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Patrick, Esq.
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Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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A former employee has decided to leave the company after the

Resolved Question:

A former employee has decided to leave the company after the wife of the owner found romantic ecards sent by her husband to the assitant. It was apparently part of role playing and they were both sending love reponses by email to each other. Can the employee that quit her job that day file a lawsuit against her former employee? Apparently there was no touching or sex involved.
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 5 years ago.
Hello and thank you for entrusting me to answer your question.

California courts have recently held that ANY worker who loses a promotion to a colleague who is sleeping with the boss can sue their employer for sexual harassment in certain circumstances. Specifically, the California Supreme Court stated in Miller v. Department of Corrections:

"...although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as 'sexual playthings' or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or the management."

If you can prove that you were passed up for a promotion as a result of your boss's relationship, you may have a valid claim. Otherwise, the relationship, in itself, probably does not form the basis for legal action for other employees at the company.

I hope that this information helps and I wish you the best of luck.

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Customer: replied 5 years ago.
I don't think I asked the right question. There was no promotion that took place. The concern the wife has is the following: The employee who was having the email affair with the husband left the day the wife found out and confronted the husband and her. Can the former employee ever come back and say it was sexual harassment and possibly twist the truth?
Expert:  Patrick, Esq. replied 5 years ago.
Can they lie and try to twist the truth? Sure, but it will be another matter to actually prove their allegations.

What they would need to prove is that the boss engaged in sexual harassment, which takes one of two forms. The first form--quid pro quo harassment--would require the boss to condition continued employment or a promotion on sexual favors. The second--hostile work environment harassment--would require a showing of harassing conduct that is so severe or pervasive that it creates a hostile work environment.

The classic example of "hostile work environment" sexual harassment is that of a fire station which previously was devoid of women firefighters. A woman finally breaks the gender barrier, but when she reports for work at the station she is greeted by nude centerfolds on the lockers and in the lunch room. Pictures of nude women are not inherently discriminatory against women employees, but it is not hard to imagine that the woman firefighter might feel uncomfortable being surrounded by this objectification of women. The courts struggled with this situation for some time, because the facts did not involve the classic form of discrimination, where the woman suffers some form of adverse job action or failure to promote. The courts then came up with the reasonable idea that even in the absence of any objective discrimination, the very atmosphere of a workplace could be hostile to women and therefore discriminatory. Thus, an older employee who never suffers adverse job action can still claim discrimination if the company permits constant jokes about age, or a minority can sue for discrimination if racist cartoons are posted.

Unless a former employee can make either of the above described claims, he or she would not have a valid claim for harassment.

I hope this helps, and please remember to click "accept" so that I will get paid for my time. Thanks so much.
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