CA Supreme Court Expands Protections for Workers

The Miller case presents a classic example of how “bad facts” can result in “bad law.” The supervisor in Miller worked as a deputy warden for the California Department of Corrections. For years, he engaged in consensual sexual affairs with at least three of his subordinate female employees, who, not surprisingly, received promotions and more favorable treatment than other female employees under his supervision. In addition, the warden also served on several internal committees that evaluated employees for promotion and, on several occasions, granted promotions to his female paramours over other, more qualified, candidates. Several of his paramours even bragged about their sexual “power” over him, boasting that they could “take him down” if they did not get promoted.

Two females who were passed over for promotions sued the Department of Corrections and the warden, even though they were not the target of his inappropriate conduct. They claimed the warden's affairs and favoritism toward the women with whom he had sex had created a hostile work environment for themselves and other employees. The Supreme Court agreed, and reversed two lower court rulings that had dismissed the case. Relying primarily on EEOC policy statements, the Supreme Court concluded that the affairs gave rise to a hostile work environment because they created an atmosphere that was demeaning to women. “Widespread favoritism based upon consensual sexual affairs may imbue the workplace with an atmosphere that is demeaning to women because a message is conveyed that managers view women as 'sexual playthings.'” Even men may sue for harassment, said the Court, if they can show that sexual affairs and favoritism (even if directed only towards females) create a hostile environment for them as well.

Preventing Sexual Harassment in the Workplace

In light of Miller, employers must remain vigilant in preventing and correcting sexual harassment in the workplace. A strong anti-harassment policy with an effective procedure for investigating complaints of harassment is essential. Such a policy must allow an employee who believes he or she has been harassed to lodge complaints with someone other than their direct supervisor, and the policy must specifically state that no retaliation will occur in response to complaints brought in good faith. Investigations should be conducted immediately and confidentially, and corrective action taken where appropriate.

In addition, employers should consider having anti-nepotism and anti-fraternization policies in place. Such policies generally prohibit a family or dating relationship between a supervisor and subordinate employee, or any other relationship that might create a conflict of interest within the working environment. At a minimum, employers should not allow a supervisor to make employment decisions (ie, job assignments, promotions, salary increases) for employees with whom that supervisor is involved romantically or sexually.

Employers may want to consider so-called “love contracts,” in which two employees acknowledge in writing that they are involved in a consensual romantic relationship that does not involve coercion, harassment or unfair treatment. In such agreements, the employees also acknowledge their continuing obligations to engage in appropriate conduct in the workplace and to report any change in their relationship to human resources or other member of management. Employers should state in writing that no retaliation will occur for reporting the existence — or end — of the relationship.

Yanowitz v. L'Oreal USA

The California Supreme Court's decision in another recent case, Yanowitz v. L'Oreal USA, is equally expansive. In Yanowitz, the Supreme Court held that an employee who refuses to follow a supervisor's request because the employee “reasonably believes” the request to be discriminatory — even if it is not — may sue for retaliation if the supervisor later takes adverse action against the employee.

In Yanowitz, the plaintiff worked as a sales manager for L'Oreal. Her supervisor ordered her to fire a sales associate because the supervisor believed the associate was “not good looking enough,” and he directed the plaintiff to “hire someone hot.” When the plaintiff refused and asked the supervisor for justification for the discharge, it was not provided and the sales associate was not terminated. A year later, according to the plaintiff, the supervisor began criticizing her management style, auditing her expense reports, yelling at her, and soliciting negative comments from co-workers, all allegedly in retaliation for her objections to his earlier request and her refusal to terminate the sales associate. Eventually, the plaintiff went out on medical leave and then sued alleging retaliation under the Fair Employment and Housing Act (FEHA).

The trial court granted summary judgment and the Court of Appeal affirmed, on the grounds that the plaintiff had not specifically complained of discrimination and, therefore, she had not engaged in “protected activity” under FEHA. The Supreme Court disagreed, however, ruling that complaints brought by an employee who “reasonably believes” she is complaining about discriminatory treatment are sufficient to constitute “protected activity” under the statute, even if the employee does not explicitly state that she believes the employer's actions to be discriminatory. The Court reversed summary judgment and sent the case back to the lower court to determine at trial “whether Yankowitz's allegations are true.”

Responding to Complaints of Discrimination

The decision in Yankowitz sends several important messages to employers. First, employers must respond, investigate, and address all complaints brought by their employees, even those that may not appear to involve discriminatory or other unlawful conduct. During an investigation, ask the complaining employee to provide details about the alleged events and to explain why the employee is complaining about them. Employers must consider all acts described by the employee that might remotely be considered discriminatory or retaliatory.

In addition, employers should not make employment decisions based on physical characteristics unless there are bona fide job requirements for doing so. This is sometimes hard to do, particularly when the position involves direct and extensive contact with customers. When physical characteristics are a bona fide job qualification, however, employers should ensure that the criteria are applied equally to both men and women.

In a pair of recent decisions, the California Supreme Court has significantly widened protections for workers claiming harassment and discrimination under the state's Fair Employment and Housing Act. Taken together, these decisions give California employees protections from job discrimination far beyond those in any other state.

