Privacy Issues in the Community College Workplace

3. C ONSENSUAL W ORKPLACE R OMANCES AND S EXUAL F AVORITISM

Similar problems with supervision, safety, security or morale may exist when co-workers have special off-duty relationships. For example, dating among co-workers is common. Occasionally, co-workers will develop long-term relationships and perhaps live together. Employees have a strong expectation of privacy in these personal, off-duty relationships. However, an employer has a legitimate interest in controlling or preventing any adverse effects the relationship has on supervision, safety, security or morale. A supervisor’s consensual sexual relationship with a subordinate does not per se violate federal or state anti-discrimination laws or public policy. Similarly, preferential treatment by a supervisor towards his/her paramour does not, by itself, constitute sex discrimination in violation of the Fair Employment and Housing Act (FEHA) or Title VII. 484 In the 2005 landmark decision of Miller v. Department of Corrections 485 the California Supreme Court definitively recognized that an employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating widespread sexual favoritism that was severe or pervasive enough to alter his or her working conditions and create a hostile work environment. In short, the California Supreme Court added sexual favoritism to the list of conduct that can constitute sexual harassment.

Proksel v. Gattis 486 In Proksel , a male supervisor showed preferential treatment toward a female word processor with whom he was allegedly having an affair by giving her a larger year-end bonus than any other employee, more valuable Christmas gifts, and going with her to a private birthday lunch. Even so, the court held that the supervisor’s preferential treatment toward an employee with whom he is romantically involved is not—in itself—sex discrimination under FEHA.

The Proksel case relied, in part, on a policy statement put out by the Equal Employment Opportunity Commission (EEOC) in 1990:

Not all types of sexual favoritism violate Title VII. It is the Commission’s position that Title VII does not prohibit isolated instances of preferential treatment based on consensual romantic relationships.

Even when no sexual favoritism exists in a consensual supervisor-subordinate relationships, such relationships can result in other forms of serious liability exposure. There are numerous cases involving claims of harassment brought by the paramour employees themselves, after their consensual relationships with a supervisor ended. For example, in Samson v. Allstate Insurance Co ., an attorney had a consensual romantic relationship with his legal secretary for two years, after which the secretary ended the relationship. 487 After the secretary left the job, she filed a claim against her employer alleging sexual harassment (that her employer made advances to her within the first weeks of her

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