<p>Romantic favoritism by the boss has long been a problematic issue for employers and employees alike, even though the law has rarely found such consensual relationships illegal. However, a recent California Supreme Court ruling greatly expands when an employee can sue for sexual harassment, and that decision may have important implications for the rest of the country.<br>
<br>
Long considered a bellwether, or trendsetter, state in terms of new regulations for everything from employment to environmental issues, California´s Supreme Court decision in <em>Miller v. Dept. of Corrections</em> has flung open the door for employees to sue employers when a sexual office relationship has a negative impact on them in the workplace - even if they are not directly involved in that relationship.<br>
<br>
<b>A Workplace Issue, Soap Opera - or Both?<br>
</b>In <em>Miller</em>, a male warden at a women´s prison was simultaneously having consensual sexual relations with three of his five female subordinates, all of whom were actively engaged in pursuit of career opportunities, training and promotions. The two remaining employees, who eventually became the plaintiffs, were not sexually involved with the male supervisor. Importantly for the case, neither plaintiff was asked for sexual favors nor threatened if she refused sexual advances. However, the three consenting employees did receive special treatment which included promotions over the plaintiffs, scheduling and training preference, reduced accountability and general favoritism.<br>
<br>
The existence of this harem arrangement was well known to all participants, who squabbled in jealous rivalries during work hours and openly engaged in indiscreet behavior with the supervisor during department social functions. But that´s not all: A female supervisor joined this dysfunctional workplace after the heterosexual relationships had persisted for about three years; she too began a romantic relationship with one of the three consenting female subordinates.<br>
<br>
After a series of complaints could no longer be ignored by internal affairs, an investigation ensued, requiring both plaintiffs to participate and provide statements. Despite assurances of confidentiality, the plaintiffs´ statements were revealed to both the male and female supervisors. Along with one of the sexually involved subordinates, they retaliated against the plaintiffs by interfering with the performance of their duties, demeaning them in group meetings and ostracizing them. And again, there´s more: The subordinate in the workplace liaison assaulted one of the plaintiffs and locked her in an office for two hours.<br>
<br>
<b>Enough Is Enough: An Office Affair Can Be Discriminatory.<br>
</b>In characterizing this workplace as "out of control" and finding it so hostile as to constitute a sexually harassing environment, the California Supreme Court reversed a previous ruling and split from the national trend that makes it difficult to sue because of a consensual workplace romance. Relying on federal and state anti-discrimination laws, the Supreme Court found that under certain circumstances sexual favoritism <em>could</em> create a hostile work environment by implying that supervisors view their female subordinates in a sexual - rather than professional - manner and that engaging in consensual sexual behavior is the only way for women to advance their careers.<br>
<br>
Previous cases had concluded that romantic favoritism is not actionable, because such behavior has a negative impact on both men and women equally and is not directed toward any member of a discrete class. But <em>Miller</em> takes a broader view, based on long-standing EEOC guidelines and lower appellate court rulings that recognized both men and women can complain about a hostile environment even when they are not the direct victims of gender-based hostility and that a hostile environment can exist even without sexual conduct.<br>
<br>
The extreme set of facts in <em>Miller</em> enabled the court to declare when "enough is enough," and in that sense, <em>Miller</em> is a groundbreaking case. It has established that widespread sexual favoritism may be actionable because of the effect it has on <em>all</em> members of the workplace. That´s an issue that would have to be determined at trial, based on the facts. In other words, liability is not triggered by the romantic relationship between the co-workers itself but rather by the effect the relationship had on the workplace.<br>
<b><br>
Next: Codes of Conduct, Love Contracts and More Lawsuits.<br>
</b>At least in California, <em>Miller</em> promises to generate employer reactions ranging from the implementation of stronger policies against nepotism and intra-company fraternization to requiring the so-called love contract in which employees voluntarily reveal extracurricular social relationships to management so that their consensual nature can be documented.<br>
<br>
The poisonous environment targeted by <em>Miller</em> was a sexually charged workplace where merit-based promotion, training and discipline clearly didn´t apply to the boss´ romantic favorites, or harem. But it´s precisely because that environment was so toxic that it almost certainly now will be easier for liaison observers to become sexual harassment plaintiffs.</p>
<p><b>About the Author</b></p>
<p>Diana P. Scott is a shareholder at Greenberg Traurig in Los Angeles and co-chair of its national labor and employment practice. Tiffany Mitchel contributed to the article and is an associate in the firm´s Los Angeles employment practice.</p>
<p><b>About Veritude</b></p>
<p>The article originally appeared in <em><b><a href="http://www.veritude.com/ResourceCenter/Home.aspx">Workforce Insights</a></b></em> on <b><a href="http://www.veritude.com/">Veritude.com</a></b>. Veritude provides strategic human resources - the talent, technology and tactics that growing firms need in order to anticipate and adapt to changes in the workplace. Veritude is a wholly owned subsidiary of Fidelity Investments Company. Headquartered in Boston, the company serves clients throughout the United States and Canada and is part of Fidelity´s ongoing investment and leadership in outsourced HR services. <em>To review other articles, research and expert analysis relevant to HR professionals seeking to stay informed, please visit <b><a href="http://www.veritude.com/">www.veritude.com</a></b>.<b> </b> For more information, contact: <b><a href="mailto:inquiry@veritude.com">inquiry@veritude.com</a></b> or call:1-800-597-5537. </em></p>
<p><sup> ©</sup>2005 Veritude,LLC. Reprinted with permission.</p>
