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Numerous courts have rejected claims of sex discrimination by a plaintiff alleging that a supervisor engaged in unlawful discrimination in awarding a job benefit to a paramour because of favoritism rather than job qualifications. ‘SEXUAL FAVORTISM’ These courts have reasoned that such “sexual favoritism” is a result of the supervisor’s acting because of a relationship with an individual rather than because of the person’s sex. Courts have stated that while such favoritism may be perceived as unfair, such favoritism does not constitute discrimination because of sex. While policy guidance by the federal Equal Employment Opportunity Commission had suggested the theoretical possibility of a claim of sexual harassment based on sexual favoritism, no published case reflects that any court has applied the policy guidance to allow such claims to proceed past the summary judgment stage. Recently, in Miller v. Department of Corrections, 2005 Cal. LEXIS 7606, (July 18, 2005), the California Supreme Court embraced the EEOC’s policy guidance and reversed rulings by the lower courts granting summary judgment to the employer on a claim of sexual favoritism. The court found that “an employee may establish an actionable claim of sexual harassment under the [California antidiscrimination statute] by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment.” Id. at *37-38. The Miller court distinguished the decisions of several courts that had rejected sexual favoritism claims as reflecting mere personal preference, under circumstances where female and male nonfavored employees are equally disadvantaged. The distinguished cases included the 2nd Circuit Court of Appeals decision in DeCintio v. Westchester County Medical Center, 807 F2d 304 (2d Cir. 1986), which held that “sex” in the context of the prohibition contained in Title VII of the Civil Rights Act of 1964 “logically could only refer to membership in a class delineated by gender, rather than sexual activity regardless of gender.” Id. at 306. Based on this standard, the court stated that the plaintiffs “were not prejudiced because of their status as males; rather, they were discriminated against because [the plaintiff's supervisor] preferred his paramour.” Id. at 308. The Miller case already has received intense interest from the media. It was the focus of a feature article on the cover of the “Style” section of The New York Times on Sunday July 24, and is likely to receive even more scrutiny as the plaintiffs’ bar asserts that Miller portends an expansion of the definition of hostile work environment sexual harassment. Attorneys for employers can be expected to disagree with Miller and point to the long line of cases that suggest a different legal standard for assessing claims of sex discrimination based upon sexual favoritism. Employers also will point to the extreme circumstances presented by what the court termed an “outrageous campaign of harassment.” In this month’s column, we analyze the Miller and DeCintio cases, and suggest several issues that employers should consider when faced with claims of discrimination based on sexual favoritism. ‘MILLER V. DEPARTMENT OF CORRECTIONS’ In Miller, plaintiffs Edna Miller and Frances Mackey, employees at the California Department of Corrections (department), asserted claims of sexual harassment under California’s antidiscrimination statute, based on the alleged conduct of Lewis Kuykendall, the warden and member of senior management at the institution where plaintiffs worked. The trial court granted the department’s motions for summary judgment, and the California intermediate appellate court affirmed. Because the case before the California Supreme Court was an appeal from the granting of defendants’ motion for summary judgment, the court liberally construed the evidence in support of the plaintiffs and also resolved doubts concerning the evidence in favor of plaintiffs. Miller, 2005 Cal. LEXIS at *24. Applying this standard, the court adopted as fact the allegations that Kuykendall was having sexual affairs with three female department employees — Kathy Bibb, Debbie Patrick and Cagie Brown. According to the court, Kuykendall used his management position to secure employment transfers, advancement and benefits for his paramours based upon sexual favors, not merit. “For example, [Mr.] Kuykendall pressured [Ms.] Miller and other employees on the personnel selection committee to agree to transfer [Ms.] Bibb � and promote her to position of correctional counselor, despite the conclusion of the committee that she was not eligible or qualified.” Miller, at *6. On another occasion, when [Ms.] Brown and [Ms.] Miller were applying for the same position, “[Ms.] Brown made it known to [Ms.] Miller that the facility captain promotion belonged to her because of her intimate relationship with [Mr.] Kukyendall, announcing that if she were not awarded the promotion she would ‘take him [Mr. Kuykendall] down’ because she ‘knew every scar on his body.’” Miller, at * 9. According to the court, because of the sexual favoritism shown by Kukyendall to his paramours, other employees who were not sexually involved with Kukyendall were blocked from merit-based advancements. The paramours’ unprecedented pace of promotion caused other employees to ask if they, too, had to engage in sexual relations to be promoted. Miller, at *10. The court found that during the department’s internal affairs investigation into the matter, the investigator “encountered several employees who believed that persons who had sexual affairs with [Mr.] Kuykendall received special employment benefits.” Miller, at *11. In fact, one paramour, Cagie Brown even acknowledged in her deposition, that she had heard widespread rumors that sexual affairs between supervisors and subordinates were common in the department and were widely viewed as a method of advancement. Miller, at *11 and 40. The court also adopted as fact allegations that Kukyendall and Bibb fondled each other in the presence of other employees at work-related social gathering, and that the three paramours “squabbled over him [Mr. Kukyendall], sometimes in emotional scenes witnessed by other employees.” Miller, at *11-12. Moreover, the court assumed as true the allegations that Kuykendall could