Case Puts Spotlight on Office Affairs

The Valley State Prison for Women in Chowchilla was hardly a typical workplace in 1999: Warden Lewis Kuykendall was sleeping with at least three female staffers. He fondled one of them in front of others at office parties and promoted another over more-qualified women.

But a state Supreme Court ruling in a case that resulted from this behavior -- described by the justices in an opinion issued last week -- could change life in even the most sedate offices, say lawyers and employment experts.

The court concluded that two female guards who were not subject to Kuykendall’s flagrant attention and were passed over for promotion had grounds to sue. The ruling effectively expanded the state’s definition of a hostile work environment.

For some advocates of working women, the opinion was a victory in the battle against sexual harassment.

“I think it’s a good decision, and it will clearly have an impact on other places of employment,” said Melissa Josephs, director of equal opportunity policy for Women Employed, a Chicago-based advocacy group. “Employers should be proactive and discourage those [superior-subordinate] relationships.”

Yet lawyers for many employers say the decision will force businesses to pay attention to something they would rather not acknowledge: office affairs.

The decision “ratchets up the risk of workplace romance” for employers, said Joe Beachboard, a Los Angeles lawyer who conducts anti-harassment training sessions for many local companies. “It wouldn’t surprise me if more employers ban supervisors from dating subordinates or other employees,” he said.

That could mean bucking a powerful trend, said USC psychology professor Jerold Jellison. “New rules about dating will have the effect of suppressing those kinds of relationships -- for about three to six months,” he said. “Then human nature being what it is, they’ll reappear.”

No definitive data chronicle workplace relationships. But in a survey of workers in February by Vault, a business information service, 58% of respondents said they had been involved in an office romance, up from 46% two years ago. In a similar survey by Vault in 2001, 28% of respondents admitted dating a subordinate and an additional 23% were willing to do so.

“A substantial proportion of employees these days do date and even wed their co-workers,” said Sanford Jacoby, a UCLA Anderson School of Management professor. “The workplace is now and has always been where romances blossom and people find each other.”

Like Jellison, Jacoby said the state Supreme Court decision probably would make life more complicated for HR directors -- and for workers as well.

“This ruling will create all kinds of problems for employers trying to police their employees and for their employees who find themselves in an uncomfortable situation,” Jacoby said.

“If the workplace is removed as a potential mating site, it will put tremendous pressure on a portion of the population for whom the workplace has been a natural place for finding mates,” he said. “How employers will enforce this is just beyond me.”

The case stirring all the concern was filed in 1999 by Edna Miller and Frances Mackey, who were guards at the women’s prison north of Fresno and claimed that Kuykendall’s favoritism toward employees with whom he was sexually involved -- and the flagrant nature of those relationships -- constituted sexual harassment.

Overturning two lower court rulings, the Supreme Court unanimously agreed.

“Although an isolated instance of favoritism ... ordinarily would not constitute sexual harassment,” the justices held, “when [it] 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.”

Miller has retired, and Mackey died after the case was filed. Last week’s Supreme Court decision sent the suit back to the trial court for a final resolution.

The case is not the only recent public controversy stemming from an affair between superior and subordinate. Earlier this year, Boeing Co.’s board of directors forced out Chief Executive Harry C. Stonecipher over a consensual extramarital affair with an employee.

And the dean of the UC Berkeley law school resigned nearly three years ago after a former law student alleged sexual harassment. His resignation prompted the university to adopt a policy barring dating between professors and students.

Despite these high-profile incidents, most companies do not bar relationships -- in part because employers are squeamish about policing private lives. Moreover, absent a compelling business reason, managers who pry into relationships could face invasion-of-privacy claims.

The Society of Human Resource Managers found that 20% of companies surveyed in 2001 had written policies regulating office romances.

Managers worry most about affairs between supervisors and subordinates because of their potential for favoritism and abuse. At many companies, personnel directors encourage one or both parties in such a relationship to take another assignment within the company.

One company that takes a harder line than most is United Parcel Service Inc. When a supervisor learns of a romance between an employee and his or her subordinate, according to a UPS spokeswoman, managers “take steps to ensure the relationship is discontinued ... or one of the participants leaves the company.” Such terminations have occurred, she said.

Many lawyers and consultants predict that fear of legal exposure after Monday’s decision is likely to make this tough line more commonplace.

San Francisco attorney Barbara Lawless, who represented Miller and Mackey, called the decision “a wonderful protection” for all workers, saying that men as well as women are hurt when male bosses promote less-qualified female subordinates with whom they are romantically involved.

But she worries that some personnel directors may overreact. The ruling, she insists, is limited because it expands only the definition of a hostile work environment.

Colleen Regan, a Santa Monica lawyer who represents employers, agreed, pointing out that state and federal law already allowed anyone to sue over sexual harassment “if it interferes with their ability to work.”

For example, repeated sexual joking between co-workers or Howard Stern constantly blaring on an office radio might be grounds for a suit if it makes someone uncomfortable, she said.

Until Monday, however, the state Supreme Court had yet to make a clear statement on whether a boss who shows obvious favoritism toward one employee creates a hostile work environment for other employees. Lower courts in California had issued conflicting rulings.

“That’s what this case stands for,” said Pasadena lawyer Dan Stormer, who has won several high-profile sexual harassment suits. “It is stating the obvious -- but there was no clear statement until now.”