Incorporating Miller Into The Workplace

In Miller v. Department of Corrections, the California Supreme Court reminds employers that romantic involvements between supervisors and subordinates may give rise to claims of sexual harassment, discrimination and retaliation by employees other than the subordinate "paramour." The case, however, presented an extreme set of facts. The supervisor was engaged not just in one romance with a subordinate, but in three - simultaneously. The affairs were not just open and obvious, but were flaunted in the work place. There were public displays of "affection" at work functions. The paramours received undeserved promotions and other benefits, were not disciplined for abusive behavior towards coworkers, displayed and boasted about the relationships and their influence over the supervisor. The workplace was highly "sexualized" and the hostility - particularly by the paramours towards offended coworkers - was palpable.

So, what is an employer to do in Miller's wake?

• Consider policies precluding supervisorial/reporting relationships between family members as well as employees engaged in intimate personal relationships. These sorts of policies require careful legal review; employers must be sure that the policies not violate constitutional privacy rights and must avoid the burden of such policies falling disproportionately upon women, who are more frequently the subordinate employees in these situations.


• Instill a high consciousness regarding the potential offensiveness and seriousness of "sexualizing" the work place - particularly among supervisors, who need to understand that they may be personally liable for offending conduct along with employers. Sexual harassment training is necessary, but not always sufficient with respect to individual supervisors. Remember, the Miller result was not so much a function of the fact of supervisor/subordinate affairs - but rather a function of the impact such relationships had upon other employees.


• Be alert to the need for discreet investigative and other liability-avoiding measures in the event a supervisor/subordinate romantic involvement is believed to be occurring. Discretion and tact are key: employees have privacy rights - and not all rumors are true. A heavy-handed investigation into an employee's sex life could result in a more dangerous claim than the suspected supervisor/subordinate romance that prompts the employer's concern.

We are, of course, available for policy creation and review, training, counseling, and investigation. For more information, call Rick Levine at (415) 391-8177 or send us an email.