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Soon after transferring to a job at Chowchilla’s Valley State Prison for Women in 1995, Edna Miller learned that moving up in rank could come at a high price. As a later investigation would reveal, warden Lewis Kuykendall had a penchant for bedding female subordinates, then promoting them to positions of authority over more experienced employees. Miller said she complained, only to be met with indifference by Kuykendall and intimidation from his mistresses, who constantly threatened Miller and made work a living hell. One of them, promoted to associate warden, once physically assaulted Miller, she said. Frustrated and frightened, Miller, who had risen to correctional captain after 19 years with the state Department of Corrections, reluctantly resigned in 1998, she said. A year later, Miller joined with Frances Mackey, a 24-year Corrections employee also driven out, in suing the department for sexual discrimination, sexual harassment and retaliation in violation of the Federal Employment and Housing Act. On Tuesday, their case goes before the California Supreme Court, which is being asked to decide whether sexual favoritism creates a hostile work environment that equates to sexual discrimination. Appellate specialist Daniel Smith, who will argue for Miller and Mackey, said recently that the case “deals with a circumstance that occurs all too frequently — where a male supervisor is putting pressure on women subordinates to exchange sexual favors for job benefits.” While there was no finding that the warden pressured anyone to have sex, Smith says the resulting atmosphere was hostile. “What’s important about this case,” the Kentfield solo practitioner said, “is that it affects the rights of the other women in the workplace who were not involved in the exchange of sex for job benefits.” The attorney general’s office, representing the state, argues that if there were illicit affairs at Valley State Prison, Kuykendall’s favoritism was based on consensual relationships, not gender. Therefore, there could be no sexual discrimination. “Both men and women who are not the paramour are not promoted; thus both men and women who are not the paramour are treated equally,” Sacramento Deputy AG Diana Cuomo, who could not be reached for comment, wrote in court papers. “Although choosing a person for promotion because of their paramour status is not good business practice,” she continued, “it is not unlawful discrimination based upon a protected classification.” The case has generated considerable controversy ever since Sacramento’s Third District Court of Appeal ruled against Mackey and Miller two years ago. While holding that there was evidence of preferential treatment, the court said there was no recognizable harassment or discrimination based on sex or gender. “Plaintiffs were not complaining about sexual harassment, but unfairness,” Justice Harry Hull Jr. wrote. “This is not protected activity under the FEHA.” Cuomo and her sole amicus curiae, the Employers Group, argue that reversing the appeal court would amount to legislating private relationships in the workplace. Consumer Attorneys of California, whom Smith also represents, and other amici, such as San Francisco’s Equal Rights Advocates, disagree, maintaining that common sense dictates that discrimination exists when a boss helps advance the careers of lovers who aren’t qualified for their jobs. “Kuykendall’s repeated affairs and egregious sexual favoritism sent a clear message to women in the workplace that they were being judged by their sexuality, and that the way to get ahead was to sleep with superiors,” San Francisco attorney Barbara Lawless, who represented Mackey and Miller before the trial court, wrote in documents filed with the Supreme Court. The Lawless & Lawless partner also argued that the paramours’ “abusive behavior sent an equally clear message to employees that they should keep quiet about the affairs and favoritism or suffer the consequences.” The allegations in the case read like a prison-house version of “Peyton Place.” Miller said she hadn’t been at Valley State Prison for Women very long before discovering that it was common knowledge that Kuykendall, a married man, was having illicit affairs with secretary Kathy Bibb, associate warden Debbie Patrick and correctional counselor Cagie Brown. Mackey said she made the same discovery after being transferred to the facility in 1996 to serve as a records manager. Brown gained power quickly, eventually being promoted to facility captain, despite Miller’s better credentials. According to Miller, Brown said if Kuykendall didn’t promote her, she would “take him down” because she knew “every scar on his body.” Kuykendall, who is no longer the warden at Valley State Prison, allegedly told Miller that Brown and the other women had a “rope around his neck.” A steady pattern of abuse allegedly emerged, with both Mackey and Miller claiming harassment and intimidation. Miller at one point was stripped of special accommodations for a chronic inflammatory disease and Mackey was demoted. According to court papers, internal investigators subsequently found that Kuykendall’s relationships had, indeed, created a hostile working environment. Nonetheless, both the trial court and the appeal court ruled against Mackey and Miller. In Supreme Court papers, Lawless argues that the Third District’s decision conflicts with Proksel v. Gattis, 41 Cal.App.4th 1626, a 1996 decision by San Diego’s Fourth District. She and Smith say Proksel held that an illicit affair between a manager and a subordinate could create a hostile work environment in certain circumstances. Cuomo, however, contends that Proksel isn’t that broad, instead only holding that so-called “paramour preference” alone isn’t enough to sustain a claim of discrimination or harassment. She also cites a 1990 policy statement by the Equal Employment Opportunity Commission that says an “isolated instance” of workplace favoritism “may be unfair,” but isn’t necessarily discriminatory. “The EEOC’s position,” Cuomo wrote, “is consistent with Proksel and federal appellate authority that holds ‘paramour preference’ does not constitute gender discrimination.” But as Smith and Lawless point out, what was going on at Valley State Prison was more than an isolated instance. “This warden had sexual relationships with three women, and he was blatant about it and they were blatant about it,” Smith says. “So the misconduct here does not resemble a discreet romantic relationship.” The court’s decision could be significant for budding office romances. As the AG’s office notes, the workplace is often people’s primary source of social interaction, where intimate bonds blossom. “By scrutinizing workplace relationships, the courts may hamper the development of acceptable and desirable social relationships,” Cuomo wrote. “Knowing that a relationship may be the subject of litigation is an incentive to not pursue the relationship.” But Los Angeles lawyer Jeffrey Winikow, writing for the California Employment Lawyers Association as amicus, argues that there must be boundaries. “While no one should deny a woman the fundamental right to have a sexual affair with her boss,” he wrote, “no one — let alone the state of California acting as employer — should be rewarding her for doing so.” The case is Mackey v. Department of Corrections, S114097.

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