If you haven't been sleeping with the boss, you may be the victim of sexual harrassment —at least in California if someone else in your department has been courting his or her favors. Yesterday the California Supreme Court ruled 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."

According to Maura Dolan of the LA Times,

"Widespread favoritism based upon consensual sexual affairs may imbue the workplace with an atmosphere that is demeaning to women because a message is conveyed that managers view women as 'sexual playthings,' " Chief Justice Ronald M. George wrote for the court.

In such a situation, other employees may believe "that the way required to secure advancement is to engage in sexual conduct with managers," he added.

The case

The chief deputy warden at the Central California Women's Facility was apparently having a grand old time and competition for his favors was fierce—

The ruling is the result of a sexual harassment lawsuit, which has not yet been tried, against the state's Department of Corrections. Edna Miller and Frances Mackey charged that a prison warden, Lewis Kuykendall, who was married, had sexual affairs with three other employees and gave them preferential job treatment. The two women said they suffered retaliation when they complained.
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The affairs occurred from 1991 to 1998, when Kuykendall was the chief deputy warden of the Central California Women's Facility and later the warden of the Valley State Prison for Women, both in Chowchilla. The court said the affairs were concurrent.

Mackey, who has since died, and Miller presented evidence that Kuykendall's favoritism to his girlfriends impeded their job advancement. They also said his behavior opened them to harassment by one of the girlfriends. Employees often had to endure jealous and emotional squabbling among the girlfriends over Kuykendall, the court said.

Two of the girlfriends bragged to others about their power over Kuykendall, and he displayed "indiscreet behavior" at a number of work-related gatherings, the court said.

In one incident, Miller competed with Cagie Brown, one of the girlfriends, for a promotion, the court said. Brown told Miller that Kuykendall would have to give her the job or she would "take him down" by naming "every scar on his body," the court said.

Brown received the promotion even though Miller had a higher rank, superior education and more experience, according to the court.

Miller also said she ran into problems with a female deputy warden who she believed was engaged in a relationship with Brown "that was more than platonic," the court said. The deputy warden, Vicky Yamamoto, and Brown frequently countermanded Miller's orders, undermined her authority, imposed additional duties and threatened reprisals if she reported problems, the court said.

When she complained to Brown about her affair with Kuykendall and about the mistreatment by Brown and Yamamoto, Brown assaulted Miller and held her captive in her office for two hours, the court said.

"Kuykendall failed to investigate the assault after Miller complained to him," the court said.

"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," George wrote.

An internal affairs investigation by the Department of Corrections confirmed that Kuykendall, who retired under fire, engaged in sexual favoritism and that it was widely known and resented by other employees, the court said.

The impact on employers

Shannon B. Nakabayashi, who represented California employers in the case, said the decision would result in employers monitoring office romances, even those between employees of the same rank, for fear of being sued for tolerating a sexually charged work environment.

"Unfortunately, employers will have to pay a lot more attention to these things," said Nakabayashi, who represented the Employers Group.
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A spokesman for Atty. Gen. Bill Lockyer said that the ruling marked a significant change and noted that California employers will now be more vulnerable to employment suits.

Well, it's really not as tough as it first appears—

Despite employers' fears, California companies will not be vulnerable under the ruling because of "mere office gossip," the court said. Evidence of widespread sexual favoritism will be required to prevail in a suit, the court said.

"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," George wrote.

To put it another way—if you're the boss, you're allowed one affair at the office, but two might be too many.

Related post
Corporate affairs (5/10/05)