Paramours and Promotions

Title VII of the Civil Rights Act of 1964 is the major federal anti-discrimination law and prohibits job bias on the basis or race, color, religion, national origin, or sex. The U.S. Equal Employment Opportunity Commission (EEOC), which administers Title VII, has issued a policy guidance stating that the statute does not prohibit isolated instances of preferential treatment based on consensual romantic relationships – “An isolated instance of favoritism to a 'paramour' (or a spouse, or a friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders.” EEOC Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism, Notice No. 915-048, sec. A (January 12, 1990), available at www.eeoc.gov/policy/docs/sexualfavor.html.)

The EEOC applied this principle in a 2001 federal sector case. In Paul v. General Services Administration, 2001 EEOPUB LEXIS 6076 (Appeal No. 01992256, August 16, 2001), the complainant, a physical security specialist who was not selected for a supervisory position, alleged the selectee was chosen because of her romantic relationship with an agency official. The EEOC found no unlawful discrimination because this was an isolated instance of preferential treatment based upon a consensual romantic relationship.

What the Courts Say

Federal and state courts have almost uniformly adopted the EEOC's position. The leading court decision on this matter (issued before the EEOC guidance) was decided in 1986. In DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2nd Cir. 1986), cert. denied, 484 U.S. 825 (1987), the plaintiffs were seven male respiratory therapists. Each therapist claimed he was discriminated against when the supervisor added an irrelevant requirement to the promotional job discrimination listing for Assistant Chief Respiratory Therapist. None of the seven men met the added requirement, but the woman with whom the supervisor was having a consensual romantic affair, did. The court found that sexual favoritism did not violate Title VII because the plaintiffs were not discriminated against because of their gender; “rather, they were discriminated against because [the supervisor] preferred his paramour.”

Similarly, in a 1998 case from the U.S. Court of Appeals for the Eleventh Circuit, Paul Womack, a career postal employee who had both supervisor and trainer experience, was passed over for a promotion to carrier supervisor. One of the individuals Womack trained was a co-employee named Janine Bennett. Womack was unanimously selected as the best-qualified candidate for the promotion by a Postal Service review board. Nevertheless, the position was given to Bennett, who had been romantically involved with the newly appointed postmaster, O.M. Lee. The Eleventh Circuit adopted the reasoning of DeCintio and the EEOC guidance, holding that “paramour favoritism,” like nepotism, may not be fair, but it is not sex discrimination. Womack v. Runyon, 147 F.3d 1298 (11th Cir. 1998). See also, Taken v Oklahoma Corporation Commission, 125 F.3d 1366 (10th Cir. 1997); Becerra v. Dalton, 94 F.3d 145 (4th Cir. 1996), cert. denied, 519 U.S. 1151 (1997); and Ellert v. University of Texas, 52 F.3d 543 (5th Cir. 1995).

State courts have interpreted their anti-discrimination statutes in a similar manner. The California Court of Appeal, for example, recently followed federal precedent by refusing to recognize paramour preferences as a form of sex discrimination under that state's Fair Employment and Housing Act (FEHA). The case was brought by a group of female employees who were working for the California Department of Corrections. These employees alleged that their rights under the FEHA were violated when other female coworkers were promoted, or received more favorable treatment, because they engaged in consensual sexual relations with a supervisor at the prison. Citing federal decisions, the court wrote that “the fact that one is treated less favorably than supervisor's paramour is not a distinction based on sex, because both males and females who are not the paramour are treated equally.” Mackey v. Department of Corrections, 130 Cal. Rptr.2d 57 (Cal. Ct. App. 2003), rev. granted, 133 Cal. Rptr.2d 323 (Cal. April 23, 2003). A similar ruling interpreting Ohio's anti-discrimination statute was issued in 1999. Asp v. Ohio Medical Transportation, Inc., dba Med Flight, 1999 Ohio App. LEXIS 2991 (Franklin County Court of Appeals, June 29, 1999).

A Contrary View

One jurisdiction takes a contrary view on paramour favoritism. In King v. Palmer, 598 F. Supp. 65 (D.D.C. 1984), rev'd on other grounds, 778 F.2d 878 (D.C. Cir. 1985), the U.S. District Court for the District of Columbia found a prima facie case of sex discrimination where a promotion sought by the plaintiff, a nurse employed by the local Department of Corrections, was given to another nurse with whom the chief medical officer (who had partial responsibility for the hiring decision) was having an affair. The D.C. Circuit assumed — without deciding — that the district court's prima facie formulation was correct, but reversed on other grounds.

