Sexual Favoritism Harassment and Discrimination in Violation of the Fair Employment and Housing Act

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June 1, 2020

The California Fair Employment and Housing Act (“FEHA”) [Gov. Code § 12900, et seq.] prohibits discrimination and harassment against an employee based on sex (among other things), and also prohibits retaliation for complaining about discrimination and/or harassment.  As a matter of public policy, the FEHA recognizes the need to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination, harassment, and retaliation.  [Gov. Code § 12920.]  The California state legislature has directed the FEHA be construed liberally so as to accomplish its purposes.  [Gov. Code § 12993. ]  Moreover, the California Supreme Court has specifically held that one’s right to be free from discrimination and harassment in the workplace is “fundamental.”  [Brown v. Superior Court (1984) 37 Cal.3d 477.]

To state a prima facie (valid) case of “hostile work environment” sexual harassment under the FEHA, a plaintiff must allege: 1) She or he was subjected to unwelcome sexual advances, conduct or comments; (2) The harassment complained of was based on sex; and 3) The harassment was “so severe or pervasive” as to “alter the conditions of the victim’s employment and create an abusive working environment.”  [Meritor Sav. Bank v. Vinson (1986) 477 U.S. 57, 67.] Hostile work environment harassment generally occurs when the plaintiff’s work environment is made hostile or abusive by sexual misconduct.  [Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1045.] Hostile work environment sexual harassment cases may involve various forms of verbal and physical conduct, of both a sexual or nonsexual nature, which have the purpose or effect of creating a hostile or offensive work environment.  [Faragher v. City of Boca Raton (1998) 524 U.S. 775, 789.]

Keep in mind that even in the absence of unwanted sexual advances or comments, hostile environment sexual harassment can be shown if the employer creates an atmosphere that is severely demeaning to women.  For example, sexual favoritism harassment, wherein there is widespread favoritism based on the granting of sexual favors in the workplace, is often overlooked. Both male and female colleagues who do not welcome this conduct can establish a case of “hostile environment” sexual harassment under the FEHA.  In fact, offensive conduct need not be sexual in nature to constitute actionable sexual harassment.

According to Miller v. Department of Corrections:

The prohibition against sexual harassment includes a broad range of conduct, expressly or impliedly conditioning employment benefits on submission to or tolerance of unwelcome sexual advances, to the creation of a work environment that is hostile or abusive on the basis of sex. Such a hostile environment may be created even if the plaintiff is never subjected to sexual advances.

[Emphasis added.] [Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466.]  In Miller, there was widespread sexual favoritism of a warden’s paramours, which conveyed demeaning messages to other employees that he viewed women as “sexual playthings.” [Id. at 446.]  “[A]n employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile working environment.” [Id. at 466.] For example, “One of the unfair employment benefits granted to [the warden’s paramour] was the power to abuse other employees who complained concerning the affairs. When plaintiffs complained, they suffered retaliation.”  [Id. at 465.]

In Miller, after the plaintiff complained to the warden regarding his affairs with his paramours, those paramours “made Miller’s life miserable and diminished her effectiveness by frequently countermanding her orders, undermining her authority, reducing her supervisorial responsibilities, imposing additional onerous duties on her, making unjustified criticisms of her work, and threatening her with reprisals when she complained to [the warden] about their interference. . . . [The] warden was aware of [the paramours’] mistreatment of Miller but would do nothing to rectify the situation.”  [Id. at 456.]

The court in Harris v. Forklift Systems, Inc. held that the working environment must be evaluated in light of the totality of the circumstances:  “[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at the circumstances.  This may include the frequency of the discriminatory conduct; its severity, whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”  [Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 23.] The court noted that an “objectively hostile or abusive work environment” is created when “a reasonable person would find [it] hostile or abusive,” and the victim subjectively perceives it as such.  [Id.]

Additionally, employers have an affirmative duty to take all reasonable steps necessary to prevent discrimination and harassment from occurring.  [Gov. Code § 12940(k).] Section 12940(k) creates a separate statutory tort action with the usual tort elements (duty of care to plaintiff, breach of duty, causation, and damages) . [Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286.]

Once an employer learns of a sexual harassment complaint, an employer has a duty to conduct a prompt and fair investigation to determine whether the complaint is justified.  [Swenson v. Potter (9th Cir. 2001) 271 F.3d 1183, 1193; Baldwin v. Blue Cross/Blue Shield of Alabama (11th Cir. 2007) 408 F.3d 1287, 1303.]  This requires much more than simply asking the harasser if he or she did what has been alleged.  An employer should gather any relevant evidence, including incidents of sexual harassment directed toward other employees by the alleged harasser.  The employer should also interview not only the complainant and alleged harasser, but also any percipient witnesses.  If, after a proper investigation, sexual harassment is found to exist, the employer has an obligation to take proper remedial action.  This can include, among other things, suspension or termination of the harasser’s employment and reimbursement of any expenses the victim incurred as a result of the harassment.  (Click the links below to read Eskridge Law’s articles titled “Sexual Harassment – Proper Remedial Action” and “Investigation of Sexual Harassment Complaints.”)

Sexual Harassment – Proper Remedial Action
Investigation of Sexual Harassment Complaints

Above all, employers should seek the advice of an experienced employment law attorney to guide them through such a delicate investigation.

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This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.