Jottings By An Employer's Lawyer

Monday, July 18, 2005

Paramour Claims Live in California - Although Maybe It's A Question of How Many?

Meandering through what sounds as if it was a modern day Peyton Place set behind bars, the California Supreme Court in a case involving the California prison system, today unanimously found a cause of action for paramour preference can exist. The Court set out the circumstances under which such a cause of action is viable:
[A]lthough 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.
Miller v. Department of Corrections (7/18/05) [pdf].

Having established a new standard, the Court goes on to find that the plaintiffs had done enough in this case to go forward on their claims, reversing summary judgment which had been affirmed by the intermediate appellate court.

The defendant tried to rely on a large body of cases holding that a supervisor who favors only his (or her) paramour, without more, is not sufficient to establish a cause of action. While not disagreeing in theory, the Court found they were not applicable here where the allegations were that the supervisor in question, a prison warden, was having affairs with three different female employees, apparently at the same time. There were also allegations that one of the three women involved with the male warden may also have been having an affair with a female warden, but it appears that fact was more a matter of (prurient?) interest than a needed ingredient for the claim which the Court today finds exists.

As support for their theory, the Court relied (you could almost see the gleam in their eye) on EEOC statements of position approved by no less than the then Chair of the EEOC, now Supreme Court Justice, Clarence Thomas.

An overly simplistic view of the case is that the law in California is one affair with a subordinate is ok, simultaneous affairs with three subordinates is not, and two --- remains to be seen. Pragmatically, it means more involvement in the affairs (pun definitely intended) of their employees will now be required of those brave souls known as California employers.

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