Hostile Work Environment Definition
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Are You a Victim of Sexual Favoritism at Work?

I was working on a summary of a case called Miller v. Dept of Corrections for the community when, like fate, this question was posted to the forum by a woman who was feeling driven from her job by her boss:

QUESTION: [Edited for clarity]  “I don’t think he’s discriminating based on sex, race or religion. He just didn’t like what I said one day, which was that he “should be more discrete with that girl in accounting” since he is married.

He has had it out for me ever since.

He gave me a horrible review. I went to HR with examples disproving the review. They pushed it to the side and agreed with him. I talked to his boss and stated if someone was going to be given a review that bad then examples should accompany it. She said “Well, he said he told you about it”.

I work in a technical field. His review was based on what I said to him, not my work. When I asked how is that possible in a technical field, where I am given trouble tickets to work on, they said the intangible and subjective items matter most.

Fast Forward, I am now on a performance improvement plan and made to do things that no one else on my 12 person team is required to do. He took away my entire bonus when I can prove, by way of tickets worked, that I do 33% of the work on my team.  I am stressed, I cry all the time, I walk on eggshells and HR is not helping at all. It’s like nothing I say or any proof provided will make a difference. Lastly, it’s Christmas and I haven’t bought my children anything…After i leave work I can’t stop crying enough to make it to a store…”

ANSWER: As I mentioned above, it seemed like fate that this question arrived while I was working on a summary of Miller v. Dept of Correction; let me tell you a bit about it.

Edna Miller worked for the Department of Corrections in California.  Miller worked for a Warden named Kuykendall, who was having three simultaneous affairs with his own secretary, an associate warden, and still a third subordinate employee; The three women were named Patrick, Bibb, and Brown.

Sexual Favoritism Starts

Patrick and Miller both applied for a open management position.  Miller was the senior employee, with more training and more releveant expereience.  A panel of interviewers recommended that Miller be awarded the position, but Kuykendall gave the promotion to Patrick.

Soon after Patrick received yet another promotion and became Miller’s direct supervisor; it was common knowledge that Kuykendall and Patrick were having an affair, and there was widespread grumbling that the way to get ahead was to have sex with the Warden.

To further complicate matters, a new female Deputy Warden named Yakamoto transfered into the workplace and began inviting Miller to dinner.  It was known that Yakamoto was a lesbian, and although Miller refused Yakamoto’s advances Brown did not.  Brown, at this point, was having affairs with both Yakamoto and Kuykendall.

Retaliation Against Miller

Miller believed that because she had refused Yakamoto’s dinner invitations, Yakamoto began interfering with Miller’s ability to do her job.  Yakamoto countermanded Miller’s orders, reduced her supervisory duties, added onerous low-level duties on Miller, and made unwarranted criticisms and write-ups of Miller’s work.  When Miller threatened to report Yakamoto to Kuykendall, Yakamoto and Brown threatened to harm Miller.

Eventually Miller did report Yakamoto’s abuse to Kuykendall, who assured Miller that he “would look into it.”  Nothing ever happened.  Feeling that she had no where else to turn, Miller reported Kuykendall’s failure to control Yakamoto and all Kuykendall’s own affairs to Kuykendall’s supervisor, the Regional Director.

The Regional Director started an internal affairs investigation.  Miller was required to paticipate in interviews as part of the IA investigation, but she was promised confidentiality.  Soon after, however, it became apparent to Miller that Brown knew exactly what Miller had said during to the investigators.

Failure of Promised Confidentiality

Brown and Yakamoto again began retaliating against Miller; one time Brown screamed at Miller at work, then actually followed Miller home from work to continue screaming at her.

Miller, feeling that the stress was damaging her health, resigned from the Department.  Kuykendall retired.  Yakamoto was demoted and given another transfer.  Brown resigned with disciplinary charges pending against her.  About a year after resigning Miller filed a lawsuit against the Department of Corrections alleging sexual harassment and retaliation.

First Court Battles Lost

The trial court and the appeals court found against Miller, concluding that “a supervisor who grants favorable employment opportunities to a person with whom the supervisor is having a sexual affair does not, without more, commit sexual harassment toward other, nonfavored employees.”

The Supreme Court of California reversed both the trial court and the court of appeals, and instead found for Miller. The California Supreme Court reasoned that it was reasonable for Miller to believe that her employer was hostile toward women because of “widespread sexual favoritism.”

Signs of “Sexual Favoritism” You Should Watch For

The Court cautioned that “the presence of mere office gossip is insufficient to establish the
existence of widespread sexual favoritism,” but, enough evidence can be shown by such things as:

  1. Admissions by the participants concerning the nature of the relationships;
  2. [B]oasting by the favored women;
  3. Eyewitness accounts of incidents of public fondling;
  4. Repeated promotion despite lack of qualifications; and
  5. A supervisor’s admission that he/she cannot control a subordinate because of a sexual relationship with the subordinate.

Despite all of this, the Department of Corrections argued that Miller should not prevail, because this case would mean that courts were starting to regulate private consensual relationships, and the personal privacy of employees and employers alike should not be compromised.  The Department argued that it is better to treat sexual favoritism as a matter of personal preference, in order to avoid establishing a “civility code” governing the workplace.

The Court flatly rejected this argument, stating that “it is not the relationship, but its effect on
the workplace, that is relevant under the applicable legal standard”
(emphasis added).

If You Are a Victim of Sexual Favoritism

If you are the victim of sexual favoritism at work, don’t be afraid to print this case out and hand it to your H.R. person or any attorney that you are hoping will take your case.

You can download the full case of Miller v. Dept of Corrections with this link: http://bulk.resource.org/courts.gov/states/Cal/S114097.PDF

Although Miller was decided under California law, the California Supreme Court was persuaded by written regulations from the EEOC which apply to all of us, in all 50 states.  You might want to highlight that part for your HR person.  It starts on page 19.

Have you seen this in your own workplace?  I think I did — where young male attorneys could not get a break with influential senior partners who only wanted to work with young attractive female associates.

I think this is an area of the law that is ripe for expansion.  Let me know what you have seen in your own workplace, and I’ll tell you what else on the topic I can find.

-Curt K.

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Comments

  1. thao0136 says:

    What if your boos is having an affair with your co-worker… and he claims to give you a “lateral movement” and puts her into your position? Although there’s no pay change, but some of my responsibilities have decrease and I feel demoted? Is that legal for him to do that to me??

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