A recent California Supreme Court decision, which expanded California's definition of sexual harassment, could impact the way courts in your state view sexual favoritism in the workplace.

What happened. In 1983, Edna Miller was hired by the California Department of Corrections. In 1994, she learned that a chief deputy warden, Lewis Kuykendall, was having concurrent sexual affairs with three subordinates, Kathy Bibb, Debbie Patrick, and Cagie Brown.

Miller was transferred to the Valley State Prison for Women (VSPW) in February 1995, where Kuykendall had been named warden and had apparently arranged for Patrick and Brown--and later Bibb--to be transferred. Bibb and Brown allegedly bragged about their control over Kuykendall.

A few months later, Kuykendall served on a panel that interviewed candidates for a temporary promotion. Miller had a higher rank, better education, and more experience, but Brown was promoted both to the temporary assignment, and later, to the permanent position. About 18 months later, Brown was promoted again and became Miller's immediate supervisor.

In 1996, after working for the department for more than 2 decades, Frances Mackey was transferred to VSPW and soon became aware of Kuykendall's affairs. Bibb was promoted to a job for which she was unqualified, and Mackey was denied opportunities that would have made her eligible for the position.

Not only did Kuykendall's favoritism prevent Miller and Mackey from advancing in their careers, it also caused him to overlook Brown's harassment of the two. Brown repeatedly interfered with their work and made demeaning comments to them. Despite Miller and Mackey's complaints to supervisors, the harassment continued. One day, Brown physically assaulted Miller in Miller's office and forced her to stay there for 2 hours. After Miller complained to Kuykendall, he subsequently promoted Miller but never investigated the assault.

Miller and Mackey eventually resigned and started legal proceedings, claiming that employees who had an affair with Kuykendall received special treatment. Miller and Mackey said they were victims of sexual discrimination and harassment in violation of the California Fair Employment and Housing Act and that they were retaliated against for lodging complaints. After an internal affairs investigation, Kuykendall retired, Brown resigned, and another supervisor was demoted and transferred to another facility.

A trial court granted summary judgment to the department, and the appellate court affirmed that decision, saying Miller and Mackey were in the same position as their male co-workers who didn't benefit from the favoritism. The case went to the California Supreme Court.

What the court said. The state Supreme Court said an isolated instance of supervisory favoritism toward a female employee who is sexually involved with a supervisor is generally not considered to be sexual harassment. When such favoritism "is sufficiently widespread," however, "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 only way women can advance in the workplace is by becoming sexually involved with management.

The court reversed the appellate court ruling, saying that a hostile work environment can be established by a male or female worker even when the worker has not been propositioned in a sexual sense. Miller v. Department of Corrections, No. S114097 (7/18/05).

What to remember

• Establish a complaint procedure. Make sure employees know how to lodge a complaint about sexual favoritism or sexual harassment, and investigate all complaints.
  
• Avoid conflicts of interest. If a supervisor is sexually involved with an employee, the supervisor should not be involved with promotion decisions for that person.
  
• Ensure confidentiality. Miller and Mackey were assured that their comments to internal affairs would remain confidential, but they weren't-- and they claim to have suffered retaliation as a result.