HR Specialist: California Employment Law

California employers face more laws – and more chances to get sued – than in other states. Aggressive attorneys don’t stop with federal laws like FMLA, ADA and FLSA: they use state and local living-wage statutes, rural codes, plus discrimination and other laws to sue employers for sky’s-the-limit damages. This California-specific newsletter arrives monthly to help sue-proof every aspect of HR. Written in plain English, it’s your insurance policy for staying in step with current interpretations of state and local laws – and staying out of court. Learn more about HR Specialist: California Employment Law and the free report you’ll get when you subscribe...

by Howard L. Magee, Ogletree Deakins, Los Angeles

What do Microsoft’s Bill Gates and Steve Ballmer and AOL’s Steve Case have in common besides great high-tech wealth? They all met their wives at work.

While these were undoubtedly successful workplace romances, we have all seen or heard about office romances that turn sour, poison staff camaraderie and sometimes cause expensive sexual- harassment or retaliation lawsuits. While the public increasingly approves of consensual workplace romances, that acceptance has not translated into fewer legal concerns for employers.

Indeed, employers face an ever-more-difficult challenge to accommodate the changing social landscape at work. How should a company handle romance in the workplace? You can’t prevent every office romance, but you can manage them.

Romance no mystery

It’s no mystery why workplace romances flourish. Workers spend a third of their lives at work, with the rest of their time evenly split between nonwork activities and sleep. In fact, most workers spend more time with their colleagues than with their friends and family. A 2001 survey showed Americans logged an average of 1,979 hours at work each year, more than any other country surveyed. Work, in many respects, becomes an employee’s social outlet, making the workplace the obvious forum in which to find both friends and romantic partners.

In her book, Office Romance: Love, Power, and Sex in the Workplace, author Lisa A. Mainiero observes, “The modern-day office has taken the place of church, neighborhood, and family networks in bringing people together.”

Joseph D. Levesque writes in The Human Resource Problem-Solver’s Handbook: “Work-related interaction gives people the rather unsuspecting opportunity to get acquainted with another’s ideas, feelings, ambitions, interests, mannerisms, values, preferences, and personal habits—the very things we examine on a more conscious level when engaged in such mating rituals as dating.”

Some say workplace romances may improve office morale, stability, productivity and communication. Others warn that mixing business with pleasure is a recipe for disaster, not only for the couples involved but also for co-workers and the company at large. Regardless of which side of the debate your company chooses, understanding and dealing with the many issues surrounding romance in the workplace can greatly reduce the negative consequences.

Favoritism, discrimination, retaliation

A growing sector of workplace romance lawsuits consists of co-worker suits—or “paramour favoritism” claims—alleging employees suffered discrimination or retaliation due to a co-worker’s relationship with a supervisor.

The California Supreme Court’s recent decision in Miller v. Department of Corrections is just one example. In that case, a prison warden allegedly carried on romantic relationships with three female subordinates—at the same time. The plaintiff sued under the California Fair Employment and Housing Act (FEHA) and claimed the supervisor engaged in favoritism and preferential treatment of these women, which created a hostile work environment for other female employees.

The trial court, relying on established case law, dismissed the plaintiff’s claims. The California Supreme Court, however, reinstated the claims after concluding the plaintiff and another female employee, who was not asked for sexual favors, could recover damages because the warden promoted less-qualified women who had sexual intercourse with him.

The court found the warden’s conduct conveyed a demeaning message to female employees that they were “sexual playthings” and could advance only by engaging in sexual conduct with management. The court recognized that while consensual workplace affairs normally do not constitute sexual harassment for others in the workplace, actionable sexual harassment can occur when “sexual favoritism in a workplace is sufficiently widespread.”

Although the plaintiff filed suit under California’s state employment act, the justices relied heavily on the federal EEOC’s “Policy Guidance on Employer Liability under Title VII for Sexual Favoritism.” Issued in 1990, the guidance takes the position that an isolated instance of favoritism toward a paramour may not run afoul of Title VII, but widespread favoritism may constitute hostile environment harassment.

What employers should do

Employers are wise to take preventive steps in light of Miller. Although Miller was decided under California law, the court’s reliance on the EEOC’s policy means plaintiffs’ lawyers will try to apply Miller to Title VII and comparable state statutes. At least two plaintiffs have relied on Miller and brought lawsuits based on perceived sexual favoritism. Although both ultimately failed,  Miller reopened the question of how vigilant employers need to be in controlling office romance.

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Howard L. Magee is a shareholder with the Los Angeles office of Ogletree Deakins, where he represents management in labor and employment law matters. Reach him at (213) 239-9800 or at howard.magee@ogletreedeakins.com.