While an isolated affair may not run afoul of federal and state civil rights laws, widespread supervisor-subordinate affairs may create employer liability. According to the EEOC guidance, widespread sexual favoritism can create a “hostile environment.” Both men and women who object to an “atmosphere demeaning to women” can establish a Title VII violation if the conduct is sufficiently severe or pervasive.

The EEOC guidance also states that “managers who engage in widespread sexual favoritism may also communicate a message that the way for a woman to get ahead in the workplace is by engaging in sexual conduct or that sexual solicitations are a prerequisite to their fair treatment. This can form the basis of an implicit 'quid pro quo' harassment claim for female employees, as well as a hostile environment claim for both women and men who find this offensive.” EEOC Guidance on Employer Liability Under Title VII for Sexual Favoritism, sec. C.

The leading court case on this issue is Broderick v. Ruder, 685 F. Supp. 1269 (D.D.C. 1988). Here, an attorney working in the enforcement division of the Securities and Exchange Commission claimed that there was a pervasive atmosphere of sexual harassment in the workplace, in which it was common knowledge that executives had sexual relations with female subordinates who then received preferential treatment, promotions, and monetary awards, all in unusually short periods of time. The court found that although the plaintiff herself was not subject to any such requests, the fact that she was forced to work in an atmosphere so pervaded with sexual harassment and favoritism was sufficient to support her claim under a hostile work environment theory. The court noted that this preferential treatment undermined the attorney's motivation and work performance. The court also found it significant that although the plaintiff had complained to higher management, no one was disciplined for conduct that was common knowledge, and management made no serious effort to enforce guidelines prohibiting sex discrimination.

Likewise, in Nicolo v. Citibank New York State, 554 N.Y.S.2d 795 (N.Y. Sup. Ct. 1990), a New York state court opined that “sexual favoritism, which became pervasive to the extent of creating a hostile work environment, would … be actionable.”

Back to Title VII

If the preferential treatment is the result of coerced sexual conduct, qualified employees who were rejected for the job benefit may also have discrimination claims under Title VII. According to EEOC Guidelines on Discrimination Because of Sex, “[w]here employment opportunities or benefits are granted because of an individual's submission to the employer's requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit.” 29 C.F.R. sec. 1604.11(g).

A case in point is Toscano v. Nimmo, 570 F. Supp. 1197 (D. Del. 1983). In this litigation involving the Veterans' Administration, the supervisor had propositioned several of the female employees. Finally he met with success, and boasted that he was giving that employee a promotion because she knew how to make him feel good. Although the supervisor had not made an explicit offer of promotion for sex to any of the women, the court concluded that this offer had been implicit in his behavior: “in order for a woman to be [promoted], it was necessary to grant sexual favors, a condition not imposed on men.” The court therefore ruled that the plaintiff, a well qualified rejected applicant, suffered sex discrimination in violation of Title VII.

Conclusion

Just because an isolated incident of sexual favoritism in the workplace is not illegal, it does not mean it is good for the company. Favoring the boss' lover(s) undoubtedly takes its toll on employee morale and productivity. It is also quite possible that sexual favoritism can rise to the level of a hostile work environment, thus violating Title VII. Furthermore, those who consider themselves the victims of favoritism have avenues open to them beyond the civil rights laws. A public employer, for example, may easily find itself accused of violating civil service merit principles or engaging in prohibited personnel practices. Any business that has faced a lawsuit realizes the time, expense, and emotional drain it can cause, even when concluded successfully. Employers should therefore be aware of and prohibit sexual favoritism in the workplace.

Charlotte Perry, a long-time employee in the Arkansas state government, applied for a better paying job in 1990. Despite seemingly superior qualifications and experience, however, she failed to receive the desired promotion to an administrative position with the Arkansas Board of Review. Instead, the position was awarded to a woman, Gennifer Flowers, who allegedly had engaged in a sexual affair with the then-governor, Bill Clinton. (Murray Waas, “The Other Woman,” SALON, September 11, 1998, www.salonmag.com).

