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Appellate justices in Sacramento shocked women three months ago by rejecting sexual harassment claims by two women whose boss blatantly promoted females who slept with him. On Wednesday, the California Supreme Court voted unanimously to review the ruling — so while the high court won’t necessarily overturn the lower court, justices certainly want to take a much closer look at the situation. Mackey v. Department of Corrections, S114097, began when Frances Mackey and Edna Miller, both former employees of the Chowchilla, Calif.-based Valley State Prison for Women, sued the state Department of Corrections for sexual harassment under the state’s Fair Employment and Housing Act, claiming that then-Warden Lewis Kuykendall promoted female underlings with whom he had affairs. Those women, in turn, boasted about their influence over Kuykendall and mistreated Mackey and Miller. The 3rd District Court of Appeal in January told the two they had no case, that they “were not complaining about sexual harassment, but unfairness.” That, the court held, is not a protected activity under FEHA. “Neither Miller nor Mackey,” Justice Harry Hull Jr. wrote for the unanimous court, “complained that the affairs and related conduct created an atmosphere whereby they were being judged on their sexuality, rather than on merit.” Rather, he held, the two women’s complaints “concerned the unfairness of promotions and other benefits given to paramours and the resulting mistreatment of them by those paramours.” In her successful petition for review, Lawless & Lawless partner Barbara Lawless, who represents Mackey, argued that the 3rd District’s ruling “radically departed” from the 4th District’s 1996 ruling in Proksel v. Gattis, 41 Cal.App.4th 1626. “According to Proksel, if sexual affairs in the workplace create a hostile work environment, there exists a FEHA violation,” she wrote. “The Mackey court,” Lawless wrote, “ignored the portion of Proksel recognizing theories of sexual favoritism in relation to sex harassment.” Andrea Carlise, president of California Women Lawyers, expressed shock at the ruling when it was first released. “Underlying this case,” the Carlise & Carlise partner said then, “is the message that job benefits are tied to acquiescence [to] sexual advances.” In her petition, Lawless asked the justices to address some pointed scenarios under the state’s anti-discrimination law. One example: “When the highest level male manager engages in numerous romantic affairs with subordinate female employees, and repeatedly promotes his paramours over more qualified candidates, can a more qualified candidate who was not promoted state a claim for sex discrimination?” And for another: “When the highest level male manager’s paramour assaults, batters and harasses subordinates to keep them quiet about her sexual affair and improper promotions, can a subordinate state a claim for hostile work environment in violation of FEHA?” Oral arguments, which won’t be set for a while, should be interesting.

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