170 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 6.5.10 Special privacy protections for plaintiffs California courts have prevented defendants in harassment litigation from inquiring into a plaintiff’s victimization by prior sexual assaults,177 marital difficulties,178 and sexual conduct with persons other than those for whose behavior the plaintiff seeks to hold the defendant liable.179 6.5.11 Sexual favoritism Unlike federal law, California law dictates that sexual "favoritism” can be a basis for claims of sexual harassment. For purposes of federal law, the U.S. Supreme Court has explained that the “critical issue” in a sexual harassment case is “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed,” and that harassment laws are not intended to create a “civility code.”180 Federal law thus contemplates actionable sexual harassment as involving unwelcome conduct directed at the victim on the basis of the victim’s gender. Under this law, mere objections to unwelcome conduct involving others would not occasion a sexual harassment suit. But in California it’s different. In Miller v. Department of Corrections,181 the California Supreme Court recognized a claim for sexual harassment even though the plaintiffs themselves had never experienced disparate treatment on the basis of their gender. Miller thus permitted two women to sue under the FEHA on the basis that their boss had created a sexually hostile work environment for them by giving unwarranted favoritism to his female lovers. Neither plaintiff claimed that she had been treated worse than men in the workplace or that she had been treated badly because she was a woman. Neither woman received an unwelcome sexual advance and no man had directed any hostile conduct at her. Rather, the women were “sexually harassed” only in the sense that each was offended by seeing other women obtain preferential treatment through sexual cooperation with the boss. Nonetheless, Miller held that employer liability could exist on the theory that sexual favoritism within a workplace can be “sufficiently widespread” to convey the “message” that management views women as “sexual playthings” or that the way to get ahead is to sleep with the boss.182 Miller erroneously stated that it was following federal legal authority in the form of a 1990 EEOC policy guidance. Actually, a guidance is not federal authority but rather is simply the EEOC’s litigation position, adopted without the benefit of the notice-and-comment process required by administrative rule-making. Miller nonetheless quoted, with evident approval, the EEOC’s argument for greater employer liability: “If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment … regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors. In these circumstances, a message is implicitly conveyed that the managers view women as ‘sexual playthings,’ thereby creating an atmosphere that is demeaning to women.”183 Miller thus reasoned “that even in the absence of coercive behavior, certain conduct creates a work atmosphere so demeaning to women that it constitutes an actionable hostile work environment.”184 6.5.12 Sexual desire not necessary to prove sexual harassment The California Legislature has amended FEHA to clarify that sexual harassment is prohibited without regard to the harasser’s sexual desire.185 The amendment overturned an appellate court decision that “created confusion” by holding that a plaintiff in a same-sex harassment case must prove that the harasser harbored a sexual desire for him.186 Thus, severe or pervasive sexually offensive conduct can create a hostile work environment, so long as the
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