Although Ms. Perry never filed suit against the state, would she have had a viable claim for sex discrimination based on “paramour favoritism?” The answer is generally no. Almost all federal and state courts addressing the issue have ruled that such behavior is unfair and arbitrary, but not a violation of the civil rights laws.

EEOC: An 'Isolated Instance of Favoritism'

Title VII of the Civil Rights Act of 1964 is the major federal anti-discrimination law and prohibits job bias on the basis or race, color, religion, national origin, or sex. The U.S. Equal Employment Opportunity Commission (EEOC), which administers Title VII, has issued a policy guidance stating that the statute does not prohibit isolated instances of preferential treatment based on consensual romantic relationships – “An isolated instance of favoritism to a 'paramour' (or a spouse, or a friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders.” EEOC Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism, Notice No. 915-048, sec. A (January 12, 1990), available at www.eeoc.gov/policy/docs/sexualfavor.html.)

The EEOC applied this principle in a 2001 federal sector case. In Paul v. General Services Administration, 2001 EEOPUB LEXIS 6076 (Appeal No. 01992256, August 16, 2001), the complainant, a physical security specialist who was not selected for a supervisory position, alleged the selectee was chosen because of her romantic relationship with an agency official. The EEOC found no unlawful discrimination because this was an isolated instance of preferential treatment based upon a consensual romantic relationship.

What the Courts Say

Federal and state courts have almost uniformly adopted the EEOC's position. The leading court decision on this matter (issued before the EEOC guidance) was decided in 1986. In DeCintio v. Westchester County Medical Center , 807 F.2d 304 (2nd Cir. 1986), cert. denied, 484 U.S. 825 (1987), the plaintiffs were seven male respiratory therapists. Each therapist claimed he was discriminated against when the supervisor added an irrelevant requirement to the promotional job discrimination listing for Assistant Chief Respiratory Therapist. None of the seven men met the added requirement, but the woman with whom the supervisor was having a consensual romantic affair, did. The court found that sexual favoritism did not violate Title VII because the plaintiffs were not discriminated against because of their gender; “rather, they were discriminated against because [the supervisor] preferred his paramour.”

Similarly, in a 1998 case from the U.S. Court of Appeals for the Eleventh Circuit, Paul Womack, a career postal employee who had both supervisor and trainer experience, was passed over for a promotion to carrier supervisor. One of the individuals Womack trained was a co-employee named Janine Bennett. Womack was unanimously selected as the best-qualified candidate for the promotion by a Postal Service review board. Nevertheless, the position was given to Bennett, who had been romantically involved with the newly appointed postmaster, O.M. Lee. The Eleventh Circuit adopted the reasoning of DeCintio and the EEOC guidance, holding that “paramour favoritism,” like nepotism, may not be fair, but it is not sex discrimination. Womack v. Runyon , 147 F.3d 1298 (11th Cir. 1998). See also, Taken v Oklahoma Corporation Commission, 125 F.3d 1366 (10th Cir. 1997); Becerra v. Dalton , 94 F.3d 145 (4th Cir. 1996), cert. denied, 519 U.S. 1151 (1997); and Ellert v. University of Texas , 52 F.3d 543 (5th Cir. 1995).

State courts have interpreted their anti-discrimination statutes in a similar manner. The California Court of Appeal, for example, recently followed federal precedent by refusing to recognize paramour preferences as a form of sex discrimination under that state's Fair Employment and Housing Act (FEHA). The case was brought by a group of female employees who were working for the California Department of Corrections. These employees alleged that their rights under the FEHA were violated when other female coworkers were promoted, or received more favorable treatment, because they engaged in consensual sexual relations with a supervisor at the prison. Citing federal decisions, the court wrote that “the fact that one is treated less favorably than supervisor's paramour is not a distinction based on sex, because both males and females who are not the paramour are treated equally.” Mackey v. Department of Corrections , 130 Cal. Rptr.2d 57 (Cal. Ct. App. 2003), rev. granted, 133 Cal. Rptr.2d 323 (Cal. April 23, 2003). A similar ruling interpreting Ohio's anti-discrimination statute was issued in 1999. Asp v. Ohio Medical Transportation, Inc., dba Med Flight, 1999 Ohio App. LEXIS 2991 (Franklin County Court of Appeals, June 29, 1999).

