Boss's Favorable Treatment of Lovers Can Be Harassment for Others by LINDA COADY, ESQ., Andrews Publications Staff Writer A supervisor's favorable treatment of his numerous female lovers can amount to sexual harassment for other women in the workplace, a unanimous California Supreme Court has decided. The justices explained that although an isolated instance of workplace favoritism for a lover would not usually be considered sexual harassment under California law, widespread favoritism can create a sexually hostile work environment. Repeated incidents of sexual favoritism send a message to female employees that they must demean themselves by becoming "sexual playthings" in order to get ahead at work, the court emphasized. The justices asked the Court of Appeal to review the case again to consider the defendants' contention that the plaintiffs, who were state employees, did not file their claims with the correct state departments on time. Such administrative complaints are a prerequisite for filing a lawsuit. Depending on its finding, the lower court may also have to address the plaintiffs' argument that a hostile work environment is an ongoing violation of the state's anti-discrimination law and, therefore, the limitations period was extended. According to court documents, plaintiff Edna Miller worked for the California Department of Corrections as a correctional officer. Miller heard about and later confirmed the fact that Lewis Kuykendall, the warden at the prison where she worked, was having sexual affairs with three female subordinates at the same time, court filings say. She said Kuykendall used his position to obtain promotions for his lovers, to bypass the usual chain of command for them, and to give them special assignments and work privileges. Not only was a better-qualified Miller passed over for a promotion in favor of a Kuykendall lover, but she and other female employees were subjected to repeated squabbling among the paramours, Miller's suit claimed. Kuykendall's lovers also bragged to their female co-workers about how much influence they had with him and how much power they accordingly had over prison policies, the suit said. Miller finally complained to the chief deputy warden about Kuykendall's affairs and the fact that his lovers were interfering with her job duties. Subsequently, one of those lovers assaulted Miller, holding her captive for two hours, Miller alleged. Kuykendall responded by promoting Miller but did not investigate the alleged assault. After a department internal affairs investigation was launched, Miller was allegedly targeted for retaliation that included a campaign of ostracism. She finally resigned when the stress became too great. As a result of the internal investigation, Kuykendall retired. Miller filed suit against the Department of Corrections and a number of individuals; she was joined by Frances Mackey, another DOC employee who knew about Kuykendall's misconduct and was also subjected to retaliation as a result. The complaint alleged, among other things, gender discrimination and retaliation in violation of California's anti-discrimination statute, the Fair Employment and Housing Act. The Sacramento County Superior Court granted summary judgment to the defendants and the California 3d District Court of Appeal affirmed. The state Supreme Court, however, reversed and remanded to the appellate court. In analyzing the issue of a hostile work environment created by a supervisor's paramour preferences, the justices looked to the Equal Employment Opportunity Commission's 1990 policy guidance on employer liability under Title VII for sexual favoritism. Following the EEOC guidance and the standards adopted in prior case law, the justices concluded that Miller and Mackey had shown that Kuykendall engaged in widespread sexual favoritism and that his misconduct was severe and pervasive enough to alter their working conditions. Considering all of the circumstances here from the standpoint of a "reasonable person" in Miller's position, the court said the plaintiffs had established a prima facie case of hostile-environment sexual harassment. The defendants attempted to convince the court that the judiciary should not get involved in "regulating personal relationships" in the workplace. However, the justices emphasized, "it is not the relationship, but its effect on the workplace, that is relevant under the applicable legal standard." Therefore, summary judgment in favor of the defendants on the hostile-environment claim must be reversed, the high court said. Next, the justices reinstated the plaintiffs' retaliation claim. The court noted that neither the trial court nor the appellate court actually ruled on whether the defendants had taken an adverse employment against the plaintiffs based on their complaints of sexual harassment or whether there was a causal relationship between the alleged protected activity and any adverse action. Even if Miller and Mackey did not complain specifically about sexual harassment when they notified superiors about Kuykendall, they could reasonably have believed they were making a complaint of harassment when they complained about "sexual favoritism" in the workplace, the Supreme Court explained. The high court remanded to the Court of Appeal so the panel could address whether the plaintiffs had established a prima facie case of retaliation and whether they filed their administrative claim during the limitations period.

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