"Manager Affairs Didn't Create Hostile Working Environment"
by Richard S. Rosenberg and John J. Manier

In Mackey v. Department of Corrections, 2003 DJDAR 1128 (Cal.App. 3d Dist. Jan. 28, 2003), the Court of Appeal recently held that a manager's consensual affairs with several female employees did not create a sexually hostile work environment for other women. The court also ruled that the women's complaints about these sexual liaisons were not "protected activity" under the Fair Employment and Housing Act, Gov. Code Section 12940 et seq.

The result in Mackey follows from the California Supreme Court's holding that "sexual harassment ... is merely one form of sex discrimination." Rojo v. Kliger, 52 Cal.3d 65 (1990). This principle has proven to be a double-edged sword for employers and employees alike.

On the one hand, "[s]exual harassment does not necessarily involve sexual conduct." Accardi v. Superior Court, 17 Cal.App.4th 341 (1993). The sexually hostile environment alleged in Accardi included non-sexual conduct such as untrue rumors about the plaintiff's abilities and work performance, deliberately overburdening her with job assignments, and assigning her certain duties "only because she was a woman."

Conversely, a hostile work environment that is permeated with sexual conduct does not necessarily violate the law. The plaintiff still must prove that the harassment was based on his or her gender. In Mackey, plaintiffs Edna Miller and Frances Mackey failed to make this required showing.

The plaintiffs in Mackey were long-term employees of the Department of Corrections and worked most recently at the Valley State Prison for Women. In one memorandum, Mackey compared the work environment in this prison to "Peyton Place." This appears to have been an understatement.

Both plaintiffs suspected the prison warden, Lewis Kuykendall, of having sexual affairs with three or more female prison employees. Some of these women openly boasted of their influence over Kuykendall.

One of Kuykendall's paramours, Cagie Brown, was selected over Miller for two promotions, even though Miller clearly had superior qualifications and experience. Brown later was promoted to associate warden and became Miller's supervisor.

Brown reported to the chief deputy warden, Vicki Yamamoto, who also allegedly was having an affair with Kuykendall. In addition, Mackey suspected that Brown and Yamamoto were sexually involved with each other.

Brown and Yamamoto routinely took actions which undermined Mackey's and Miller's authority over their subordinate employees. Brown also berated Mackey in front of other employees, while both Brown and Yamamoto harassed Miller.

When Miller confronted Brown about the harassment and her relationship with Kuykendall, Brown told Miller to "either deal with it or just forget it." The two later had a physical confrontation in which Brown grabbed Miller's arm, shook her and pinned her against a cabinet. The plaintiffs reported this incident to Kuykendall, but he took no remedial action.

Although Miller was later promoted, Brown and Yamamoto continued to harass her. Brown told Kuykendall she intended to file a harassment claim because he had not remedied the situation. Kuykendall suggested that Brown was playing him against Yamamoto, and lamented that he should have picked Miller over Brown for the previous promotions.

The Department's Office of Internal Affairs ultimately investigated the conduct of Kuykendall, Brown and Yamamoto. Both plaintiffs were interviewed as part of the investigation and were assured that their statements would remain confidential.

However, Brown learned of the plaintiffs' participation in the investigation and harassed them about it. Yamamoto continued to interfere with Miller's work and undermine her authority over her subordinates.

Kuykendall and Yamamoto also rescinded accommodations Miller had been given for her sarcoidosis, a disability which substantially limited her ability to walk and move. Meanwhile, Mackey was given unfavorable job assignments and eventually resigned.

The plaintiffs asserted several claims against the department and the prison, but the only ones germane to the published portion of the appellate opinion were for sex discrimination, sexual harassment and retaliation. The trial court granted summary adjudication against the plaintiffs as to these claims, and the Court of Appeal affirmed.

The plaintiffs alleged that "defendants favored women who engaged in sexual relations with their superiors, and because plaintiffs did not do so they were treated differently." They also claimed their work environment was hostile because promotions were conditioned on sexual favors rather than qualifications.

