion in favor of less qualified women who were sexually involved with the warden.
Complaining about the unfairness of the situation led to job misery for Miller. Her orders were countermanded, her authority undermined and her supervisory duties reduced by female employees who were sexually involved with Kuykendall. She also was given additional duties and her work was criticized constantly.
Mackey, another employee, began suffering similar treatment after speaking up.
Miller eventually took her frustrations to Lewis Jones, Kuykendall’s superior officer. He called internal affairs to investigate and after being assured that her comments would not be repeated, Miller told her story to an internal affairs investigator. Soon afterwards the situation got even worse, leading her to believe her comments had gotten back to her harassers.
She quit her job in summer 1998 and filed a complaint with the Department of Fair Employment and Housing the following March. Mackey also quit and filed a similar complaint. She died before the California Supreme Court verdict was reached.
The warden retired, a female employee was demoted and transferred and a second female employee resigned.
The supreme court judges ruled unanimously there was evidence that Kuykendall promised and granted unwarranted and unfair employment benefits to three female workers with whom he was sexually involved. One benefit granted was the power to abuse other employees who complained about the affairs.
After the judgment of the Court of Appeal was reversed by the California Supreme Court the matter was remanded to the Court of Appeal for further proceedings.