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Over the last 100 years, the California Supreme Court has blazed its fair share of legal trails. Fifty years from now, the court’s unanimous July decision in Miller v. Department of Corrections, 36 Cal. 4th 446 (2005), may well be looked back upon as yet another legal watershed originating in California. Miller‘s facts may limit it-and legislatures can be expected to weigh in on the issues it raises as well. But if interpreted expansively in the years to come, its ramifications for the law of the workplace could prove substantial. Miller‘s facts are important and merit detailed description. The case was brought by two California Department of Corrections employees, Edna Miller and Frances Mackey. Both women alleged that they were subjected to discrimination and harassment as a result of warden Lewis Kuykendall’s consensual affairs with female colleagues other than themselves. Miller began working for the department in 1983 as a correctional officer. As summarized by the Supreme Court, the record showed that in 1994, while employed at the Central California Women’s Facility, Miller learned through the grapevine that chief deputy warden Kuykendall was having sexual affairs with three female subordinates-Kathy Bibb, his secretary; Debbie Patrick, an associate warden; and Cagie Brown, another prison employee. Some of these women, Brown especially, boasted to Miller of their influence over Kuykendall. Lorded relationship In 1995, Miller was transferred to Valley State Prison for Women, where Kuykendall had recently begun serving as warden. Shortly after arriving at Valley State, Kuykendall began a campaign that eventually resulted in all three of his paramours also being transferred there. While at Valley State, Kuykendall gave his lovers special treatment: Bibb’s transfer (and a concomitant promotion) came after Kuykendall told the interviewing panel to “make it happen”; Patrick reported directly to Kuykendall instead of to her immediate superior; and (with the help of Kuykendall) Brown was selected over Miller for two promotions to “facility captain” despite Miller’s superior qualifications, education and experience. (Brown, who claimed to know “every scar” on Kuykendall’s body, had announced to Miller that Kuykendall would have to select her over Miller for the captain position since she would otherwise “take him down.”) Miller’s troubles worsened when chief deputy warden Vicky Yamamoto, who was rumored to be having an affair with Brown, arrived. In 1997, Miller telephoned Brown to confront her about her relationship with Kuykendall and to complain that she and Yamamoto were undermining her authority. Brown acknowledged such mistreatment but told Miller that Kuykendall would do nothing to stop it. The following day, Brown entered Miller’s office, accused her of taping their conversation, physically assaulted Miller and held her captive for two hours. Miller reported the assault to Kuykendall, who did nothing. In 1998, Miller complained again to Kuykendall, informing him that she planned to file a harassment complaint. Kuykendall replied that there was nothing he could do about Brown and Yamamoto because of his relationship with Brown. Kuykendall went on to complain that Brown was untrustworthy and said that he “should have chosen [Miller],” a statement Miller thought meant “he should have chosen me to have a relationship with.” In late 1998, the department began an internal investigation of Kuykendall, Brown and Yamamoto. Although Miller was assured that her interview would be kept confidential, after Brown learned of Miller’s participation in the investigation, Kuykendall rescinded accommodations Miller had been granted for sarcoidosis, a condition that impaired her mobility. Claiming stress, Miller resigned in August 1998. Miller’s co-plaintiff, Frances Mackey, had joined the Department of Corrections in 1975 and transferred to Valley State in 1996 as a records manager. While interviewing for her new position, Mackey informed Kuykendall that she wished to become a corrections counselor. Kuykendall responded that if she improved the prison’s records office she would be promoted. He promised she would continue to receive “inmate pay,” a premium given to employees who directly handle inmates. Mackey became aware of Kuykendall’s affairs with Bibb, Patrick and Brown. In 1997, Brown suspected Mackey had complained about her affair with Kuykendall and began to subject Mackey to verbal abuse. Shortly thereafter, Mackey’s inmate pay was withdrawn. Throughout 1997, although Brown continued to impede Mackey’s ability to perform her duties and to demean her in front of other employees, Kuykendall did nothing. Mackey cooperated with the investigation of Kuykendall, Brown and Yamamoto. Like Miller, Mackey was assured that her statements would be kept confidential, but Brown and Kuykendall learned of her involvement in the investigation as well. Kuykendall subsequently reduced Mackey’s responsibilities and prevented her from receiving her promised promotion to correctional counselor. Meanwhile, Brown repeatedly interrogated Mackey about her statements to Office of Internal Affairs investigators. Eventually, Mackey took a six-month leave of absence. Upon returning to work, Mackey was demoted, and a few months later she resigned as well. Ultimately, as a result of the internal affairs investigation, Kuykendall retired, Yamamoto was transferred and demoted and Brown resigned with disciplinary proceedings pending. In June 1999, Miller and Mackey filed suit against the Department of Corrections. Finding that the undisputed facts failed to establish any violation of the California Fair Employment and Housing Act, in August 2001, the trial court dismissed Miller’s and Mackey’s statutory claims of sex discrimination, harassment and retaliation. In early 2003, reasoning that the behavior of a supervisor who grants favorable employment opportunities to individuals with whom the supervisor is having sexual affairs does not constitute sexual harassment of nonfavored employees (nonfavored employees of both genders being equally disadvantaged) the California Court of Appeal affirmed the trial court. Employees as ‘playthings’ The California Supreme Court granted review, and in July 2005 reversed the state Court of Appeal. While the justices agreed that “an isolated instance” of supervisory favoritism toward an employee with whom the supervisor was conducting a consensual affair ordinarily