A Sexual Harassment Prevention Tool Kit

II. Development of the Laws on Sexual Harassment

Addendum

Recent California Supreme Court Decision

Edna Miller et al. v. Department of Corrections et al.

Super. Ct. No. 99AS03354, 7-18-05

Sexual Favoritism 

The Court concluded in Miller 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.”

It is important to note the Court stated: “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.”

In this case, Plaintiffs Edna Miller and Frances Mackey were aware that their ultimate supervisor, Warden Lewis Kuykendall, engaged in three concurrent sexual affairs with subordinates whom 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. 

Elysa J. Yanowitz v. L’Oreal USA, Inc.

Super. Ct. No. 304908            8-11-05

The court concluded in Yanowitz that “ . . . an employee’s refusal to follow a supervisor’s order that she reasonably believes to be discriminatory constitutes protected activity under the FEHA [California Fair Employment and Housing] and that an employer may not retaliate against an employee on the basis of such conduct when the employer, in light of all the circumstances, knows that the employee believes the order to be discriminatory, even when the employee does not explicitly state to her supervisor or employer that she believes the order to be discriminatory.”

Yanowitz, a high-performing and award-winning regional sales manager, did not carry out an edict from her male supervisor to terminate a dark-skinned female sales associate who the supervisor described as not being “sexually attractive or hot.”  Yanowitz’s supervisor stated his preference for fair-skinned blondes and insisted that Yanowitz “get him one like that.”  She asked her supervisor for justification for terminating the sales associate which he did not provide, however, he continued to pressure her. 

Her supervisor began to retaliate against her in numerous ways, for example, soliciting negative information from her subordinates; threatened her with termination; screamed and cursed at her in front of her staff; and prepared numerous critical memos.  She was being treated for “nervous anxiety” allegedly brought on by the situation at work.  Two days after a meeting when she was confronted by her supervisor and human resources about the accusations, without considering her written responses, or her request for a “third-party” to be included in the meeting, she departed on disability leave due to stress.

For more information go to link: http://www.courtinfo.ca.gov/opinions/

Or contact G. Govine Consulting