The Verdict is Unanimous on Sexual Harassment in California

The Verdict is Unanimous on Sexual Harassment in California

by Corie Lynn Rosen, December 2009

Today's labor market is demanding of its employees, as any working person can attest. Office workers who put in between 9 and 12 hours each day generally find that they spend more time at work than any place else. It should not be surprising that many people date, and sometimes even marry, people they meet at or through work.

Of course, there is a fine line between flirtation and sexual harassment. The former can be an exciting and enjoyable way for two people to let each other know that they share a mutual romantic interest. The latter is a complicated and serious issue costing companies heaps of money and employees hard-earned reputations. In California, sexual harassment just became a whole lot more complicated.

In a much-anticipated decision, the California Supreme Court has just added a new component to the existing sexual harassment law. Prior to the decision in the long awaited Miller v. Department of Corrections handed down on July 18, 2005, California sexual harassment law allowed only parties with an unwanted sexual advance grievance to sue. In other words, if two employees engage in a sexual relationship, no one outside that relationship could bring a lawsuit against either party.

The new decision changes that rule. When a subordinate employee has a sexual or romantic relationship with a superior, co-workers of the subordinate can sue if the superior employee shows favoritism to his or her love interest. The idea behind the new law is to create a legal cause of action for employees whose work environment is made hostile because of a sexual relationship between two other people.

According to the new law, an environment may be hostile when "sexual favoritism" makes the workplace more difficult for employees not involved in the relationship. If the preference given to a subordinate is based on favor arising out of a romantic relationship, and if the favoritism is to the detriment of the otherwise similarly situated employees, those other employees may now sue.

This is the first time California will recognize a cause of action under the California Fair Employment and Housing Act for an employee when no objectionable action is directed at that employee. The new requirements come just in time for employers who have yet to comply with Governor Schwazenegger's AB 1825 law. That law, signed into effect in September, requires all companies employing fifty or more people to administer special, anti-sexual harassment training for any employee with a supervisory role. All California companies meeting the fifty employee requirement must provide the training by January 1, 2006. Thereafter, training must be administered to all new supervisors no more than six months after assuming a new position. After the initial training, employees must be retrained once every two years.

Companies need to bring their training programs up-to-date and include the new law in their training programs. That way, potential lawsuits, even where the parties in the relationship have consented to their relationship, can be headed off at the pass. Employers beware: the new California law means many more employees than ever before may have a reason to sue under a sexual harassment claim.