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 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.


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.


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.


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.


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.