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Sacramento’s Third District Court of Appeal, in a ruling guaranteed to shock female advocates, threw out sexual harassment claims by two female corrections employees whose boss bedded — and then promoted — three other female employees, who quickly flaunted their power. There was no sexual harassment involved, the court held unanimously in a ruling Tuesday, even though the complainants claimed they were subjected to a hostile work environment where it appeared that promotions only came through sexual favors. “Plaintiffs were not complaining about sexual harassment, but unfairness,” Justice Harry Hull Jr. wrote for the court. “This is not protected activity under the [state's Fair Employment and Housing Act].” Hull went on to say that the only way to establish a sexual harassment claim is to “prove a causal connection between the gender of the individual claiming discrimination and the resultant preference or disparity.” “Such causal connection,” he wrote, “is missing in a case where, without more, preferential treatment is afforded to a supervisor’s paramour. Others are not denied the same benefit because of their gender, but because they are not the paramour.” Justices Vance Raye and Connie Callahan concurred. The court’s 38-page ruling shocked and offended San Francisco lawyer Barbara Lawless, who represented plaintiffs Frances Mackey and Edna Miller. “That is so outrageous,” the Lawless & Lawless partner said Tuesday. “We certainly are going to consider appealing this to the Supreme Court. That is so bad.” Alameda lawyer Andrea Carlise, who is the president of California Women Lawyers, agreed. “Underlying this case,” the Carlise & Carlise partner said, “is the message that job benefits are tied to acquiescence [to] sexual advances.” Mackey and Miller, both former employees of the Valley State Prison for Women at Chowchilla, sued the state Department of Corrections for sexual harassment after then-Warden Lewis Kuykendall engaged in affairs with three female underlings — Cagie Brown, Kathy Bibb and Debbie Patrick. They also alleged that Brown and Chief Deputy Warden Vicki Yamamoto were sexually involved. According to the appeal court ruling, all four women got promotions that placed them in supervisory roles over Miller and Mackey and that they often “boasted” about their power over Kuykendall. Miller and Mackey complained, claiming they were constantly harassed and subjected to intimidation and that most of their decisions were overturned by the four women who held Kuykendall’s favor. Sacramento County Superior Court Judge Joe Gray threw out their complaint, ruling that the women were not sexually harassed under the state’s employment discrimination rules. The appeal court agreed. “Neither Miller nor Mackey complained that the affairs and related conduct created an atmosphere whereby they were being judged on their sexuality, rather than on merit,” Justice Hull wrote. “Neither woman claimed to have been propositioned by a supervisor, expressly or impliedly, or to have been the subject of unwanted sexual attention � Rather, plaintiffs’ complaints and reports concerned the unfairness of promotions and other benefits given to paramours and the resulting mistreatment of them by those paramours.” The appeal court justices also said that while there was no evidence the warden “flaunted” any of his relationships, there was evidence that his paramours “bragged” about their influence over him. “However,” Hull wrote, “this is not flaunting of the sexual relationships, but flaunting of the power flowing from those relationships.” Plaintiffs’ lawyer Lawless said Miller and Mackey no longer work for the Department of Corrections. “They had to get out,” she said. “The conditions were too intolerable.” Sacramento-based Deputy Attorney General Timothy Yeung referred calls to Department of Corrections spokesman Bob Martinez, but he could not be reached. The case is Mackey v. Department of Corrections, C040262. The full text of the ruling will appear in Thursday’s California Daily Opinion Service.

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