But what if the supervisor is having more than one consensual affair? The plaintiffs were two former employees of the Valley State Prison for Women.
In so holding, the court emphasized, among other facts, that an internal investigation revealed that women generally believed that the key to advancement was through sexual conduct.
This was not an isolated case of paramour preference, the court observed.
The EEOC went further and stated that where sexual favoritism is pervasive, it also may create the basis for an “implicit quid pro quo claim.” The rationale is that where there is widespread sexual favoritism, it may communicate a message that the “way for women to get ahead in the workplace is by engaging in sexual conduct or that sexual solicitations are a prerequisite to their fair treatment.” In Miller, the sexual relationships were uncoerced, so the court focused on the issue of widespread sexual favoritism.
If a jury believed the plaintiffs’ allegations to be true, they were sufficient to create a hostile work environment, the court found.
At the new facility, Miller was on a committee to determine whether to promote Paramour 1 to a correctional counselor position at the new facility.
When Paramour 1 was not selected, Miller and others were told that the warden had said to “make it happen.” Paramour 1 ultimately got the promotion and bragged about her power over the warden.
Because of the procedural posture of the case, the court essentially accepted the plaintiffs’ allegations as true.
Here are just some of the allegations that the court considered in upholding summary judgment: Miller was a correctional officer at a state prison.
Has California yet again created new legal rights, significantly expanding the scope of unlawful sexual harassment? In reaching its decision, the state’s highest court did nothing more than apply the Equal Employment Opportunity Commission’s (EEOC) 1990 guidelines on sexual favoritism to egregious facts. Not much, but the challenges of dealing with the “old” are very real, and a zero tolerance policy toward boss-employee bundling is not necessarily the answer to all your problems. However, supervisor later takes adverse action against subordinate for legitimate reasons. Subordinate says, “Yes.” They love each other until they hate each other. Subordinate says, “Yes.” They date until they break up.