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Sleeping one’s way to the top got more complicated on Monday as the California Supreme Court held that pervasive sexual favoritism could constitute workplace discrimination. Ruling in a case that involved what they called “an outrageous campaign of harassment,” the court ruled unanimously 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.” The decision comes out of a case that has all the tawdry elements of a cheap, made-for-TV movie. Edna Miller and Frances Mackey, two former employees of the state Department of Corrections, 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. The affairs — documented in a subsequent internal investigation — began at the Central California Women’s Facility and continued when all were transferred to the Valley State Prison for Women. The institutions are three miles apart in Chowchilla. Miller, who resigned in 1998 after 15 years with the state, and Mackey, who left a year later after 25 years, claimed they were passed up for promotions, which went instead to Kuykendall’s less-experienced paramours. On one occasion, interviewers, including Miller, who were considering a promotion for secretary Kathy Bibb, were told to “make it happen,” while Cagie Brown — who would later be promoted to associate warden — told Miller she would get a higher job because she knew “every scar” on Kuykendall’s body and would “take him down” if the position went to someone else. Miller and Mackey also claimed that they were subjected to retaliation whenever they complained about the affairs, even when cooperating with the internal investigation. 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 two women’s suit claimed that the actions of the warden and his mistresses violated the state’s Fair Employment and Housing Act. A trial court judge tossed the suit on summary judgment, and Sacramento’s 3rd District Court of Appeal 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 disagreed, noting 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,” George wrote, “may be created even if the plaintiff never is subjected to sexual advances.” He said that Miller and Mackey — the latter died in 2003 and was replaced in the suit by her son, Sterling Odom — had established a prima facie case of discrimination that should have been put before a jury. “Plaintiffs in the present case alleged far more than that a supervisor engaged in an isolated workplace sexual affair and accorded special benefits to a sexual partner,” George wrote. “They 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. Neither Kentfield solo practitioner Daniel Smith, who represented the women on appeal, nor Sacramento-based Deputy Attorney General David Neill, who defended the Department of Corrections, could be reached for comment Monday. Nathan Barankin, spokesman for the AG’s office, said the ruling is a warning to employers that it “is no longer enough to have an anti-nepotism policy. They must do more to make sure that a hostile work environment is not created in the workplace by virtue of consensual sexual relationships amongst employees.” The ruling is Miller v. Department of Corrections, 05 C.D.O.S. 6268.

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