In Miller v. Department of Corrections,2 the plaintiffs were two former employees at the Valley State Prison for Women. The plaintiffs claimed that the prison warden had sexual affairs with numerous female employees, that the employees involved with the warden flaunted their affairs and were treated more favorably than those (including plaintiffs) with whom he was not having a sexual affair, and that they suffered from retaliation by the warden and his paramours when they complained. The alleged unlawful conduct included physical assault, false imprisonment, stalking, withdrawal of a physical disability accommodation, denial of promotions, reduction of responsibilities, loss of supplemental "inmate pay," demotion, verbal abuse and humiliation. All of the plaintiffs' complaints to the warden and other prison representatives either went unanswered or resulted in additional retaliatory acts.
The Miller plaintiffs claimed that this conduct constituted sexual harassment in violation of the California Fair Employment and Housing Act (FEHA).3 The trial court granted summary judgment in favor of defendants, concluding that the conduct in question did not support a claim of sexual harassment, and the Court of Appeal affirmed. Both courts reasoned that the plaintiffs "were not themselves subjected to sexual advances and were not treated any differently than male employees."
Using an EEOC policy statement and a few earlier cases for guidance, the California Supreme Court concluded 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.” Therefore, an employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment. The plaintiffs in Miller established a prima facie case of sexual harassment under a hostile work-environment theory, i.e. a trier of fact reasonably could find from the evidence in the record that a hostile work environment was created in the prison workplace.
Among the defendants’ arguments in Miller was that “plaintiffs' position, if adopted, would inject the courts into relationships that are private and consensual and that occur within a major locus of individual social life for both men and women -- the workplace.” Defendants argued that social policy favors rather than disfavors workplace relationships, that personal privacy was at stake, and that “it is safer to treat sexual favoritism as merely a matter of personal preference, and to recall that the FEHA is not intended to regulate sexual relationships in the workplace, nor to establish a civility code….” The Court rejected this argument, stating that it is not the relationship, but its effect on the workplace, that is relevant under a court’s analysis and that, in any event, “the [law] already clearly contemplates some intrusion into personal relationships.”
The Miller decision marks a significant expansion of sexual harassment law in California since prior cases restricted actionable harassment claims to employees who were either directly involved in sexual liaisons at the worksite or were recipients of unwanted sexual advances on the job. Though California Supreme Court decisions are not binding law in states other than California, time will tell what other courts across the county decide, and smart employers will heed Miller’s message. It simply makes good sense to prohibit conduct in the workplace which might make people uncomfortable at best, often can compromise their ability to get their work done, and can even lead to serious workplace problems like harassment and violence. A dating relationship between a supervisor and subordinate is one type of conduct that presents these concerns.
What Are the Options?
It’s clear that from a business standpoint, dating in the workplace can often be disastrous. An employer can and should prohibit certain types of dating in the workplace, and it must make sure to enforce the guidelines consistently. On the other hand, it serves no one to adopt a paranoid approach, banning behavior that is innocuous or inconsequential.
Ban on Dating
Prohibiting dating in the workplace altogether, though straightforward and perfectly legal, is not a recommended approach. The reality is that many people meet and date at work; indeed, according to a 2005 Office Romance Survey by Vault Inc., 58 percent of employees indicated that they have been involved in an office romance. It’s also true that sometimes these relationships work out; a recent survey by the American Management Association showed that 44 percent of managers who dated someone from work said their relationships led to marriage. Thus, such a policy could negatively affect morale, poses significant enforcement hurdles and is generally impractical.
Conflict of Interest Policies
Another option is to put in place a policy prohibiting workplace relationships that might present a conflict of interest, which would, of course, include a relationship between an employee and anyone with supervisory authority over them. According to the 2005 Vault, Inc. survey, 19 percent of those polled had dated a subordinate and 14 percent had dated a boss or superior, but only 19 percent disclosed their relationships to co-workers. A conflict of interest policy might require that workplace romances be reported, at which point the organization would make an appropriate decision as to the reporting structure in order to avoid real or perceived impropriety or conflicts of interest.
Some employers try to ward off sexual harassment charges and other problems stemming from office romances by having the employees who are romantically involved read and sign a consensual relationship agreement, aka a “love contract.”4 These agreements typically spell out that the relationship is mutually agreeable, consensual, and unrelated to the company; that couples are aware of the policy against sexual harassment and know how to use it; and that they agree to settle any relationship dispute through binding arbitration, not a lawsuit.
The downside of love contracts is that they are arguably often involuntary and might create the appearance that such relationships are employer-sanctioned.
The most common type of policy on dating at work “strongly discourages” but does not ban outright romantic relationships between supervisors and subordinates. The disadvantage of this type of policy is enforceability: To what lengths is the employer willing to go in order to expose dating relationships? How and when are employees disciplined for violating policy? These policies are viewed by some as essentially meaningless.
In light of the Miller decision, employers should reexamine existing policies and practices and/or institute policies and practices to protect against situations that might lead to any kind of workplace harassment. Remember, however, that an organization’s policies are only meaningful if they are communicated to and understood by all employees. When an employer decides to roll out these policies, it must carefully consider how best to train employees so that they clearly apprehend what is and is not appropriate behavior at work.
1A Jackson Lewis surveys revealed that 20 percent of responding employers have a written dating policy in place.
2Miller v. Department of Corrections, 36 Cal.4th 446, 115 P.3d 77, 30 Cal.Rptr.3d 797,Cal. Sup. Ct. No. S114097 (July 18, 2005).
3The plaintiffs’ other causes of action were for sexual discrimination in violation of public policy, retaliation in violation of public policy, disability discrimination in violation of the FEHA and public policy (Miller), negligent retention and promotion, invasion of privacy, assault and battery (Miller), false imprisonment (Miller), defamation, and intentional infliction of emotional distress.
4The concept of the "love contract" originated at the law firm, Littler Mendelson. According to Gary Mathiason, one of the Littler attorneys who created the love contract concept, Littler has used such contracts about 1,000 times, and to his knowledge they have never been litigated.