not or refused to discipline the paramours because of his relationship with them. After Miller complained to Kuykendall about the inappropriateness of his relationships, Brown retaliated against Miller and ultimately physically assaulted Miller and held her captive for two hours. Miller, at *15. Miller continued to complain, but according to the court, “[Mr.] Kuykendall explained there was nothing he could do about the harassment, because of his relationship with [Ms.] Brown … ” Miller, at * 15. PRIMA FACIE CASE Based on the above facts adopted by the court, the court held that the evidence presented was sufficient to establish a prima facie case of sexual harassment. The intermediate appellate court had held that there was no evidentiary basis for plaintiffs’ claims. “[P]laintiffs have not shown a concerted pattern of harassment sufficiently pervasive to have altered the conditions of their employment on the basis of sex. Plaintiffs were not themselves subjected to sexual advances, and were not treated any differently than male employees.” Miller, at *23. The appellate court likewise noted that, “Plaintiffs were not complaining about sexual harassment, but unfairness.” Miller, at *57. The California Supreme Court disagreed. The court said that past California decisions have established that: (1) the state’s prohibition against sexual harassment includes protection from the creation of a work environment that is hostile or abusive on the basis of sex; and (2) such a hostile environment may be created even if the plaintiff is never subjected to sexual advances. [FOOTNOTE 1] EEOC POLICY GUIDANCE The court also relied on an EEOC policy guidance to support the holding that an actionable hostile environment may be created even if the plaintiff never is subjected to sexual advances. The EEOC policy guidance states that isolated instances of sexual favoritism in the workplace toward a paramour do not violate Title VII. However,
[i]f favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII, regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors. Miller, at *33-34.

The EEOC guidance goes on to say, “in these circumstances, a message is implicitly conveyed that the managers view women as ‘sexual playthings,’ thereby creating an atmosphere that is demeaning to women.” Miller, at *33-34. Based on these precedents, the court held that an employee may establish an actionable claim of sexual harassment by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile environment. Miller, at *37-38. The court further held that considering all the circumstances from the perspective of a reasonable person in the plaintiff’s position, the proffered evidence created at least a triable issue of fact as to whether a hostile work environment was created in the workplace, even where the plaintiffs had not been sexually propositioned. Miller, at *38 and 44. The court relied on evidence from the internal affairs investigation that confirmed that the sexual favoritism was widely known and resented by other employees. The court also relied on evidence that several employees believed that engaging in sexual affairs was required to secure advancement. Miller, at *50. The defendants cited to a number of cases that held that isolated preferential treatment of a sexual partner, standing alone, does not constitute sexual discrimination. However, the court rejected the application of those cases to Miller. “Although we do not dispute the principle stated by those cases, we believe the Court of Appeals and defendants err in equating the present case with those cases.” Miller, at *48. The court when on to say,

plaintiffs in the present case alleged far more than a supervisor engaged in an isolated workplace sexual affair and accorded special benefits to a sexual partner. They proffered evidence demonstrating the effect of widespread favoritism on the work environment, namely the creation of an atmosphere that was demeaning to women. Miller, at *48.

THE ‘DECINTIO’ CASE The Miller court stated in a footnote that the 2nd Circuit’s widely cited decision in DeCintio v. Westchester County Medical Center, 807 F2d, 304 (2d Cir. 1986) was distinguishable from the facts presented in Miller. Whether or not DeCintio can fairly be distinguished will undoubtedly be an issue for future courts to decide. In DeCintio, according to the 2nd Circuit, Westchester County Medical Center (WCMC) was in the process of seeking to staff a respiratory therapist in its new Neonatal intensive care unit (ICU). Because the respiratory therapist would have supervisory responsibilities and would be paid a higher salary than other staff respiratory therapists, WCMC created a position for a second “assistant chief of respiratory therapy,” to be assigned to the neonatal ICU. Based on the facts adopted by the court, all applicants for the new position had to be registered with the National Board for Respiratory Care (NBRT). This was a new “special requirement”; registration by the NBRT previously had not been a requirement for the assistant chief position, nor was it required of the head of the respiratory therapy department. DeCintio, 807 F2d at 305. The court said that the plaintiffs, seven male respiratory therapists at WCMC, were not registered by the NBRT and therefore were not qualified to apply for the new position. Instead, Jean Guagenti, a female respiratory therapist, was hired as assistant chief upon the express recommendation of James Ryan, the program administrator of the respiratory therapy department. According to the district court’s finding, Ryan and Guagenti were engaged in an ongoing, consensual, romantic relationship at the time that Guagenti was hired. The court also accepted as fact evidence that Ryan initiated the new special registration requirement as part of a scheme to obtain a position for Guagenti. DeCintio, at 306. Based on the above facts, the court held that plaintiffs’ allegations did not constitute sex discrimination within the meaning of Title VII. MEANING OF ‘SEX’ The court said that the meaning of “sex” for Title VII purposes had traditionally been defined as a preference or disparity based on gender. Past successful Title VII sexual discrimination claims had established “a causal connection between the gender of the individual or class and the resultant preference or