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The California Supreme Court’s recent decision in Miller v. Department of Corrections, 05 C.D.O.S. 6268, has been the subject of widespread media coverage, most of it suggesting that the court has significantly broadened sexual harassment law. CNN, for instance, commented that after Miller, “a manager who has affairs with subordinates can create a work climate that constitutes sexual harassment even for uninvolved employees.” Firms with management-oriented employment law practices rushed to warn clients about the dire situation post- Miller, a frontier world where presumably any employee aware of a consensual workplace romance may feel free to file a sexual harassment action, even when not personally harassed or sexually propositioned. Indeed, last week’s Recorder featured an article on Miller that accused the courts of “conscripting employers into a war on sexual immorality.” Has Miller radically altered sexual harassment law? Is the court out of control? We don’t think so. In fact, it has long been the law in California that neither actual sexual activity, nor unwanted sexual advances, nor the conditioning of employment benefits upon submission to such acts are necessary to a cause of action for sexual harassment. Nothing about Miller makes news in this regard. For example, it is certainly not news that a sexual harassment claim may lie in the absence of sexual activity directed toward the plaintiff. In 1993, the court of appeal upheld a female police officer’s sexual harassment claim, where she was subjected not to sexual advances, but to unreasonable and unfair work conditions (including sabotage of her equipment), demeaning rumors, threats of bodily harm and derogatory and condescending remarks because she was a female police officer in a department that didn’t want any female officers. Accardi v. Superior Court. In Officer Accardi’s case, the harassment was not associated with sexual activity whatsoever. The court found her to have suffered discrimination � but also to have suffered sexual harassment: “[T]he creation of a hostile work environment, need not have anything to do with sexual advances.” It is even less newsworthy that a defendant’s “sexual activity” directed toward someone else can create a sufficiently severe and pervasive effect on a plaintiff’s workplace as to create a hostile environment. As far back as 1989, in Fisher v. San Pedro Peninsula Hospital, the court of appeal ruled that the actions of a physician in hugging, kissing, groping and pulling nurses (other than plaintiff) onto his lap could constitute sexual harassment of the plaintiff where plaintiff could show “sufficient facts to establish a nexus between the alleged sexual harassment of others, her observation of that conduct and the work context in which it occurred.” In other words, sexual activity need not be directed toward plaintiff. The question then � as now � is: What is the effect of that activity on the work environment? Nine years ago, the court of appeal anticipated Miller, warning that “a romantic relationship between a supervisor and a subordinate might well be relevant in establishing liability” under a hostile work environment sexual harassment theory. Proskel v. Gattis (1996) 41 Cal.App.4th 1626, 1630. In Proskel, a discreet affair and the allegation of supervisorial favoritism, without more, was found insufficient to sustain the theory. The facts in Miller, however, are something else entirely.
The Miller plaintiffs were female correctional officers at a women’s prison. Their supervisor, the male chief deputy warden, was openly conducting simultaneous affairs with three female subordinates. The evidence as alleged in the complaint included the paramours’ receipt of undeserved promotions (in preference to one of the plaintiffs); fondling and groping of the paramours by the supervisor at work functions; public boasts by the paramours of their influence over the supervisor regarding terms and conditions of employment; paramour threats against co-workers who complained about the affairs; no action taken against the paramours when the threats were reported; widespread morale problems and “hostility among employees” resulting from the affairs and the fallout from the affairs; and a well-known failure of the supervisor to initiate investigation of a paramour arrested for driving under the influence while on the job. The plaintiffs also presented evidence that employees interested in job advancement asked (to use the same language quoted by the court), “What do I have to do, ‘F’ my way to the top?” The paramours “squabbled over” the deputy chief warden on the job in front of plaintiffs “in emotional scenes.” The deputy warden’s “sexual favoritism” “blocked the way to merit-based advancement for plaintiffs.” One plaintiff alleged she was subjected to harassment by a paramour that escalated to physical assault. The paramour was not disciplined. Whatever the standard for “severe and pervasive” effects on the work environment may be, the onerous allegations of Miller pretty obviously meet that standard. The Supreme Court itself noted that its decision in Miller breaks no new ground, citing earlier appellate decisions for the propositions that sexual harassment under a hostile work environment theory does not require sexual conduct, and that a plaintiff’s work environment may be affected not only by conduct directed at herself, but by the witnessed treatment of others: Past California decisions have established that the prohibition against sexual harassment includes protection from a broad range of conduct, ranging 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. (Miller slip opinion at 17, emphasis supplied.) The court met defendants’ contentions that the decision might “inject the courts into relationships that are “private and consensual” by noting that “it is not the relationship, but its effect on the workplace, that is relevant under the applicable legal standard.” Just as a “stray” sexually offensive comment or two will not support a legally sufficient claim of sexual harassment, Miller does not suggest that a discreet affair between supervisor and subordinate will provide just any third-party employee with an actionable claim. It is simply a different scenario for the same question: what was the effect of the supervisor’s sexual conduct on the plaintiff’s work environment? It is certainly not our view that affairs between supervisors and subordinates need not concern employers (and their legal counsel). Such situations have concerned employers and their lawyers for years before Miller. They are tricky. They implicate individuals’ rights to privacy, but are also a context from which a variety of employment claims may emerge. But we’ve all known this for years, haven’t we? We suspect that not many people who actually read the court’s opinion in Miller will be shocked by the court’s conclusion that an actionable sexual harassment case had been presented. Frankly, a contrary conclusion would have been a lot more shocking. Alisa J. Baker and Richard E. Levine are partners in the newly established San Francisco law firm of Levine & Baker (www.levinebakerlaw.com). Baker counsels companies and individuals on compensation-related transactions, including executive agreements, separation matters and equity compensation. Levine is a commercial litigator with a concentration in disputes between employers and employees.

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