Miller v. Dept. of Corrections

In Miller v. Dept. of Corrections, a unanimous Supreme Court ruled that the sexual affairs and favoritism of a supervisor may support claims of sexual harassment, even by employees who are not involved in the affairs or the target of any sexual conduct. Under existing California law, only an employee who was directly subjected to sexual conduct in the workplace, either of a physical, verbal, or visual nature, could bring a claim for sexual harassment.

The Miller case presents a classic example of how “bad facts” can result in “bad law.” The supervisor in Miller worked as a deputy warden for the California Department of Corrections. For years, he engaged in consensual sexual affairs with at least three of his subordinate female employees, who, not surprisingly, received promotions and more favorable treatment than other female employees under his supervision. In addition, the warden also served on several internal committees that evaluated employees for promotion and, on several occasions, granted promotions to his female paramours over other, more qualified, candidates. Several of his paramours even bragged about their sexual “power” over him, boasting that they could “take him down” if they did not get promoted.

Two females who were passed over for promotions sued the Department of Corrections and the warden, even though they were not the target of his inappropriate conduct. They claimed the warden's affairs and favoritism toward the women with whom he had sex had created a hostile work environment for themselves and other employees. The Supreme Court agreed, and reversed two lower court rulings that had dismissed the case. Relying primarily on EEOC policy statements, the Supreme Court concluded that the affairs gave rise to a hostile work environment because they created an atmosphere that was demeaning to women. “Widespread favoritism based upon consensual sexual affairs may imbue the workplace with an atmosphere that is demeaning to women because a message is conveyed that managers view women as 'sexual playthings.'” Even men may sue for harassment, said the Court, if they can show that sexual affairs and favoritism (even if directed only towards females) create a hostile environment for them as well.

Preventing Sexual Harassment in the Workplace

In light of Miller, employers must remain vigilant in preventing and correcting sexual harassment in the workplace. A strong anti-harassment policy with an effective procedure for investigating complaints of harassment is essential. Such a policy must allow an employee who believes he or she has been harassed to lodge complaints with someone other than their direct supervisor, and the policy must specifically state that no retaliation will occur in response to complaints brought in good faith. Investigations should be conducted immediately and confidentially, and corrective action taken where appropriate.

In addition, employers should consider having anti-nepotism and anti-fraternization policies in place. Such policies generally prohibit a family or dating relationship between a supervisor and subordinate employee, or any other relationship that might create a conflict of interest within the working environment. At a minimum, employers should not allow a supervisor to make employment decisions (ie, job assignments, promotions, salary increases) for employees with whom that supervisor is involved romantically or sexually.

Employers may want to consider so-called “love contracts,” in which two employees acknowledge in writing that they are involved in a consensual romantic relationship that does not involve coercion, harassment or unfair treatment. In such agreements, the employees also acknowledge their continuing obligations to engage in appropriate conduct in the workplace and to report any change in their relationship to human resources or other member of management. Employers should state in writing that no retaliation will occur for reporting the existence — or end — of the relationship.

Yanowitz v. L'Oreal USA

The California Supreme Court's decision in another recent case, Yanowitz v. L'Oreal USA, is equally expansive. In Yanowitz, the Supreme Court held that an employee who refuses to follow a supervisor's request because the employee “reasonably believes” the request to be discriminatory — even if it is not — may sue for retaliation if the supervisor later takes adverse action against the employee.

In Yanowitz, the plaintiff worked as a sales manager for L'Oreal. Her supervisor ordered her to fire a sales associate because the supervisor believed the associate was “not good looking enough,” and he directed the plaintiff to “hire someone hot.” When the plaintiff refused and asked the supervisor for justification for the discharge, it was not provided and the sales associate was not terminated. A year later, according to the plaintiff, the supervisor began criticizing her management style, auditing her expense reports, yelling at her, and soliciting negative comments from co-workers, all allegedly in retaliation for her objections to his earlier request and her refusal to terminate the sales associate. Eventually, the plaintiff went out on medical leave and then sued alleging retaliation under the Fair Employment and Housing Act (FEHA).

The trial court granted summary judgment and the Court of Appeal affirmed, on the grounds that the plaintiff had not specifically complained of discrimination and, therefore, she had not engaged in “protected activity” under FEHA. The Supreme Court disagreed, however, ruling that complaints brought by an employee who “reasonably believes” she is complaining about discriminatory treatment are sufficient to constitute “protected activity” under the statute, even if the employee does not explicitly state that she believes the employer's actions to be discriminatory. The Court reversed summary judgment and sent the case back to the lower court to determine at trial “whether Yankowitz's allegations are true.”

Responding to Complaints of Discrimination

The decision in Yankowitz sends several important messages to employers. First, employers must respond, investigate, and address all complaints brought by their employees, even those that may not appear to involve discriminatory or other unlawful conduct. During an investigation, ask the complaining employee to provide details about the alleged events and to explain why the employee is complaining about them. Employers must consider all acts described by the employee that might remotely be considered discriminatory or retaliatory.

In addition, employers should not make employment decisions based on physical characteristics unless there are bona fide job requirements for doing so. This is sometimes hard to do, particularly when the position involves direct and extensive contact with customers. When physical characteristics are a bona fide job qualification, however, employers should ensure that the criteria are applied equally to both men and women.