would not constitute sexual harassment, it found that when sexual favoritism is “sufficiently widespread” in the workplace, it can “create an actionable hostile work environment” by conveying the demeaning message to employees that they are viewed by management as “sexual playthings”-and that the way to get ahead is to engage in sexual conduct with supervisors or managers. The lower courts erred, in the Supreme Court’s view, by refusing to let a jury consider the plaintiffs’ claims. In so finding, the court liberally relied on a Jan. 12, 1990, Equal Employment Opportunity Commission (EEOC) memorandum, “Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism.” In that document, the federal agency had stated that although isolated instances of workplace favoritism toward a paramour did not violate federal law, a workplace in which sexual favoritism was so widespread that the implicit message was that employees were sexual “playthings” for the boss could constitute an actionable hostile environment. The California Supreme Court essentially found this guidance (authored during Clarence Thomas’ tenure) persuasive, and easily distinguished the single other California case that had considered and rejected such a claim- Proksel v. Gattis, 41 Cal. App. 4th 1626 (1996)-since Proksel had only involved a single affair, albeit one carried on in a small office. In its policy memorandum, the EEOC had in turn cited, among other cases, Broderick v. Ruder, 685 F. Supp. 1269 (D.D.C. 1988), a bench decision out of the U.S. District Court for the District of Columbia. In Broderick, a female Securities and Exchange Commission attorney had prevailed on a hostile environment sex harassment and retaliation claim where the evidence included two of the plaintiff’s male supervisors openly carrying on liaisons with female secretaries. Additionally, one of the plaintiff’s male supervisors was noticeably attracted to (and frequently socialized outside the office with) a female attorney colleague whose career advanced more rapidly than the plaintiff’s. (Significantly, however, in Broderick one of the plaintiff’s supervisors (the head of her division) also had drunkenly untied her sweater and kissed her at an office retreat and made sexually suggestive remarks.) Nonharass harassment While, as the Miller court noted, it was settled California law that bystanders to harassment could, when they had personally witnessed the unwelcome behavior, also prevail on a claim, the plaintiff’s claims in such cases were essentially parasitic to another actual or potential claim. There was always some unwilling recipient of sexualized behavior-usually a lead plaintiff. Miller was the first published California decision finding a claim viable without evidence that any individual-whether a third-party colleague or the plaintiff herself, as in Broderick-also was directly subjected to unwelcome sexual behavior. While the theoretical possibility of environmental “widespread favoritism” claims has long been acknowledged by the federal courts of appeal, these same courts had also evinced considerable hostility to them, having yet to issue a single opinion in which complained-of consensual favoritism was sufficiently widespread to constitute a hostile environment. See, for example, Drinkwater v. Union Carbide Co., 904 F.2d 853 (3d Cir. 1990). Moreover, the only other state supreme court that had considered similar claims found them viable only when the supervisor-supervisee sexual relationship was coerced. Erickson v. Marsh & McLennan Co. Inc., 569 A.2d 793 (1990). Miller seems to open the door, however, for a whole new class of plaintiffs to allege (and for courts to allow juries to decide) that a workplace is permeated with widespread sexual favoritism as a result of consensual sexual behavior among colleagues. When surveyed on the subject, more than half of respondents admitted to having become involved in a workplace romance at one time or another. Clearly, Miller significantly raises the risk-management implications of any kind of sexual “fraternization” between supervisory and nonsupervisory employees. Moreover, although Miller involved a male supervisor and subordinates of the opposite sex, no great deal of imagination is required for plaintiffs’ attorneys to argue that its holding is equally applicable in cases when a supervisor is female, or a subordinate paramour of the same sex. Ironically, Miller eventually could have the effect of leveling the workplace playing field somewhat for the “attractively impaired,” as supervisors more aggressively police their own behavior for signs of (even subconscious) favoritism based on appearance. This is not to say that Los Angeles’ service industries will be clearing their ranks of aspiring actors anytime soon. However, Miller raises as many questions as it answers-and in many respects will leave California employers stuck between a rock and the proverbial hard spot. Miller militates in favor of aggressive employer policies against employees’ engaging in consensual relationships, particularly when obvious in the workplace. At the same time, the California Labor Code prohibits discrimination for legal off-duty activity-and private employers in California are also subject to constitutional invasion of privacy claims, even in the absence of state action. Clearly, California employers who have not yet adopted a nonfraternization policy will proceed from here on at their own risk. While it may go too far for employers to prohibit the formation of consensual relationships in the absence of a supervisor-supervisee relationship, it increasingly will become critically important for employers to regulate (or even forbid entirely) any kind of supervisor-supervisee sexual relationships. California employers may also add language to sexual harassment policies that makes clear that harassment can occur when supervisors favor colleagues due to consensual sexual involvement. It is hard to know where Miller will take the California workplace. One thing is certain, however: Overt supervisor-supervisee sexual relationships in the California workplace now are very high-risk adventures. John H. Douglas is a partner in the San Francisco office of Foley & Lardner. A member of the labor and employment, appellate and general commercial litigation practice groups, his practice focuses on union, employment, wage and hour, trade secret and competition issues. He can be reached at [email protected].

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