When I lectured on sex discrimination and harassment to my law school students, I’d pose the following question: “does the person who didn’t (consensually) date the boss and who then didn’t get promoted have a claim for discrimination or harassment? No? But what if I just never got the chance to date them? I mean, I would have been willing to do so if I’d known that might help me advance or keep my job.” While some students looked confused, then answer was then, and continues to be, “no.”
Joining the Second, Fourth, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits, and with a tip of the hat to the EEOC’s guidance on the subject, the Ninth Circuit recently held in a case of first impression in that Circuit that “paramour preference” is not sex discrimination under Title VII. Maner v. Dignity Health, 2021 U.S. App. LEXIS 24923 (9th Cir. Aug. 20, 2021).
The facts of Maner are not particularly important. Briefly, Maner complained that he suffered discrimination and then a retaliatory termination because he complained that his boss was treating an employee with whom he [the boss] was romantically involved more favorably than the boss was treating Maner. The question posed in the Ninth Circuit, on appeal from a grant of summary judgment to the employer, was whether the boss’s preference for a his “special friend” was illegal sex discrimination. The EEOC’s “Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism,” EEOC Notice No. 915-048 (Jan. 12, 1990)) distinguishes “paramour preference” claims from quid pro quosexual harassment and hostile work environment claims and has long held that such actions do not invoke Title VII’s protections. Every appellate court that has considered the issue has reached the same conclusion.
Unlike decisions from other appellate courts, the Ninth Circuit had the benefit of relying on the Supreme Court’s recent interpretation of Title VII in Bostock v. Clayton County, ___ U.S. ___, 140 S. Ct. 1731 (2020). That June 2020 ruling that extended the protections of Title VII to gay and transgender individuals. The Bostock analysis requires a court to look at how someone of the other sex would be treated in the same circumstance: if it wouldn’t change the outcome, it’s not a Title VII violation. As such, the Maner court said, its analysis “begins, and pretty much ends” with Bostock.
When “[c]hanging the sex of the complaining employees would not yield a different choice by the employer because the identity of the favored paramour would remain the same,” there’s no sex discrimination that violates Title VII. Here, it was not the sex of the plaintiff that mattered; it was the romantic relationship the supervisor had with another employee. It didn’t matter whether Maner was male, female, or nonbinary. Maner’s retaliation claim likewise failed because he had not complained of something protected by Title VII, and therefore did not engage in protected activity even if he did raise his concerns in good faith.
What’s the takeaway here? To be clear, even though there’s no Title VII violation with “paramour preference,” the conduct should not be considered in any circumstance a business “best practice.” Just because you can, doesn’t mean you should. Most employers have policies that forbid employees from supervising those with whom they are engaged in a romantic relationship. And that is a best practice.