THE STATE OF “AFFAIRS”
IN THE WORKPLACE: Sexual Favoritism

By Gerda Govine, Ed.D.

On July 18, 2005 the Supreme Court of California concluded in Edna Miller et al, v. Department of Corrections et al. that “. . . although 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, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as “sexual playthings” or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or the management.

The court resolved: “We do not believe that defendants’ concerns about regulating personal relationships are well founded, because it is not the relationship, but its effect on the workplace that is relevant. . . specifically FEHA recognizes that sexual harassment occurs when a sexual relationship between a supervisor and a subordinate is based upon an asserted quid pro quo.”

Plaintiffs, Edna Miller and Frances Mackey, were aware that their ultimate supervisor, Chief deputy warden Lewis Kuykendall engaged in three concurrent sexual affairs with subordinates who he subsequently promoted to supervisory positions at two different facilities, the Central California Women’s Facility (CCWF), and Valley State Prison for Women (VSPW), over a seven-year period. Evidence showed that Kuykendall “promised and granted unwarranted and unfair employment benefits to the three women.” One of the three women used her power to abuse employees who complained concerning the affair and when these employees complained, they were subjected to retaliation, for example, Miller’s disability accommodations were withdrawn after she was interviewed during an internal affairs investigation. A second woman who was one of Kuykendall’s sexual partners acknowledged that “affairs between supervisors and subordinates were common in the Department and were widely viewed as a method of advancement.” A third was promoted even though she lacked the qualifications. Miller believed that during the same time, that her knowledge about Kuykendall’s sexual relationships, and the fact that she was not one of his sexual partners, was the basis for denial of a promotional opportunity.

Miller and Mackey were subjected to rampant harassment based on retaliation by one of the sexual partners, which escalated to physical assault for one of the plaintiffs. Retaliation for Miller and Mackey included a litany of unrelenting harassment activities perpetuated by the three women and Kuykendall. For example, (1) loss of work responsibilities, (2) degrading comments in the presence of other employees; (3) loss of a pay raise and disability accommodation; (4) false imprisonment; (5) reassignment to menial tasks; (6) verbal abuse and threats; and (7) refusal to protect Miller and Mackey.

Sexual favoritism was examined by the Equal Employment Opportunity Commission (EEOC) in their January 12, 1990 statement entitled “Policy Guidance on Employer Liability under Title VII for Sexual Favoritism.” The Policy is relevant in the Miller case because it:“ . . .discusses sexual favoritism that is more than isolated and that is based upon consensual affairs: ‘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 in violation of Title VII 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. . . both men and women who find this offensive can establish a violation if the conduct is ‘sufficiently severe or pervasive to alter the condition of their employment and create an abusive working environment.’”

What steps take can human resource professionals take to address the findings of the Supreme Court regarding “Sexual Favoritism” (engaging in affairs in the workplace)?

Action Steps

• Review and become familiar with the findings of the California Supreme Court decision, go to web link: http://www.courtinfo.ca.gov/opinions/.

• Discuss with legal counsel.

• Inform all employees in writing ASAP.

• Expand Assembly Bill 1825 (passed in 2004) sexual harassment prevention training for supervisors to include “Sexual Favoritism in the Workplace.”

• Include “Sexual Favoritism” as part of your sexual harassment training for non-supervisory employees.

• Add “Sexual Favoritism in the Workplace” to your Employee Handbook.

• Utilize a “confidential” way to answer questions and concerns about “Sexual Favoritism in the Workplace.”

• Include rights and responsibilities of employees and employers in all training and written materials about ”Sexual Favoritism in the Workplace or any other type of training.

• Protect any employee from retaliation who makes a complaint about “Sexual Favoritism in the Workplace” or any other type of complaint.

• Make sure that there are “no sacred cows.” Any employee who engages in “Sexual Favoritism” must be dealt with—no one is immune.

• Note that “Sexual Favoritism in the Workplace can impact both women and men.

• Be aware that ”Sexual Favoritism in the Workplace” is a form of sex discrimination and impacts two basic types of unlawful sexual harassment: “quid pro quo” and “hostile work environment.”

Caution: “Sexual Favoritism in the Workplace” is not about regulating personal relations, but being aware of the effect of such relationships in the workplace and its impact on employees. This is extremely important to stress with all employees so that the possibility of a “chilling effect” is minimized.

Dr. Gerda Govine, is a trainer, expert witness, litigation consultant, mediator, researcher, writer and public speaker in employment discrimination: gender, race, age, and religion. She currently provides AB 1825 training and is a former presenter at PIHRA’s Conference, contributor to PIHRASCOPE, and a member of PIHRA District 4. Dr. Govine celebrates 20 years in business and can be reached at info@govineconsults.com, www.govineconsults.com or (626) 564-0502.

12/12/05