Affairs at Work Subject to Suits

Workers who lose promotions to colleagues who are sleeping with the boss can sue their employers for sexual harassment, the California Supreme Court ruled Monday.

In a significant expansion of sexual harassment law in California, the state high court unanimously decided that any worker, male or female, could suffer sexual harassment even if his or her boss never asked for sexual favors or made inappropriate advances.

Previously, only the worker who had the affair or received unwanted sexual attention could prevail in California.

“Widespread favoritism based upon consensual sexual affairs may imbue the workplace with an atmosphere that is demeaning to women because a message is conveyed that managers view women as ‘sexual playthings,’ ” Chief Justice Ronald M. George wrote for the court.

In such a situation, other employees may believe “that the way required to secure advancement is to engage in sexual conduct with managers,” he added.

Shannon B. Nakabayashi, who represented California employers in the case, said the decision would result in employers monitoring office romances, even those between employees of the same rank, for fear of being sued for tolerating a sexually charged work environment.

“Unfortunately, employers will have to pay a lot more attention to these things,” said Nakabayashi, who represented the Employers Group.

The decision, which came in the case of a California prison warden who was accused of having multiple affairs with employees, overturned two lower court rulings and was at odds with most decisions by courts in other states that have considered similar claims, employment lawyers said.

A spokesman for Atty. Gen. Bill Lockyer said that the ruling marked a significant change and noted that California employers will now be more vulnerable to employment suits.

“What the decision means for employers now is that merely having a nepotism policy in place is not enough to protect yourself from liability,” said the spokesman, Nathan Barankin.

“It is a very strong opinion in favor of protecting women who are not directly harassed but indeed are disadvantaged by the fact there is favoritism in the office,” said William C. Quackenbush, an employment law expert.

He said situations involving sexual favoritism arise frequently in the workplace, particularly in large companies. “The courts that have considered it have previously rejected this concept in California, and most federal courts likewise have rejected paramour favoritism as being a basis for a claim,” he said.

The ruling is the result of a sexual harassment lawsuit, which has not yet been tried, against the state’s Department of Corrections. Edna Miller and Frances Mackey charged that a prison warden, Lewis Kuykendall, who was married, had sexual affairs with three other employees and gave them preferential job treatment. The two women said they suffered retaliation when they complained.

The Supreme Court ruling settles one of the issues raised by the sexual harassment suit, but others must be considered by an appellate court before the case can go to trial.

The affairs occurred from 1991 to 1998, when Kuykendall was the chief deputy warden of the Central California Women’s Facility and later the warden of the Valley State Prison for Women, both in Chowchilla. The court said the affairs were concurrent.

Mackey, who has since died, and Miller presented evidence that Kuykendall’s favoritism to his girlfriends impeded their job advancement. They also said his behavior opened them to harassment by one of the girlfriends. Employees often had to endure jealous and emotional squabbling among the girlfriends over Kuykendall, the court said.

Two of the girlfriends bragged to others about their power over Kuykendall, and he displayed “indiscreet behavior” at a number of work-related gatherings, the court said.

In one incident, Miller competed with Cagie Brown, one of the girlfriends, for a promotion, the court said. Brown told Miller that Kuykendall would have to give her the job or she would “take him down” by naming “every scar on his body,” the court said.

Brown received the promotion even though Miller had a higher rank, superior education and more experience, according to the court.

Miller also said she ran into problems with a female deputy warden who she believed was engaged in a relationship with Brown “that was more than platonic,” the court said. The deputy warden, Vicky Yamamoto, and Brown frequently countermanded Miller’s orders, undermined her authority, imposed additional duties and threatened reprisals if she reported problems, the court said.

When she complained to Brown about her affair with Kuykendall and about the mistreatment by Brown and Yamamoto, Brown assaulted Miller and held her captive in her office for two hours, the court said.

“Kuykendall failed to investigate the assault after Miller complained to him,” the court said.

“The evidence of such favoritism in the present case includes admissions by the participants concerning the nature of the relationships, boasting by the favored women, eyewitness accounts of incidents of public fondling, repeated promotion despite lack of qualifications and Kuykendall’s admission he could not control Brown because of his sexual relationship with her,” George wrote.

An internal affairs investigation by the Department of Corrections confirmed that Kuykendall, who retired under fire, engaged in sexual favoritism and that it was widely known and resented by other employees, the court said.

Despite employers’ fears, California companies will not be vulnerable under the ruling because of “mere office gossip,” the court said. Evidence of widespread sexual favoritism will be required to prevail in a suit, the court said.

“An isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment,” George wrote.

Barbara Lawless, who represented the alleged victims in the case, said the decision could permit male as well as female employees to sue when the boss is showing favoritism to sexual partners.

“If you have to sleep with the boss to get ahead, men have causes of action too,” Lawless said.

She said it was unfair in the past that only the people who had slept with the boss could sue for sexual harassment.

“It vindicates women who sit there and watch their sisters in the workplace have affairs,” Lawless said.