Favoritism Due to Consensual Romantic Relationships is not Actionable Discrimination and can not Support Claim of Unlawful Retaliation

July 1, 2003

By: Barbara L. McCully

In Mackey v. Department of Corrections, 105 Cal.App.4th 945 (2003), two female correctional officers claimed that they were denied promotions and were otherwise discriminated against and subject to a sexually hostile environment primarily because the male warden had a romantic relationship with some of his female subordinates. They also alleged that they were retaliated against when they reported this conduct to the Department of Corrections during an internal affairs investigation. The trial court granted defendants' motion for summary judgment and the appellate court affirmed.

Plaintiffs had urged that they were discriminated against and harassed in violation of the Fair Employment and Housing Act ("FEHA") because promotions and better management work assignments were given to women who agreed to perform sexual favors for their superiors. They claimed that (1) such conduct was particularly egregious because (a) it took place in a "paramilitary" institution which prohibited sexual relationships between superiors and subordinates and (b) the relationships in question involved the highest ranking superiors, (2) the warden unfairly promoted the women with whom he was involved, (3) the affairs made other women at the institution feel disgusted and angry, (4) women were made to feel that the only way to get ahead was to submit to the sexual desires of the warden, and (5) plaintiffs were mistreated for reporting the affairs to the Department of Corrections.

The appellate court held that a co-worker's romantic involvement with a superior does not, alone, create a sexually hostile work environment. It further found that because the evidence showed (1) that the warden's relationships with his subordinates were consensual, (2) that he did not "flaunt" the relationships or attempt to use them gain advantage over other female employees, and (3) that plaintiffs, themselves, were not subject to unwanted sexual advances or treated any differently than male employees, plaintiffs had not made out a case for sexual discrimination/harassment.

The court further held that, although a retaliation claim may lie even where the underlying discrimination claim fails, plaintiffs, nonetheless did not engage in a protected activity because the evidence did not reflect that plaintiffs had made a report of sexual harassment that was directed at them.

Specifically, the court found that plaintiffs' "complaints" were not about sexual harassment but "unfairness" as signified by promotions and other benefits given to paramours and the resulting mistreatment of them by those paramours. Accordingly, plaintiffs' complaints were not protected activity under FEHA.