Supreme Court Decision--Gender Discrimination

The Law -- Women as "Playthings" -- Miller v. Department of Corrections (2005) 36 Cal.4th 446.

The following is my briefing of a major California Supreme Court case addressing the law of gender discrimination, harassment, and retaliation:

I. Miller v. Department of Corrections (2005) 36 Cal.4th 446.

II. The Miller Facts: Case by two prison employees [Miller and Mackey] against the Dept. for sexual discrimination, sexual harassment, and retaliation because of complaints of discrimination and sexual harassment.

Miller heard that Prison Warden Lewis Kuykendall was having a sexual relationship with 3 prison employees: Bibb, Brown & Patrick. In 1994 Miller complained about these relationships as "inappropriate".

In 2/95, Miller transferred to work at prison where Kuykendall was warden. Miller was on a review panel told by Kuykendall to promote Bibb even though panel thought her to be unqualified. Patrick opposed Bibb's promotion.

Miller confronted Brown, who admitted affair with Warden. Brown beat out Miller for a promotion to "facility captain". Generally other employees thought Miller was more qualified and Brown got the position because of sleeping with the Warden.

Within 1 ½ years Brown promoted on Kuykendall's recommendation to Associate Warden. Brown now supervised Miller.

Evidence of Warden phoning Brown from work to her home hundreds of times, and witnesses to Warden and Bibb fondling each other 3 times at work. Evidence was that Patrick, Bibb & Brown squabbled over Kuykendall in emotional scenes witnessed by other employees.

Brown and another female employee Yamamoto believed to have lesbian relationship.

In 97, Miller complained to a Dept. "sexual harassment adviser" about Kuykendall's relationship with Brown, and Brown's relationship with Yamamoto. Miller also then complained to Kuykendall directly about the relationships. In Sept. 97, Miller confronted Brown directly about her relationships with Kuykendall and Yamamoto.

Brown next day physically assaulted Miller, and "held her captive" for 2 hours. Yamamoto knew of this incident, but did not intervene to help. Kuykendall also did nothing to discipline Brown afterward, saying he could do nothing because of Brown's relationship to him and Yamamoto.

Miller cooperated with a Dept. internal affairs investigation into Brown and Kuykendall and Yamamoto. Brown learned of Miller's cooperation. Yamamoto harassed Miller with unannounced inspections, and interference with her orders. Brown followed Miller home and harassed her there as well, resulting in a court restraining order against her.

6/99 Miller filed civil complaint.

The Mackey Facts. Mackey was Miller's assistant. Brown believed that Mackey had complained to Kuykendall about Kuykendall's relationship with Brown. Mackey received a cut in pay, and Brown verbally abused her "in the presence of co-workers". Mackey felt powerless to do anything about the situation and feared that if she complained she would be punished. Some double hearsay by Mackey that Brown and Bibb fought over their relationships with Kuykendall. In 1997, Mackey cooperated with internal affairs investigator to complain of Kuykendall's love relationships. Mackey believed confidentiality of information breached, and Kuykendall then cut her duties and denied her a promotion. Mackey was out sick due to stress, returned to work, and was demoted. In 1999, A few months after returning to work, she resigned. In 6/99 she filed a civil complaint with Miller.

III. The Miller and Mackey Issues:

A. Is there a cause of action for sexual harassment where the employer favors some women over others because of the sexual relationship he has with the favored women?

PLAINTIFF'S ARGUMENT: Kuykendall's behavior communicated a general message to both men and women in the office: advantages are linked to sexual favors. If you're willing to provide those sexual favors, you will be promoted over more qualified persons who are not willing to provide those favors. Also, if you provide these sexual favors, you'll be permitted to abuse other employees without being disciplined. This general message created a hostile work environment.

DEFENDANT'S ARGUMENT: At worst, Kuykendall's behavior was a limited exercise of personal preference for a 2 or 3 paramours. Even if someone was disadvantaged because of this personal preference, the preference produced the same disadvantage for men as for women. Therefore there was no discrimination based on sex.

Court Held: Viewing all the circumstances "from the perspective of a reasonable person in the plaintiff's position", a jury could find that Kuykendall's conduct of sexual favoritism "was widespread enough" to communicate to such a "reasonable woman" that management saw women as "sexual play-things" and that sexual conduct was useful to getting ahead in the workplace.

B. Did the Plaintiffs Miller and Mackey make a sufficient showing that there was a sexually hostile environment
where they did not show that they were personally propositioned or that the sexual relationships of other female co-workers was "coerced" (non-consensual).

