Skip to content

Merit, not mating: AB 1229

Thursday, May 29, 2003

WHAT were they thinking? That’s the only question you can ask when you look at a California appellate court’s unanimous decision in a mind-boggling case regarding sexual harassment.

Earlier this year, three justices ruled that even if the boss had slept with three of his subordinates, and given them preferential treatment, other employees couldn’t make a claim of sexual harassment.

And even if that favoritism was common knowledge—indeed, bragged about by the boss’ “paramours”—that wasn’t enough to constitute a “hostile work environment.”

And even if there was a clear case of retaliation against those few employees who dared to complain, those who filed the complaints weren’t entitled to protection from retaliation, because there was no way in the world they could reasonably believe they had been victims of sexual harassment.

Well, if that’s the law in California, it shouldn’t be. And very soon, if the Legislature takes appropriate action, it clearly won’t be.

In Mackey v. Board of Corrections, the court ruled that sexual favoritism wasn’t sexual harassment based on gender; it was simply “unfair,” a function not of gender but of favored status as a “paramour” (as if the two were unrelated).

And, said the court, the problem wasn’t pervasive enough to constitute a hostile work environment, since there were only three subordinates in the workplace alleged to be sleeping with the boss (which does make you wonder just what level of activity is required before the problem becomes “pervasive”).

And one can only wonder how the court decided that the aggrieved employees could not reasonably have believed themselves (correctly or otherwise) to be making a sexual harassment claim, when the issue has been confusing enough to engender a hearing by the California Supreme Court, contrary analysis from legal commentators, and legislative action to cure the apparent ambiguity.

When career advancement is granted or denied based on sexual favors, that does a disservice to women and men in the workplace who are entitled to advancement based on merit.

When the daily work environment is rife with sexual opportunism, that’s clearly a hostile environment.

And when a man can retaliate, and then defend himself by asserting that no one could reasonably believe such behavior constituted sexual harassment, then workplace retaliation will be the order of the day.

That shouldn’t be the law; and hopefully, it soon won’t be. Assembly Bill 1229 sets the Mackey decision aside; and makes it clear in California that when an employer makes sexual favors the criteria for advancement, that’s sexual harassment. If the court can’t deduce that from existing law, we’ll make the law explicit.

Success in the workplace ought to be about merit, not mating. That’s what AB 1229 is all about.


Assemblyman Joe Simitian, D-Palo Alto, is the author of Assembly Bill 1229.