Title VII Does Not Prohibit Paramour Preferences


Although noting that, “[w]orkplace favoritism toward a supervisor’s sexual or romantic partner is certainly unfair to similarly situated workers and more than likely harms morale,” the U.S. Court of Appeals for the Ninth Circuit joined its sister circuits in holding that Title VII’s prohibition on sex discrimination does not encompass preferential treatment toward a supervisor’s sexual or romantic partner.

Background of the Case. In Maner v. Dignity Health, the head of a laboratory was involved in a long-term affair with one of his subordinates. He took her to conferences to which other employees were not invited and gave her greater opportunities for publications. After a complaint by another employee, she was technically reassigned to another supervisor but continued to work in the same lab. Subsequently, the position of a male employee, who had poor performance, was eliminated due to reduced funding for the lab. He sued, alleging sex discrimination based on a “paramour preference” theory, which posits that an employer violates Title VII “whenever a supervisor’s relationship with a sexual or romantic partner results in an adverse employment action against another employee.”

The Court’s Opinion. The Ninth Circuit flatly rejected the paramour preference theory. Although Title VII prohibits discrimination based on an individual’s sex, the Ninth Circuit quoted a leading case from the Second Circuit that “sex logically could only refer to membership in a class delineated by gender and that …  [in a paramour preference case,] male plaintiffs faced exactly the same predicament as that faced by any woman applicant for the promotion: No one but [the paramour] could be considered for the appointment.” This rationale has also been adopted by the Fourth, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits. Moreover, as the Ninth Circuit noted, the Equal Employment Opportunity Commission has issued guidance that “Title VII does not prohibit isolated instances of preferential treatment based upon consensual romantic relationships,” since such treatment, although unfair, disadvantages both males and females equally.

The Ninth Circuit also relied upon the Supreme Court’s decision in Bostock v. Clayton County, Georgia (discussed in our June 15, 2020 E-lert), which set forth what the Ninth Circuit described as an “all-purpose test for assessing whether an adverse employment decision violated Title VII” as follows:

If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer— a statutory violation has occurred.

In a paramour preference context, changing the sex of the plaintiff would make no difference – “The motive behind the adverse employment action is the supervisor’s special relationship with the paramour, not any protected characteristics of the disfavored employees.”

The Ninth Circuit also rejected the male employee’s argument that “sex” necessarily encompasses sexual activity. The plain meaning of the term as used in the statute is a characteristic that an individual “personally owns or possesses,” and not an activity in which multiple individuals engage. Somewhat facetiously, the Ninth Circuit compared the term to Title VII’s similar protections for “race,” noting that the term refers to an individual’s membership in a class, and not participation in an athletic event.

Lessons for Employers. Although this case is good news in that the court refused to expand the scope of sex discrimination claims, wise employers should not ignore workplace romances between a manager and their subordinate. While paramour preferences do not violate Title VII, they can create workplace morale issues, as the Ninth Circuit noted. Moreover, employers should always be sensitive to possible claims of sexual harassment by the subordinate paramour, who might later claim that they were pressured into a romantic or sexual relationship by their manager.