David Kadue Quoted in Daily Labor Report

In the August 15, 2005 issue of the Daily Labor Report, David Kadue is quoted several times in an Analysis & Perspective piece on Sexual Harassment entitled "Paramour Problem: Will More Courts Deem Workplace Affairs 'Harassment' of Others?" that reviews the implications of the CA Supreme Court's decision regarding Miller v. Department of Corrections "that has created considerable controversy."

Asked whether an "untargeted" employee--one not personally harassed--may be considered to have been sexually harassed by the consensual affairs of others in the workplace, most courts, federal and state, have answered "no." But the California Supreme Court, interpreting the state's Fair Employment and Housing Act, has now answered "yes." Widespread sexual favoritism, even based on consensual relationships, can create a hostile environment for others in the workplace, the California court has ruled, in a case involving a prison warden who had consensual affairs with several female employees.

David notes: "This case absolutely will expand sexual discrimination litigation in California," David D. Kadue, of Seyfarth Shaw in Los Angeles, told BNA. Speaking of Miller v. Department of Corrs., Cal., No. S114097, 7/18/05 (138 DLR AA-1, 7/20/05) Kadue said: "It's a gift to the plaintiffs' bar." . . . Kadue, a management attorney, believes that courts are using discrimination law "as a tool for social change, to enforce sexual morality." For example, he maintains that cartoons or drawings, cited in the FEHA, affect both men and women and are not gender discrimination. "The same for dirty jokes and sexual horseplay," Kadue said. "They're inappropriate in the workplace, but are they unlawful?" . . . "Some cases are oversensationalized and overreported," Kadue said. "But this case is under-sensationalized and underreported. It creates a new dimension of risk for California employers." . . . But the California decision is novel in finding that consensual workplace affairs may create a hostile environment for other employees. In so ruling, the state high court has moved further than any other court in acknowledging the untargeted victim of harassment. Kadue said the Miller case thereby expands employers' risk. Management has always been concerned about workplace affairs between supervisors and subordinates, Kadue said. A "small minority" of employment handbook policies requires disclosure of office relationships, he said, and some companies require written acknowledgments by the parties that the affair is consensual, to avoid claims of quid pro quo harassment. "But Miller creates a new problem," Kadue said. An acknowledgment is a defense to a claim by a participant in the relationship, but it is no defense to claims by third parties, he said. The term "widespread sexual favoritism" used by the court is open to interpretation, Kadue added. "What does that mean? Two supervisors with one affair each, or one supervisor with two affairs, or what? It means whatever a jury says it means." "This particular aspect of EEOC guidelines is not standard law anywhere," Kadue noted. "In training sessions, you do caution people, but cautioning went beyond what the law required, at that time. Now the law has changed." Impact Beyond California: The California opinion may have an effect elsewhere as well, Kadue said. "Historically, California has always been a bellwether state, whose decisions influence other state supreme courts." The fact that the decision was unanimous adds to its impact, he observed.