Boss is sleeping (around) on the job |

Boss is sleeping (around) on the job

Think you’ve got it bad where you work? Try working at the California Department of Corrections, where your boss is sleeping with practically everyone in the department but you, and when you complain you lose privileges while everyone else receives promotions.Prison lifeEdna Miller was a correctional officer at the California Department of Corrections. The chief deputy warden, Lewis Kuykendall, was having sexual affairs with his secretary, with the associate warden and with at least one other department employee. All at the same time – while he was married – not necessarily happily. Kuykendall, later warden, served on the employee promotion interview committee, and my what a surprise, all of his favorites were promoted. Kuykendall put his arms around employees and made “unwelcome groping gestures” with others. He was with his secretary when she was arrested for a DUI, which mysteriously was never investigatedAt times Kuykendall’s three women squabbled over him, creating stress in the office. I can imagine. At other times they bragged about their control over the warden. One said if she didn’t get a promotion she would “take him down” with her knowledge of “every scar on his body.”At one point Edna Miller complained to one of the women. She was then physically assaulted and held captive for two hours. Finally, an internal affairs investigation (appropriately named) uncovered the internal affairs and lots more. Kuykendall retired under fire and several other employees were demoted or transferred.Miller v. DepartmentEdna Miller sued corrections for a violation of the California Fair Employment and Housing Act and another dozen claims, including sexual discrimination, invasion of privacy, assault and battery, false imprisonment and intentional inflection of emotional distress. The act prohibits sexual harassment in the workplace, which may come in the form of a work environment that is hostile or abusive on the basis of sex.The trial court determined warden Kuykendall’s sexual favoritism did not constitute sexual discrimination or harassment. The court of appeal affirmed, concluding that a supervisor who grants favorable employment opportunities to a person with whom the supervisor is having a sexual affair does not, without more, commit sexual harassment toward other non-favored employees – like Edna Miller.Supreme court rulingThe California Supreme Court ruled unanimously last month that Edna Miller could take her case to a jury. Based on these egregious facts, how could they have ruled otherwise? The court wrote “We conclude that, although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as ‘sexual playthings’ or that the way for women to get ahead in the workplace is to engage in sexual conduct with her supervisors or the management.”My takeLegal commentators have called Edna Miller’s case “a sea change in the law,” in that before this case only the worker who had the affair or was the victim of unwanted sexual attention could prevail on a sexual harassment claim in California.There is an expression in the law that “Bad facts make bad law.” That’s what we have here. I believe the Miller case is appropriate given the egregious facts. I don’t think the ruling opens a flood gate of new harassment litigation.As the court wrote “Certainly, the presence of mere office gossip is insufficient to establish the existence of widespread sexual favoritism, but the evidence of such favoritism in the present case includes admissions by the participants concerning the nature of the relationships, boasting by the favored women, eyewitness accounts of incidents of public fondling, repeated promotion despite lack of qualifications, and Kuykendall’s admission he could not control [one of his employees] because of his sexual relationship with her – a matter confirmed by the department’s internal affairs report.”And that’s supposedly the good side of prison life.Jim Porter is an attorney with Porter • Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at or at the firm’s Web site,

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