But what if the supervisor is having more than one consensual affair? The plaintiffs were two former employees of the Valley State Prison for Women.Or, what if more than one supervisor is having a consensual affair? The issue before the California Supreme Court was whether the lower court’s grant of summary judgment in favor of the defendants was proper.Think of it this way: Consensual sexual relationships are no different from any other kind of environmental harassment.

Nevertheless, the California Supreme Court recently ruled in Miller v. Subordinate says, “I’m busy.” Supervisor hears, “Ask me another time,” so supervisor asks again.

Department of Corrections, S114097 (2005), that completely consensual workplace romances can create a hostile work environment for others in the workplace. Problem: Subordinate means “I’d rather die.” Take 3. Subordinate says, “No.” Supervisor does not ask again.

After all, the EEOC guidelines it cites are not new, and the decision itself is binding only in California.

On the other hand, the decision is one of the first cases in which a court has adopted the EEOC’s theory on widespread sexual favoritism, and it has garnered significant media attention.

Picture the Problems Here’s a series of snapshots exposing the risks of dating, or attempts at dating, between a supervisor and a subordinate: Take 1. There’s no question that the relationship is entirely welcome.

Problem: No problem, so long as the consensual affair is isolated. Nightmare It’s hard to imagine worse allegations than those set forth in Miller.

Rather, the top dog was having affairs with three different women.

Miller and Beyond On the one hand, it’s important not to overstate the significance of Miller.

For workplace sexual conduct to constitute prohibited sexual harassment, it generally must be unwelcome.

If it’s welcome, the conduct still may be inappropriate for the workplace, but usually it’s not unlawful.

The EEOC’s analysis has been applied in numerous cases holding that an isolated instance of paramour preference is not unlawful. Westchester County Medical Center, 807 F.2d 304 (1986), for example, the 2nd U. Circuit Court of Appeals found “no justification for defining ‘sex,’ for Title VII purposes, so broadly as to include an ongoing, voluntary romantic engagement.” More recently, in Wilson v. The second exception is a situation where sexual favoritism is so widespread that the implied message is that women (or men) are “sexual playthings.” Conveying that message can create a hostile work environment for women and men alike.