For the last five years I have worked for a large technology company in San Jose. I commute to San Jose because the salary and benefits are very good. During the five years that I have worked for this company, I have come to learn that the most highly compensated position in the office is working directly for one of the more senior executives. The rumors around the office are that this particular executive has had an affair with each of his assistants and I have seen enough inappropriate interaction between this executive and his assistants to believe the rumors to be true. It does not seem fair to me that in order to get the highest paying position in the office, you need to have an affair with that executive. Is that illegal sexual harassment?


As a result of a decision by the California Supreme Court earlier this week, the answer to your question is “possibly.” In Miller v. The Department of Corrections, the California Supreme Court held that sexual favoritism at work might constitute illegal sexual harassment. This is true even when the individual plaintiff has not been personally harassed.

In Miller, two female employees of the California Department of Corrections sued the Department as a result of the Warden’s affairs with three subordinates. According to the lawsuits, the Warden’s “girlfriends” received special treatment including promotions that they may not have otherwise been entitled to. Based on these facts, the California Supreme Court overturned a Court of Appeal decision, which held that the fact that a supervisor grants favorable employment opportunities to a person, with whom the supervisor is having a sexual affair, does not, in and of itself, violate the California Fair Employment Housing Act (FEHA). Rather, the California Supreme Court, relying heavily on federal law, held that a plaintiff may establish an actionable claim of sexual harassment pursuant to the FEHA by demonstrating that widespread “sexual favoritism” was severe and pervasive enough to alter his/her working conditions and create a hostile work environment.

The defendants in the Miller case made a number of arguments to support their claim that sexual favoritism should not violate the FEHA. One was that the court should not find a violation of the FEHA, absent evidence that the Warden “flaunted his consensual sexual affairs, coerced or sought to derive advantage from other employees in connection with them, or engaged in ‘open sexual conduct, sexual discussions, or other indiscreet behavior in the workplace.’” In response the court agreed that “the presence of mere office gossip is insufficient to establish the existence of wide-spread sexual favoritism.” But, the Miller court noted that there were admissions by the participants concerning the nature of the relationships, boasting by the favored women, eyewitness accounts of incidents of public fondling, and repeated promotions despite lack of qualifications. Defendants further argued that permitting a claim of sexual harassment under these circumstances would inject the courts into relationships that are private and consensual, and that social policy favors rather than disfavors such relationships. In response the Court stated that “Defendant’s concerns about regulating personal relationships are well founded, because it is not the relationship, but its effect on the workplace, that is relevant under the applicable legal standard.”

In light of the Miller decision, the question of whether or not the situation at your workplace constitutes illegal sexual harassment will turn on factors such as whether the personal relationships at issue interfere with the work performance of other employees, or alter the conditions of employment of other employees. A crucial inquiry would be whether the sexual favoritism is widespread, severe and pervasive enough to send the message that “the way for women to get ahead in the workplace is by engaging in sexual conduct.”
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