July 18, 2005 Favoritism Based On Consensual Sexual Relationships May Constitute Unlawful Sexual Harassment Under California Law


Under California’s Fair Employment and Housing Act (FEHA), which prohibits sexual harassment in the workplace, an isolated instance of favoritism on the part of a supervisor toward a female employee with whom he is having a consensual sexual affair ordinarily will not constitute sexual harassment. But in a ruling published yesterday (Miller v. Department of Corrections), the California Supreme Court held that widespread sexual favoritism may constitute sexual harassment in violation of the FEHA.


At one California prison, the warden was doing more than just taking care of the inmates. Over a period of several years, this particular warden had sexual affairs with at least three subordinate female employees. Because of these relationships, the warden promised and granted these three women unwarranted favorable treatment, including special assignments, preferential promotions, and other work privileges. When other female employees complained about the favorable treatment, the warden refused to intervene and retaliated against the complaining employees. In response, two female former employees sued the California Department of Corrections claiming, among other things, that the warden’s favoritism constituted sexual harassment in violation of the FEHA.

Both the trial court and the Court of Appeal ruled that a supervisor who grants favorable treatment to a person with whom he is having a sexual affair does not, without more, commit sexual harassment toward other, non-favored female employees. The Court of Appeal further explained that, because the plaintiffs were not themselves subjected to sexual advances and were basically in the same position as their similarly non-favored male co-workers, the warden’s conduct was not actionable sexual harassment because it wasn’t based on their gender.

The California Supreme Court, however, disagreed with the trial court and Court of Appeal. After surveying the landscape of sexual harassment law, the Supreme Court concluded that an employee may establish a claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism, in itself, was so severe or pervasive that it altered working conditions and created a hostile work environment. As the Supreme Court explained, widespread favoritism based on consensual affairs may fill the workplace with an atmosphere that is demeaning to women because a message is conveyed that managers view women as sexual playthings or that sexual conduct with managers is required to secure advancement. Such an atmosphere, even without the presence of unwelcome sexual propositions or conduct directed at a particular employee, may be sufficient to constitute sexual harassment in violation of the FEHA.

What this Means

This case changes the sexual harassment landscape. Before, a sexual harassment plaintiff generally had to be a direct victim of harassment. Now, there is a new breed of claim — “paramour harassment” — that could allow both men and women to bring claims when a supervisor engages in conspicuous but consensual affairs with co-workers.

Accordingly, employers should do two things: (1) be sensitive and alert to “paramour” harassment claims and promptly investigate any complaints of favoritism in the workplace; and (2) re-evaluate existing policies and consider implementing policies regarding workplace relationships, particularly between any employees within a supervisory chain, in order to avoid potential harassment claims.

This E-Update was authored by Joe Connaughton and Mike Minguet. For more information, please contact Mr. Connaughton, Mr. Minguet or any Paul, Plevin attorney at 619-237-5200.



Paul, Plevin has created a training program that is fully compliant with California's new law requiring sexual harassment training for all supervisors. For more information on this program, click here.