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COPYRIGHT 2005 Aspen Publishers, Inc.
Did a recent California Supreme Court ruling open the floodgates for sexual harassment lawsuits? The authors argue that it did not, and that, in fact, the opinion actually may help employers.
The California Supreme Court's recent opinion in Miller v. Department of Corrections, holding that an employee can state a claim for sexual harassment against his or her employer under the California Fair Employment and Housing Act (FEHA) by alleging widespread "sexual favoritism" in the workplace, caught the public's attention and caused a surprisingly dramatic response from the news media. Headlines warned that the Supreme Court has "opened the floodgates" for sexual harassment suits and "dramatically increased" the potential breadth of sexual harassment law. (1)
But the court's recognition of sexual favoritism as a basis for harassment liability comes as no surprise to those who have been following sexual harassment and discrimination law in the California trial and appellate courts. From a legal standpoint, the Miller decision does little more than reaffirm settled principles of state jurisprudence. And from a practical standpoint, the Miller decision may end up helping employers rather than hurting them by clarifying how sex discrimination in the workplace should be prevented and rectified.
THE ALLEGED SEXUAL FAVORITISM IN THE MILLER CASE
The two female plaintiffs in Miller worked at the Valley State Prison for Women. They alleged that Lewis Kuykendall, the chief deputy prison warden, was having sexual affairs with at least three female employees. The affairs were common knowledge among prison employees, mostly because the women involved with Kuykendall openly squabbled over their relationships and publicly expressed their jealousy. The warden made little or no effort to conceal these relationships and was observed on several occasions flirting, fondling, and groping female employees. Plaintiffs also presented substantial evidence that Kuykendall's paramours received favorable treatment, including fast-track promotions, transfers to better work positions, and virtual immunity from discipline.
Most of plaintiff Miller's allegations concerned the relationship between her co-worker, Cagie Brown, and Kuykendall. When Miller and Brown were both competing for a promotion, Brown bragged to Miller about her affair with the warden, her "power over him," and her intent to use this power to extract benefits from him. She indicated that Kuykendall would have to give her the promotion because she knew "every scar on his body." (2) Brown received the promotion. Miller, as well as other prison employees, attributed Brown's promotion to her sexual relationship with Kuykendall. Later, Brown was elevated to associate warden, and became Miller's direct supervisor.
After Miller complained about the unequal treatment she and other employees were receiving as a result of Kuykendall's affairs with his subordinates, Brown began to undermine Miller's authority, reduce her job responsibilities, and unduly criticize her work. When Miller confronted Brown by telephone, Brown admitted that Miller had suffered from unjust abuse, but remarked that neither she nor Kuykendall would do anything to rectify the situation. Brown later confronted Miller and accused her of recording their telephone conversation. Brown then physically assaulted Miller and falsely imprisoned her in her office.
When Miller complained about the incident to Kuykendall, he failed to investigate the assault or discipline Brown. Over the next several months, Miller endured further verbal harassment from Brown. Only after Miller complained to Kuykendall's superior officer did an investigation begin. As a result of the investigation, Kuykendall retired and...
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