In rejecting these claims, the Court of Appeal cited to one state court decision, Proksel v. Gattis, 41 Cal. App. 4th 1626 (1996), and several federal cases which have held that a co-employee's consensual affair with a supervisor does not by itself create a sexually hostile work environment.

The plaintiffs sought to distinguish these authorities by noting that Kuykendall had multiple sexual relationships, that his paramours received preferential treatment, and that Brown physically assaulted Miller. The plaintiffs cited to several federal district court cases which hold that such facts may form the basis of a sex discrimination claim.

However, the Court of Appeal noted that each of these federal decisions assumed that the plaintiff was being treated less favorably "because of her sex. In other words, a male employee would not have been denied the job benefit for failing to acquiesce in sexual advances."

The court also cited approvingly to dicta in cases which state that a sexual harassment claim may arise from a non-consensual affair, DeCintio v. Westchester County Med., 807 F.2d 304 (2d Cir. 1986), or in a work environment where "sexual discourse displaced standard business procedure in a way that prevented plaintiff from ... [being] evaluated on grounds other than her sexuality." Drinkwater v. Union Carbide Corp., 904 F.2d 853 (3d Cir. 1990).

In Mackey, however, there was no evidence that Kuykendall's affairs "were other than consensual," that Kuykendall "flaunted" these relationships, or that the paramours' "boasting" about the affairs took the form of sexual discussions in the workplace "or other [indiscreet] behavior." Nor were the plaintiffs treated differently than any male employees.

Thus, while the plaintiffs were victims of "unfair conduct," they did not show "a concerted pattern of harassment sufficiently pervasive to have altered the conditions of their employment on the basis of sex." The court therefore affirmed the summary dismissal of the plaintiffs' sex discrimination and harassment claims.

On the retaliation claims, the court stated that the plaintiffs must show that they engaged in a "protected activity" as part of their prima facie case. The court agreed with the plaintiffs that the protected activity issue "does not turn on whether they reported unlawful activity but whether they reasonably believed they were reporting unlawful activity."

However, the court held that the plaintiffs did not engage in protected activity under this standard, because none of their complaints arguably concerned sexual harassment or discrimination under the law. In particular, the plaintiffs did not complain that "they were being judged on their sexuality rather than on merit," or that they were propositioned by a supervisor or subjected to "unwanted sexual attention."

The court emphasized that this was not a case "where plaintiffs honestly, but mistakenly, believed they were engaging in protected activity by reporting sexual harassment." Instead, their complaints concerned perceived "unfairness." While the plaintiffs' complaints may have been justified, they did not constitute protected activity, as a matter of law.

At first glance, the court's rejection of the retaliation claims in Mackey is more surprising than its dismissal of the sexual harassment claims. Retaliation is easier to prove, particularly because a plaintiff can prevail either under the "reasonable belief" standard or by showing that the employer's conduct was actually unlawful. See Yanowitz v. L'Oreal USA, Inc., 2003 DJDAR 2698 (Cal. App. 1st Dist. Mar. 7, 2003) (plaintiff's refusal to implement sex-biased appearance standards was protected activity).

However, Mackey shows that an employee's "reasonable belief" cannot simply be retroactive. The reasonable belief must exist at the time the report is made, and before the lawsuit is filed. It also must be held by the employee, not merely his or her attorney. The absence of such evidence in Mackey was fatal to the the plaintiffs' claims.

Mackey also suggests that a distinction may exist between reasonable mistakes of fact and reasonable mistakes of law. Without question, an employee who makes allegations which, if true, would violate the job bias laws has engaged in protected activity, even if the employee is reasonably wrong on the facts.

However, the Mackey court assumed that the plaintiffs' factual assertions were true, but held that the conduct did not violate the Fair Employment and Housing Act. While the plaintiffs did not actually believe the actions they were reporting violated the job bias laws, the court did not specify whether such a mistake of law - even if "reasonable" - would have been enough to sustain their retaliation claims.

Although Mackey should be helpful to employers when litigating harassment and retaliation claims, employers would be well advised to avoid the type of conduct alleged in this case. Sexual favoritism is no way to run a business or a governmental entity, and it will inevitably increase the risk of litigation - whether meritorious or not.