1. Does a sexually hostile work environment require that the hostility be motivated by sexual conduct?

2. Does a sexually hostile work environment require that the hostility be motivated by sexual desire?

PLAINTIFF'S ARGUMENT: While Brown, Patrick and Bibb might like the Warden's private rules for promotion and discipline, Miller, Mackey, and all other men and women in the workplace felt disadvantaged because the warden was open and obvious in his preference for his sexual partners. He fondled one 3 times publicly. He directed a panel to promote one that the panel thought least qualified. He refused to discipline another even after being told she was retaliating because of Miller's and Mackey's complaints about favoritism based on sex. Many employees believed that Kuykendall rewarded his sexual partners with job opportunities and privileges not given to others.

DEFENDANT'S ARGUMENT: First, Miller and Mackey were not themselves the subject of any unwanted sexual comments or conduct. Secondly, Kuykendall's relationship with Brown, Patrick, and Bibb were voluntary and non-hostile as to Brown, Patrick and Bibb. So where is the sexual harassment?

Court held: the Plaintiff can make a case for sexually hostile work environment without showing that she was herself the direct recipient of any sexually offensive conduct, and the question of the sexual desire behind the conduct is irrelevant. The question is the objective presence of hostility based on sex as reasonably perceived by a woman (or man) in that work environment "in view of all the circumstances".

3. Did the Plaintiff's present only evidence of Kuykendall's "personal preference" shown to a romantic partner, or did the evidence support a conclusion of "widespread sexual favoritism"?

PLAINTIFF'S ARGUMENT: The Warden and his favored lovers were blatant. Brown openly stated the existence of her affair, and that she had the power to expose and harm the Warden if he didn't give her the promotions she sought. Bibb and Brown bragged openly about their relationship with the Warden, and engaged openly in jealous arguments over him. The Warden gave license to Brown to harass Miller even when Miller complained of her retaliation against her. The Warden admitted to Miller he couldn't control Brown because of her sexual relationship with him. There is evidence the Warden promoted Brown and Bibb over more qualified applicants not providing sexual favors.

DEFENDANT'S ARGUMENT: Isolated instances of preference based on sexual relations are a private matter between two people. Also, the law is that isolated instances are really matters of personal preference and do not create a hostile work environment. Rumors and hearsay got started, but these are not evidence of a widespread problem, but rather are evidence of widespread rumors.

Court held: There is evidence of "widespread abuse" and "widespread sexual favoritism".

What You Can Do

1. If you believe the boss is romantically involved with a co-worker, and showing that co-worker preference, take the time to gather the information. Who else feels that way at work? What else have others observed to support the belief that a sexual liaison exists? What preferences are being shown for the paramour as compared to other employees? For example, are long lunches, late arrivals, and shoddy work OK for the paramour, but the subject of strict discipline for others? Remember, you will need names, dates, events, and documents to support your formal or informal charge. The problem in these cases is that the sexual/romantic partners are trying to be "discreet", and so you must overcome the problems of hearsay and rumor. Keep an "off-site" diary with your observations, witness list, and documentation.

2. You may not be correct that a sexual preference is actually occurring, but the law does not require that you be "legally correct" but only that you believe reasonably for one in your circumstances that preferences are being granted on the basis of sex/gender. Your information therefore will be relevant to showing your belief is "reasonable".

3. Don't take action if the sexual relation is merely an occasional irritant, but not really an impediment to your work. The test is whether the conduct is so pervasive or severe the work environment itself is a "hostile" place to work. This does not require a "mental breakdown" or an actual loss of position, pay or promotion. But it does require such conduct as to greatly discourage a person from wanting to continue working for the company.

4. When you complain, complain clearly, directly, and preferably in writing, and demand your legal right to be protected from retaliation. Make clear that you want a clear directive to your boss that whether an investigation supports or does not support your charge, retaliation will be punished. Obtain and use the company's internal complaint procedure. If the company does not follow its own policies, or if the company has no policy, see an attorney for further guidance.

Conclusion

This case establishes that either men or women may bring a cause of action for gender discrimination where they can demonstrate that advantages or disadvantages of employment are connected to preference on the basis of gender, EVEN IF they are of the same gender as the persons being favored. The CA Supreme Court is clear that the employee's burden of proof does not include proof that the disadvantaged employee is himself or herself the direct target of the sexually based conduct, or that he or she is directly and personally harmed by a specific job loss or denial of opportunity. The only requirement is that the employee demonstrate that the work environment is "hostile" based on gender, that is, that the workplace is so permeated by the sexual favoritism that a reasonable employee is obstructed and discouraged in performing her daily work tasks.

Employee Rights Attorney Frank Pray

5160 Campus Drive

Newport Beach CA 92660

949.251.1006

877.job.atty

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