By: Christina J. Fletcher
In today’s work-obsessed and job-focused culture with ever
increasing time being spent at work, office romances are
commonplace. Substantial risks can arise when those
relationships are between subordinates and supervisors. One
potential risk is sexual favoritism, which occurs when a supervisor
provides preferential job benefits to a subordinate with whom he is
having a sexual relationship. Recently, the California Supreme
Court in Miller v. Department of Corrections unanimously
held that consensual sexual relationships that result in favoritism
in the workplace may constitute sexual harassment of employees who
were not so favored. The media and legal community recognized
that Miller was “groundbreaking” in its proclamation that
a consensual sexual relationship between a boss and a subordinate
could create a sexual harassment claim for a separate group of
employees. However, this Comment argues that from the
viewpoint of a Title VII sexual harassment claimant, the narrow
analysis the Miller court used in arriving at its holding
was not at all “groundbreaking” and, in fact, creates numerous
barriers for victims of sexual favoritism. Further the Miller
court’s focus on the narrow guidelines issued by the EEOC as the
way in which a sexual favoritism claim should be analyzed
significantly disadvantages Title VII claimants.
This Comment explains that while the Miller court came
to the correct conclusion that sexual favoritism can be grounds for
an actionable hostile environment sexual harassment claim, the
court’s analysis of the issue and use of narrow EEOC guidelines in
arriving at that conclusion was not only unnecessary in light of
current sexual harassment jurisprudence but will likely be fatal to
Title VII plaintiffs if later courts follow Miller and similarly
analyze sexual favoritism claims. Thus, while Miller
is viewed by many as providing a new basis of relief for
plaintiffs, the road for such plaintiffs includes many
obstacles. This Comment explores these obstacles erected by
the Miller court’s analysis and provides a recommendation for
overcoming such barriers to sexual favoritism claims in the Title
VII arena.