The California Supreme Court has finally outdone itself.
Last month, the court drastically expanded the scope of sexual harassment jurisprudence by ruling that consensual relationships between an employer and an employee can qualify as actionable sexual harassment – against other employees in the office.
The lawsuit Miller v. Department of Corrections was filed by two female former women’s prison officials who claimed the (male) warden showed favoritism toward female employees with whom he was having sexual affairs. That, combined with jealous public quarreling over the warden’s affections by his various lovers, allegedly created a “hostile environment” for the plaintiffs that was tantamount to sexual harassment. I understand that Michael Douglas, Sharon Stone and Demi Moore will be starring in a bad B movie about the case – “The Warden and the Sexy Sylphs of Cellblock Six”.
In overruling two lower courts that had dismissed the charges, the California Supreme Court allowed for an unspecified number of “isolated” instances of sexual favoritism in a workplace. But if the favoritism becomes “sufficiently widespread,” then an employee can sue for sexual harassment damages stemming from the resulting hostile environment.
One thing can be said for California’s judges – they’re not lazy. Since “sufficiently widespread” is a subjective term, the judicial system has guaranteed itself a virtually infinite number of future harassment cases, as disgruntled employees can hardly be expected to refrain from taking a shot at the jackpot of a sexual harassment verdict if they know of any office relationships involving their boss.
In light of the ruling, lawyers are already advising employers to adopt “non-fraternization” policies between managers and employees and to have employees sign “love contracts” testifying that they are aware of the firm’s sexual harassment regulations in case they can’t resist from engaging in some extracurricular activities with their co-workers or superiors. (Unfortunately, I cannot claim credit for the hilarious moniker “love contract” – that’s what they’re actually called.)
This totalitarian creep of harassment jurisprudence has been evident for some time as the grounds for harassment lawsuits become increasingly ludicrous. Last year, a California appeals court (when did Californians become so sensitive?) ruled that a writer’s assistant for the sitcom Friends could sue Warner Brothers for the sexual harassment she allegedly endured as a result of listening to the writers tell each other off-color jokes while developing storylines. More recently, the Foundation for Individual Rights in Education has begun assisting the case of Jihad Daniel, an Islamic student and employee at New Jersey’s William Patterson University. The university convicted Daniel of “harassment” after he, in response to an e-mail from the school’s Women’s Studies Chairwoman advertising a viewing of a lesbian film, denounced such films as “perversions.” The resort to such frivolous litigation by the Women’s Studies Department has had the miraculous consequence of provoking conservative organizations to line up in defense of an Islamic fundamentalist named “Jihad.”
The ineluctable trend is toward ever further state and corporate intrusions into private relationships and ever more severe penalties meted out for increasingly trivial acts of alleged harassment. What we see in the new Miller case is the invasion of corporate America by the kind of harassment culture propagated by America’s radical Women’s Studies mafia. Today an off-color joke, questionable relationship, or a politically incorrect statement about lesbian films will get you sued and disciplined. Tomorrow you smile wrong at a co-worker and the Godmothers of sexual harassment will take you out fishing with Fredo.
What perpetuates this situation is the vagueness of harassment laws which keeps the bounds of legal conduct uncertain enough that the jurisprudence is often decided on a purely ad hoc basis by a court or, in academia, a judicial review board. Legal imprecision has always been the engine that has propelled the unrelenting advance of harassment suits. The “hostile environment” clause was originally quite narrowly defined, but it has now become such a nebulous concept that it provides the key to prosecuting cases in which the actual act of harassment is indirect – or as in the Miller case, totally nonexistent.
What exactly constitutes a hostile environment? In my marriage, it’s what I face when I come home late from the bar. Can I sue? It just might be possible in California.