Privacy Issues in the Workplace

In the 2005 landmark decision of Miller v. Department of Corrections 511 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 512 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 relationship, 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. 513 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 employment and she acquiesced and continued in the relationship out of fear of losing her job) and retaliation (that after she ended the relationship, her employer changed the terms of her employment). Clearly, the potential exists for consensual romantic relationships between supervisors and subordinates to later form the basis for harassment claims. The upshot of these sexual harassment cases is that employers have a very strong interest in learning of and regulating workplace romantic relationships to insure no unlawful harassment develops. As the above cases demonstrate, romantic relationships in the workplace can result in harassment claims by one of the persons in the relationship or by coworkers affected by it. This strong employer interest exists notwithstanding employee claims that they have privacy interests in such relationships.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 155