Miller v. Department of Corrections
Widespread sexual favoritism by a supervisor can create an actionable hostile work environment under the FEHA by conveying the demeaning message that women are “sexual playthings” or must trade sex for advancement.
Miller v. Department of Corrections (2005) 36 Cal.4th 446
Harassment
Sexual Favoritism
Hostile Work Environment
FEHA
Reversed
In brief. The California Supreme Court held that “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,” but that “when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 451.) Such favoritism conveys “the demeaning message . . . that [women] are viewed by management as ‘sexual playthings’ or that the way required for women to get ahead in the workplace is to engage in sexual conduct with their supervisors.” (Ibid.) Summary judgment for the employer was reversed. (Id. at p. 451.)
Facts
Plaintiffs Edna Miller and Frances Mackey worked at the Valley State Prison for Women. They alleged that the warden, Lewis Kuykendall, simultaneously carried on consensual sexual affairs with three subordinate employees — Kathy Bibb, Cagie Brown, and associate warden Debbie Patrick — and granted those women “unwarranted and unfair” advantages in assignments and promotions. (36 Cal.4th at pp. 452–457.) The favoritism was open and widely known; the warden’s girlfriends boasted about their influence over him, competed openly for his favor, and at least one, Brown, harassed other employees — conduct that escalated to a physical confrontation the warden refused to control. (Id. at pp. 452–457.) Both plaintiffs claimed they were passed over for advancement in favor of the warden’s paramours and subjected to a demeaning, sexually charged work environment; Miller was later denied a promotion and Mackey, who died during the litigation, alleged retaliation. (Id. at pp. 455–457.)
Procedural history
The trial court granted summary judgment to the Department of Corrections, and the Court of Appeal affirmed, reasoning that favoritism toward a supervisor’s sexual partners does not constitute discrimination “because of sex” because it disadvantages men and women alike. (36 Cal.4th at pp. 450–451, 457–458.) The Supreme Court granted review and reversed, holding that widespread sexual favoritism can support a FEHA hostile-environment claim, and remanded for further proceedings. (Id. at pp. 451, 480.)
Issue
Can an employee establish a hostile-work-environment sexual harassment claim under the FEHA based on a supervisor’s widespread sexual favoritism toward employees with whom he is having consensual affairs, even though the plaintiff was not herself the target of sexual advances? (36 Cal.4th at pp. 450–451.)
Holding
Yes, where the favoritism is sufficiently widespread. “[A]lthough 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 to engage in sexual conduct.” (36 Cal.4th at p. 451.) Summary judgment was improper because the plaintiffs presented evidence that advancement was based on sexual favors and that the warden’s conduct “conveyed this demeaning message in a manner that had an effect on the work force as a whole.” (Id. at pp. 451, 465–466.) Reversed and remanded. (Id. at p. 480.)
Reasoning
1. Isolated favoritism is not sex discrimination; widespread favoritism can be. The Court agreed that ordinary romantic favoritism is not actionable, because it disadvantages male and female employees alike and so is not “because of sex.” (36 Cal.4th at pp. 461–462.) But it drew a line at scale and message: when sexual favoritism becomes “sufficiently widespread,” it ceases to be a private matter between two people and instead communicates a sex-based message to the entire workforce. (Id. at pp. 462–465.)
2. The EEOC policy statement as guide. The Court adopted the analysis of the EEOC’s 1990 Policy Guidance on Employer Liability under Title VII for Sexual Favoritism. (36 Cal.4th at pp. 462–464.) That guidance distinguishes three situations: isolated favoritism (lawful), favoritism procured by coerced sexual conduct, and “widespread favoring of consensual sexual partners.” (Id. at p. 463.) As the EEOC explained, “although isolated instances of sexual favoritism in the workplace do not violate Title VII, widespread sexual favoritism may create a hostile work environment . . . by sending the demeaning message that managers view female employees as ‘“sexual playthings”’ or that ‘the way for women to get ahead in the workplace is by engaging in sexual conduct.’” (Id. at pp. 462–463.) The Court found the policy statement “a useful guide.” (Id. at p. 463.)
3. The message, not the plaintiff’s own solicitation, is the injury. Like Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, decided the following year, Miller recognized that an employee may be a victim of a hostile environment even when the offending conduct is not directed at her personally. Here the actionable harm was the workplace-wide message that women were valued as sexual objects and that sexual conduct was the path to advancement — a message the plaintiffs experienced directly through repeated denials of merit-based advancement and through the conduct of the warden’s favorites. (36 Cal.4th at pp. 465–466.)
4. Severe or pervasive on this record. Applying the FEHA standard, the Court held the evidence raised triable issues that the favoritism was severe or pervasive enough to alter the plaintiffs’ working conditions: the affairs were numerous and open, the favorites flaunted their influence, advancement turned on sexual relationships, and the warden tolerated escalating misconduct by one paramour. (36 Cal.4th at pp. 465–467.) Summary judgment therefore could not stand. (Id. at p. 466.)
5. Retaliation. The Court also addressed Mackey’s retaliation claim, holding that an employee need not have been the direct target of the harassment to be protected from retaliation for opposing it, and that triable issues existed on whether adverse actions followed the plaintiffs’ complaints. (36 Cal.4th at pp. 472–480.)
Significance
Miller is California’s leading authority on sexual-favoritism harassment, establishing that the FEHA reaches a workplace in which advancement appears to turn on sexual relationships with management, even absent advances directed at the plaintiff. It adopts the EEOC’s widespread-favoritism framework and pairs naturally with Lyle, which marks the outer boundary by holding that merely vulgar, non-targeted conduct is not actionable. Together the two cases frame the modern California inquiry: harassment must be “because of sex” and must convey a sex-based message severe or pervasive enough to alter working conditions. Miller remains a staple in cases involving supervisor-subordinate relationships, glass-ceiling allegations, and quid-pro-quo dynamics affecting an entire workforce. See the Review’s coverage of the harassment line.
Key quotes
“[W]hen 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.’” (Miller, supra, 36 Cal.4th at p. 451.)
“[A]lthough isolated instances of sexual favoritism in the workplace do not violate Title VII, widespread sexual favoritism may create a hostile work environment . . . by sending the demeaning message that managers view female employees as ‘“sexual playthings”’ or that ‘the way for women to get ahead in the workplace is by engaging in sexual conduct.’” (Id. at pp. 462–463.)
Read the full opinion (California Supreme Court — full text) →
Practice pointer
Build the record around scale and message. A single consensual office romance will not support a favoritism claim; the case lives or dies on showing the favoritism was widespread and conveyed a workplace-wide, sex-based message — multiple relationships, open boasting, advancement tied to sexual access, and tolerance of the favorites’ misconduct. Tie the plaintiff’s own experience (denied promotions, hostile treatment) to that message to satisfy the severe-or-pervasive element. Pair Miller with Government Code section 12923, and anticipate the defense reliance on Lyle and on the rule that isolated favoritism is not “because of sex.”
Open questions
How much favoritism is “widespread” enough — and how directly the plaintiff must connect the demeaning message to her own working conditions — remains fact-intensive and unsettled at the margins. The interaction of Miller with Government Code section 12923’s single-incident and summary-judgment provisions, and the line between actionable favoritism and lawful (if unfair) office romance, continue to be litigated.