Warden's consensual affairs created hostile prison workplace.

In a decision that may have employers scrambling to rewrite their sexual harassment policies, the California Supreme Court has allowed two workers to bring sexual harassment claims against their employer because a supervisor's sexual favoritism of other women created a hostile work environment. (Miller v. Dep't of Corrections, 115 P.3d 77 (Cal. 2005).)

What is unusual about this case is that the plaintiffs, two employees of the California Department of Corrections, were not sexually involved with the supervisor, a warden at the Valley State Prison for Women in Chowchilla, California. There were no unwelcome requests for sexual favors, leering, or lewd conduct--it was the warden's favoritism toward three other women, with whom he had consensual sexual affairs, that the plaintiffs claim created the hostile work environment in violation of the California Fair Employment and Housing Act.

Both the trial and appeals courts had concluded that the warden's conduct, while unfair, was not sexual harassment. The female plaintiffs were in the same position as male employees who failed to acquire the benefits that the warden gave the three women, the appeals court reasoned, and did not show a "concerted pattern of harassment sufficiently pervasive to have altered the conditions of their employment on the basis of sex."

The California Supreme Court agreed that preferential treatment toward an employee on the basis of a consensual relationship ordinarily is not sexual harassment. However, it reversed the appeals court, concluding that the evidence created at least a triable issue of fact on the question of whether the warden's sexual favoritism was widespread enough to constitute a hostile work environment.

Although the case was decided under state law, the court cited an Equal Employment Opportunity Commission (EEOC) policy statement saying that widespread sexual harassment can create a hostile work environment if employees are given the message that managers view women as "sexual playthings" or that the way for women to get ahead in the workplace is by engaging in sexual conduct.

The warden was having affairs with a secretary, an associate warden, and another department employee. Other prison employees were aware of all three relationships, and several said they believed that having a sexual relationship with the warden was a way to get promoted or obtain special benefits in the workplace.

Employees had seen the secretary and the warden fondling each other at work-related social events and had witnessed the three women squabbling over the warden. When one of the plaintiffs served on an interviewing panel that rejected one of the women for a promotion, she and other panel members were told that the warden wanted them to "make it happen." Another of the three women told a coworker that the warden would be forced to give her a promotion or she would "take him down" because she knew "every scar on his body." This woman was promoted to associate warden within a year and a half a fast rate for promotion at the facility.

The warden also failed to discipline one of the women even though she allegedly physically assaulted one of the plaintiffs and held her captive for two hours. He told the plaintiff he could do nothing about the situation because of his relationship with the woman and encouraged the plaintiff not to file a harassment complaint because she would "cause an ugly scandal."

While many have called the decision "groundbreaking," Barbara Lawless, a San Francisco-based lawyer who represented both plaintiffs, said the case did not change existing law. Rather, it tracked EEOC regulations that have been in effect for a long time, she said.

Stephen Tedesco, who represents employers and also practices in San Francisco, said, "It's hard to say that the result is unjust in this case." But he predicted the decision might create a lot of litigation over what constitutes excessive favoritism when workplace relationships are consensual.

He said his firm will refine the way it conducts sexual harassment training because the law no longer considers only whether the conduct is unwelcome to one of the parties, but also "How does a third party react to welcome conduct? And how do other people react to it?"

Jan Stiglitz, a law professor at California Western School of Law in San Diego and a labor arbitrator, said that even though this case was decided under California law, it has broader implications. "Since it is based on the EEOC guidelines, it can be precedent for the application of those guidelines in cases where the plaintiff can allege that a superior has had multiple sexual partners in the workplace and has favored those partners," he said.