disparity.” DeCintio, at 307. In DeCintio, however, plaintiffs’ allegations arose from the fact that an employer gave preferential treatment to his paramour. The court said that such allegations do not constitute gender-based discrimination, since the preference is afforded because of the relationship, not gender. Female employees other than Guagenti suffered the same disparate treatment as the male plaintiffs. According to the court, to recognize plaintiffs’ claims for sex discrimination, the traditional definition of “sex” for Title VII purposes would have to be expanded to include “sexual liaisons” or sexual attractions” in addition to “gender.” The court said there was no justification for expanding the traditional definition so broadly as to include an ongoing, voluntary, romantic engagement. “Such a course, founded on a distortion of the meaning of the word ‘sex’ in the context of Title VII, is both impracticable and unwarranted.” DeCintio, at 308. Plaintiffs attempted to rely on the EEOC’s guidance to support their case, but the court rejected their arguments. According to the court, the EEOC guidance states that unlawful sex discrimination arises only when employment opportunities or benefits are granted because of an individual’s submission to the employer’s sexual advances or requests for sexual favors. “The word ‘submission,’ in this context, clearly involves a lack of consent and implies a necessary element of coercion or harassment.” DeCintio, at 307-308. The court said that plaintiffs in this case did not claim that they or others were forced to submit to Ryan’s sexual advances in order to win promotion. Moreover, the court said, “the EEOC has indicated that sexual relationships between coworkers should not be subject to Title VII scrutiny, so long as they are personal, social relationships.” DeCintio, at 308. PRACTICE POINTERS It remains to be seen whether courts will follow the California Supreme Court’s decision in Miller or if they will continue to apply precedents such as DeCintio to preclude claims of discrimination based on sexual favoritism. However, employers doing business in California, or those employers who may wish to adopt a prophylactic policy to avoid claims of sexual favoritism should review their policies and practices in light of Miller. Employers who are required to or simply wish to follow the legal standards recognized in Miller may draw several important lessons in how they should deal with the issue of sexual favoritism in the workplace. For example, employers who may reasonably have assumed that sexual favoritism always presents an issue of personal preference rather than sex discrimination should recognize that, at least in California, circumstances that are sufficiently severe or pervasive may provide the basis for a cause of action for sex discrimination. Accordingly, when presented with a claim of sex discrimination based on alleged sexual favoritism, employers may consider whether a supervisor’s conduct is alleged to involve more than one alleged paramour. If the conduct is alleged to involve one paramour, even the Miller standard suggests that a claim of discrimination generally will not be established. However, if the claim involves more than one paramour, the employer may wish to consider assessing the extent to which the supervisor’s conduct can be deemed “severe,” “persuasive” or to have interfered with the working conditions or work performance of other employees. For example, are the supervisor’s relationships widely known or observed in the workplace, and do employees have a reasonable basis for believing that their sexual relationships are a criterion for receipt of any job benefits? How an employer chooses to deal with claims of sexual favoritism in the workplace raises potentially difficult or sensitive issues. Many employers have chosen as a matter of policy to take a neutral position with respect to consensual relationships in the workplace on the theory that such relationships are inevitable, and it is not for the employer to become involved in seeking to regulate matters of the heart. By delving into whether claims by allegedly nonfavored employees are “severe” or “pervasive,” employers may be inquiring into matters that may previously have been considered private matters between consenting adults. Despite the adherence to such principles, cases such as Miller may require employers to investigate claims of severe and pervasive sexual favoritism, and to take immediate action to end any sex discrimination that is found to exist. ‘NO DATING’ POLICIES By contrast to employers taking a position of neutrality with respect to personal relationships among employees, some employers have chosen to impose “no dating” policies in the workplace. Such policies may be structured to apply either to all employees, or alternatively to employees who are in a supervisor/subordinate relationship. Of course, a “no dating” policy may mitigate the problem of alleged discrimination based on severe and pervasive “sexual favoritism.” If employees cannot date, there should logically be no instances of sexual favoritism. However, no dating policies have been criticized by some as interfering with personal and private relationships. Accordingly, many employers are reluctant to adopt such policies to avoid harming employee morale. The risk of such harm to employee morale has been supported by a recent survey this year by Vault Inc. which indicates that 58 percent of workers had dated a coworker, an increase from 46 percent two years ago.[FOOTNOTE 2] Whatever policy an employer chooses to adopt with respect to personal relationships among employees, in dealing with claims of severe and pervasive sexual favoritism, employers should consult with human resources professionals and counsel. Jeffrey S. Klein and Nicholas J. Pappas are partners at Weil, Gotshal & Manges, where they practice labor and employment law. Teresa Chin, a law student at the University of Texas School of Law and a summer associate at the firm, assisted in the preparation of this article. ::::FOOTNOTES:::: FN1 Mogilefsky v. Superior Court, 26 Cal. Rptr. 2d 116 (Cal. Ct. App. 1993). FN2 “Love on the Job? What About Your Boss?,” The New York Times, Style Section, Sunday July 24, 2005.

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