A Contrary View

One jurisdiction takes a contrary view on paramour favoritism. In King v. Palmer , 598 F. Supp. 65 (D.D.C. 1984), rev'd on other grounds, 778 F.2d 878 (D.C. Cir. 1985), the U.S. District Court for the District of Columbia found a prima facie case of sex discrimination where a promotion sought by the plaintiff, a nurse employed by the local Department of Corrections, was given to another nurse with whom the chief medical officer (who had partial responsibility for the hiring decision) was having an affair. The D.C. Circuit assumed — without deciding — that the district court's prima facie formulation was correct, but reversed on other grounds.

While an isolated affair may not run afoul of federal and state civil rights laws, widespread supervisor-subordinate affairs may create employer liability. According to the EEOC guidance, widespread sexual favoritism can create a “hostile environment.” Both men and women who object to an “atmosphere demeaning to women” can establish a Title VII violation if the conduct is sufficiently severe or pervasive.

The EEOC guidance also states that “managers who engage in widespread sexual favoritism may also communicate a message that the way for a woman to get ahead in the workplace is by engaging in sexual conduct or that sexual solicitations are a prerequisite to their fair treatment. This can form the basis of an implicit 'quid pro quo' harassment claim for female employees, as well as a hostile environment claim for both women and men who find this offensive.” EEOC Guidance on Employer Liability Under Title VII for Sexual Favoritism, sec. C.

The leading court case on this issue is Broderick v. Ruder , 685 F. Supp. 1269 (D.D.C. 1988). Here, an attorney working in the enforcement division of the Securities and Exchange Commission claimed that there was a pervasive atmosphere of sexual harassment in the workplace, in which it was common knowledge that executives had sexual relations with female subordinates who then received preferential treatment, promotions, and monetary awards, all in unusually short periods of time. The court found that although the plaintiff herself was not subject to any such requests, the fact that she was forced to work in an atmosphere so pervaded with sexual harassment and favoritism was sufficient to support her claim under a hostile work environment theory. The court noted that this preferential treatment undermined the attorney's motivation and work performance. The court also found it significant that although the plaintiff had complained to higher management, no one was disciplined for conduct that was common knowledge, and management made no serious effort to enforce guidelines prohibiting sex discrimination.

Likewise, in Nicolo v. Citibank New York State , 554 N.Y.S.2d 795 (N.Y. Sup. Ct. 1990), a New York state court opined that “sexual favoritism, which became pervasive to the extent of creating a hostile work environment, would … be actionable.”

Back to Title VII

If the preferential treatment is the result of coerced sexual conduct, qualified employees who were rejected for the job benefit may also have discrimination claims under Title VII. According to EEOC Guidelines on Discrimination Because of Sex, “[w]here employment opportunities or benefits are granted because of an individual's submission to the employer's requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit.” 29 C.F.R. sec. 1604.11(g).

A case in point is Toscano v. Nimmo , 570 F. Supp. 1197 (D. Del. 1983). In this litigation involving the Veterans' Administration, the supervisor had propositioned several of the female employees. Finally he met with success, and boasted that he was giving that employee a promotion because she knew how to make him feel good. Although the supervisor had not made an explicit offer of promotion for sex to any of the women, the court concluded that this offer had been implicit in his behavior: “in order for a woman to be [promoted], it was necessary to grant sexual favors, a condition not imposed on men.” The court therefore ruled that the plaintiff, a well qualified rejected applicant, suffered sex discrimination in violation of Title VII.

Conclusion

Just because an isolated incident of sexual favoritism in the workplace is not illegal, it does not mean it is good for the company. Favoring the boss' lover(s) undoubtedly takes its toll on employee morale and productivity. It is also quite possible that sexual favoritism can rise to the level of a hostile work environment, thus violating Title VII. Furthermore, those who consider themselves the victims of favoritism have avenues open to them beyond the civil rights laws. A public employer, for example, may easily find itself accused of violating civil service merit principles or engaging in prohibited personnel practices. Any business that has faced a lawsuit realizes the time, expense, and emotional drain it can cause, even when concluded successfully. Employers should therefore be aware of and prohibit sexual favoritism in the workplace.