Articles by McGrigors
09 August 2005
End of the line for improper favours
by Murray McCall
(Published The Scotsman)
Sex discrimination law in the US has taken a new turn after a Californian Supreme Court found in favour of two female officers at a women's prison who claimed that by not being the subject of sexual advances from their male boss - who had simultaneous affairs with three other employees who then gained promotions and work privileges - they were being harassed.
The court noted widespread favouritism can create a hostile environment where women may feel they have to demean themselves by becoming "sexual playthings" in order to get ahead at work. While interpreting California state law, the court also took note of policy guidance from the Equal Employment Opportunity Commission on employer liability for sexual favouritism. New York employment lawyer Johan Lubbe, a partner at Jackson Lewis LLP, says: "The decision is no surprise, as the EEOC has cautioned employers that 'widespread favouritism' may create an actionable hostile workplace claim for disadvantaged co-workers. This is the first time the right set of facts made it to court."
Under US law, employers are typically strictly liable for conduct of their supervisors. As a result, Lubbe cautioned UK companies with facilities in the US to ensure both training programmes for supervisors and anti-nepotism policies also cover favouritism at work. If the facts as found in this case were established in a UK employment tribunal, there is a good chance an aggrieved employee who did not submit to a boss's sexual advances - and even those who had never been asked to - could bring a successful claim for sex discrimination. For example, where a boss only promoted women prepared to sleep with him, men could advance a claim of sex discrimination. Furthermore, female co-workers could also be successful if a boss treated male candidates for promotion on their merits but favoured only those female candidates who would sleep with him.
Changes to the definition of sexual harassment come into effect here on 1 October 2005. It is arguable this area of the law in the UK will be even more advanced than in California - and elsewhere in the USA. Not only will the new definition include verbal, non-verbal or physical conduct of a sexual nature which violates dignity or creates an intimidating, hostile, degrading, humiliating or offensive atmosphere in the workplace, but it will also cover less favourable treatment for rejecting or submitting to the conduct.
The Californian case can be seen as a triumph for men and women, but different approaches to damages in the US and UK mean successful claims in the UK are unlikely to attract as high compensation as in the US. There, cases are often heard by juries who can not only to compensate employees for financial loss and hurt feelings but also to grant further "punitive" damages to teach employers a lesson.
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