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Many champions of civil rights disclaim the intent to “legislate morality.” Yet that is often the practical effect of our civil rights laws. Whether this is a good thing or a bad thing is a subject for another day. The point here is that laws designed simply to ban disparate treatment of men and women have evolved into bans on many forms of indecent behavior in the workplace, including pornographic displays, vulgar language, dirty jokes and notorious sexual affairs involving senior managers, even when this behavior does not necessarily discriminate on the basis of gender. What began as a ban on workplace sex discrimination has morphed into a ban on workplace sex. Sexual harassment law has broken loose from its moorings. As originally formulated, sexual harassment was a special form of sex discrimination, in which a male supervisor was treating a woman in a way that he would never treat a man. Even now, the Fair Employment and Housing Act does not bar “sexual harassment” generally but rather bars harassment “because of sex,” showing that the crux of the matter is still disparate treatment of men and women. Indeed, the U.S. Supreme Court has explained that the “critical issue” in a sexual harassment case is “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed,” and has cautioned that sex harassment laws are not intended to create a “civility code.” Oncale v. Sundower Offshore Services, Inc., 523 U.S. 75, 80, 81 (1998). The California Supreme Court ignored this wisdom last month when it recognized a claim for sexual harassment without any evidence that the plaintiffs had been subjected to disparate treatment on the basis of their sex. In Miller v. Department of Corrections, 05 C.D.O.S. 6268, the court permitted two women to sue under the FEHA on the basis that their boss had created a sexually hostile work environment by giving unwarranted favoritism to his female lovers. Neither woman claimed that she had been treated worse than men in the workplace or that she had been treated badly because she was a woman. Neither woman received an unwelcome sexual advance, and no man had directed any hostile conduct at her. Rather, the women were “sexually harassed” only in the sense that each was offended by other women who obtained preferential treatment through sexual cooperation with the boss. The Court of Appeal had rejected the women’s claim, noting that the employment laws do not mandate civility or fairness, and that favoritism of the boss’s lovers affected male and female employees alike. This judicial result of “no sex discrimination = no sex harassment” comported nicely with the many judicial decisions recognizing that sexual favoritism and other forms of nepotism might be unfair, but certainly are not examples of unlawful discrimination, as they entail no employment action taken on the basis of the plaintiff’s gender. In departing from this line of authority, the Miller court contended that it was merely following federal law. Actually, however, the court uncritically adopted the litigation position of the Equal Employment Opportunity Commission, as memorialized in a 1990 policy guidance. The litigation theory advocated in this policy guidance is that a workplace environment becomes actionable where sexual favoritism is “sufficiently widespread” to convey the “message” that management views women as “sexual playthings” or that the way to get ahead is to sleep with the boss. The EEOC reasons that this workplace environment is sexually hostile both to women and men. Given the U.S. Supreme Court’s insistence that sexual harassment is simply a form of sex discrimination, it is no wonder that — until now — no appellate court had squarely adopted this EEOC litigation position. Although the Miller court apparently thought it was following federal legal authority, it did not do so in adopting the 1990 EEOC policy guidance, for that guidance is not federal law. The court thus erred in stating that it was following the lead of the U.S. Supreme Court in Meritor Savings Bank v. Vinson, 477 U.S. 57, 64-65 (1986), which relied on EEOC “guidelines.” The 1980 EEOC Guidelines cited by Meritor were duly promulgated interpretative regulations, codified at 29 C.F.R. § 1604.11, while the pro-plaintiff commentary in the 1990 policy guidance, by contrast, is essentially the EEOC’s litigation position, adopted without the benefit of the notice-and-comment process required by administrative rule-making. The California Supreme Court is aware of this distinction. In Tidewater Marine Western, Inc. v. Bradshaw, 14 Cal. 4th 557 (1996), the court refused to follow “underground regulations” — a legal interpretation that a California state agency issued without following formal administrative procedures. After thus conflating duly promulgated interpretative regulations with the litigation position of an agency’s employee-advocacy arm, the Miller court used the EEOC’s “standards and reasoning” as “appropriate guidelines” in interpreting the FEHA. The court quoted, with evident approval, the EEOC lawyers’ ambitious agenda for creating employer liability: “If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment — regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors. 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.” The Miller court thus reasoned “that even in the absence of coercive behavior, certain conduct creates a work atmosphere so demeaning to women that it constitutes an actionable hostile work environment.” The Miller decision continues a legislative and judicial process of conscripting employers into a war on sexual immorality. By making employers liable for perpetrating or permitting implicit “messages” that are “demeaning” to women, Miller and decisions of its ilk encourage employers to continue to stamp out what, in another age, was called “sinful” behavior — showing dirty pictures, telling dirty jokes, using vulgar language, sharing sexual rumor or gossip, engaging in sexual horseplay among co-workers, and (coming now to Miller itself) carrying on sexual affairs involving managers. The statutory tort of “sexually hostile work environment” now has a new variant — “widespread sexual favoritism.” The vagueness of the theory, and the ease with which it can be pleaded, give California employees fresh encouragement to explore the adage that the life unlitigated is not worth living. The result will be a workplace that is more polite and less sexual, if more sterile and less fun. These may be good things or bad things, but they certainly bring us several steps away from banning employment discrimination on the basis of gender. The Miller decision cannot be a good portent for the employer defendant in Lyle v. Warner Brothers Television Productions, a case still pending before the California Supreme Court, which considers whether a female member of a TV script-writing team could be sexually harassed by vulgar sexual language used in her presence, but not directed personally at her, during the team’s discussions of potential script material. After Miller, it seems doubtful that the California Supreme Court would pass up a chance to promote further litigation against sexual conduct in the workplace, on the ground that it could send a “demeaning message” to women. David Kadue and Thomas Kaufman are partners in the labor and employment practice group at Seyfarth Shaw in Los Angeles. Kadue’s practice includes representing management in litigation of workplace harassment, wrongful termination and employment discrimination claims and advising on employment contracts, policies, handbooks and investigations of alleged employee misconduct. Kaufman defends employers in discrimination and wrongful termination actions and class actions premised on labor code violations.

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