Is Workplace Favoritism Towards A Supervisor’s Romantic Partner Sex Discrimination?

For the past two decades, our Marion County, Florida employment law attorneys have fought for the rights of employment discrimination victims. Through their extensive experience representing employment discrimination victims, our Ocala, Florida employment law lawyers know that employers exhibit favoritism towards a supervisor’s sexual or romantic partner over other employees. For example, an employer passes over male employees for promotion in favor of a female employee who had an affair with her supervisor. An inherent issue that arises when an employer exhibits preferential treatment towards a supervisor’s sexual or romantic partner is whether the preferential treatment is a form of unlawful sex discrimination against other employees. In this article, our Marion County, Florida employment law attorneys explain how the recent decision in Maner v. Dignity Health, (9th Cir. 2021) demonstrates that discrimination motivated by an employer’s preferential treatment of a supervisor’s sexual or romantic partner is not sex discrimination in violation of federal employment discrimination law.

Sex Discrimination Lawsuit

In that case, a man named Maner brought a sex discrimination lawsuit against his former employer, Dignity Health, pursuant to Title VII of the Civil Rights Act of 1964 (Title VII). Title VII prohibits employers from discriminating against employees on the basis of sex. Maner claims that Dignity Health discriminated against him on the basis of sex in violation of Title VII by giving preferential treatment towards a female employee involved in a romantic relationship a supervisor.

Maner worked as a biomedical design engineer in the obstetric laboratory of Dr. Robert Garfield for decades. Garfield’s lab depends on a steady stream of grant awards to fund employee salaries and perform research. From 1999 to 2008, Garfield’s lab operated out of the University of Texas Medical Branch. Maner’s coworkers included Dr. Dong, a male researcher, and Dr. Shi, a female researcher. Shortly after joining the lab, Maner learned that Garfield and Shi were engaged in a long-term romantic relationship that began as a workplace affair while Garfield was married to another woman. Garfield and Shi lived together and occasionally demonstrated physical affection at workplace events.

Favoritism Towards Romantic Partner

In January 2008, Garfield decided to relocate the lab to an installation operated by Dignity Health in Arizona. Maner retained his position after the move to Arizona. Shortly after the move, Garfield’s lab soon began to suffer a decline in the grant funding used to fund employee salaries and research projects. In 2010, Garfield recommended that Dignity health eliminate Dong’s position to alleviate the lab’s funding shortage. Dong allegedly complained to Dignity Health officials about Garfield’s ongoing romantic relationship with Shi. After investigating the relationship, Dignity Health reassigned Shi to a different supervisor but allowed Shi to continue working the lab with Garfield.

On October 1, 2011, Dignity Health eliminated Maner’s position due to a poor performance review prepared by Garfield and the lab’s lack of funding. Maner claims that Dignity Health discriminated against him on the basis of sex by protecting Shi (a female employee) from the impacts of reduced lab funding because of her romantic relationship with Garfield by terminating Maner (a male employee). In other words, Maner maintains that Dignity Health exhibited preferential treatment towards Shi because she was Garfield’s romantic partner, and that preferential treatment was unlawful sex discrimination against him.

The trial court dismissed Maner’s sex discrimination claim. In doing so, the trial court ruled that Garfield’s romantic relationship and favoritism toward Shi did not constitute unlawful sex discrimination in violation of Title VII. On appeal, the Ninth Circuit affirmed that trial court’s decision and upheld the dismissal of Maner’s sex discrimination claim.

Romantic Favoritism Is Not Sex Discrimination

As framed by the Ninth Circuit, the threshold issue on appeal was whether “an employer who exhibits preferential treatment towards a supervisor’s sexual or romantic partner discriminates against other employees because of their sex.” In resolving this issue, the appellate court observed that “every” federal circuit court of appeals to consider the question has concluded that romantic favoritism of a supervisor’s sexual or romantic partner does not constitute sex discrimination against other employees under Title VII. In adopting this long line of decisions, the Ninth Circuit looked to the “all-purpose test” articulated by the U.S. Supreme Court in Bostock v. Clayton County, 140 S.Ct. 1731 (2020) for assessing whether an employment decision violated Title VII’s prohibition against sex discrimination. “To determine whether an employer discriminated based on sex in violation of Title VII,” the Bostock Court instructed courts to ask “if changing the employee’s sex would have yielded a different choice by the employer.”

Application of this “all-purpose test” in the romantic favoritism scenario, the Ninth Circuit concluded, “the answer is no.” The answer is “no” because the “employer discriminates in favor of a supervisor’s romantic or sexual partner and against all other employees because they are not the favored paramour, no matter the sex of the paramour or of the complaining employees.” “Changing the sex of the complaining employees would not yield a different choice by the employer,” the appellate court explained, “because the identity of the favored paramour would remain the same.” Indeed, “the motive behind the [employment decision] is the supervisor’s special relationship with the paramour, not any protected characteristics of the disfavored employee.” Thus, although “workplace favoritism towards a supervisor’s sexual or romantic partner is certainly unfair to similarly situated employees and more than likely harms morale,” the Ninth Circuit concluded, such workplace favoritism does not violate “Title VII’s prohibition on sex discrimination.”

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Ocala, FL Employment Law Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our employment law attorneys in Marion County, Florida have litigated employment discrimination cases in Florida courts for more than twenty years. If you have experienced workplace discrimination or have questions about your rights under federal employment discrimination law, please contact our office for a free consultation with our employment law lawyers in Marion County, Florida. Our employee rights law firm takes employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.