Preferential Treatment
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PREFERENTIAL TREATMENT

Employers can be liable for sexual harassment even when the complaining employee was never propositioned, touched or subjected to sexual images or comments. Employees may sue their employers for sexual harassment if their employment is affected by an office romance between their supervisor and a fellow employee.

In the case of Miller v. Department of Corrections, a supervisor engaged in simultaneous consensual sexual relationships with three female subordinate employees. The supervisor granted employment benefits to the three women based upon sexual favors, while denying promotions and benefits to other (more qualified) employees. Two employees who were passed over for promotions and job opportunities filed a lawsuit against their employer for sexual harassment. The plaintiffs argued that, even though they were never propositioned by the supervisor, and although the supervisor's sexual relationships were consensual, the employer nevertheless should be held legally liable for creating a hostile work environment. The Supreme Court agreed, explaining that:

although 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 by engaging in sexual conduct with their supervisors or the management.

To protect against potential liability, associations and management companies should consider workplace rules that either (i) require disclosure of a supervisor's workplace romances or (ii) prohibit dating or any kind of sexual contact between supervisors and subordinates, whether on duty or off. Despite limits on employers' ability to regulate employees' off-duty conduct and California's Constitutional privacy rights, at least one California Court of Appeals has approved such prohibitions.

At a minimum, associations and management companies should:
  • adopt policies prohibiting favoritism, or perceived favoritism, based upon off-duty sexual or romantic relations;

  • train managers to avoid actual or perceived favoritism among employees; and

  • investigate any allegations of favoritism, just as they would any other sexual harassment complaint.
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