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Pervasive sexual favoritism could constitute workplace discrimination, the California Supreme Court has ruled. Miller v. Department of Corrections, No. 05 C.D.O.S. 6268. Ruling in a case that involved what it called “an outrageous campaign of harassment,” the court unanimously held that while an isolated workplace affair might be harmless, managers’ sexual liaisons with multiple subordinates could create a hostile work environment for others. “Even widespread favoritism based upon consensual affairs,” Chief Justice Ronald George wrote, “may imbue the workplace with an atmosphere that is demeaning to women because a message is conveyed that managers view women as ‘sexual playthings’ or that the way required to secure advancement is to engage in sexual conduct with managers.” Two former employees of the state Department of Corrections, Edna Miller and Frances Mackey, filed suit in 1999, claiming they had been subjected to sexual discrimination and sexual harassment because their boss, warden Lewis Kuykendall, engaged in affairs with his secretary and two female associate wardens. Miller, who resigned in 1998 after 15 years with the state, and Mackey, who left a year later after 25 years, claimed that they were passed up for promotions, which went instead to Kuykendall’s less-experienced paramours. Miller and Mackey also claimed that they were subjected to retaliation whenever they complained about the affairs. Miller claimed she was physically assaulted once, lost a special parking spot needed for a disability and was often countermanded, undermined and given additional onerous duties. Mackey was demoted and said she was verbally attacked. The suit claimed that the actions of the warden and his mistresses violated the state’s Fair Employment and Housing Act (FEHA). A trial court judge tossed the suit on summary judgment, and an intermediate appellate court affirmed, holding that while there was evidence of favoritism, there was no recognizable harassment or discrimination based on sex or gender. All women and men who didn’t sleep with the warden were treated equally, the court held. “Plaintiffs were not complaining about sexual harassment, but unfairness,” Justice Harry Hull Jr. wrote in the appellate court’s decision. “This is not protected activity under the FEHA.” The state Supreme Court said that California’s protections against sexual harassment range from “expressly or impliedly conditioning employment benefits on submission to or tolerance of unwelcome sexual advances to the creation of a work environment that is hostile or abusive on the basis of sex. Such a hostile environment may be created even if the plaintiff never is subjected to sexual advances.” George said that the two women had established a prima facie case of discrimination that should have been put before a jury. The plaintiffs, he wrote, “proffered evidence demonstrating the effect of widespread favoritism on the work environment, namely the creation of an atmosphere that was demeaning to women.” The case was remanded to the appellate court for further proceedings.

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