William Maner worked for decades as a biomedical design engineer in the laboratory of employer, Dr. Robert Garfield. Garfield’s laboratory initially operated in Texas. Maner’s coworkers were researchers Dr. Yuan Dong (male) and Dr. Leili Shi (female). Maner learned shortly after joining the lab that Garfield and Shi were engaged in a long-term romantic relationship. Garfield gave special favors to Shi in terms of more travel and work opportunities that Maner felt Shi should not have received. However, Maner did not raise concerns about the couple’s relationship or its impact on other employees.
In 2009, Garfield’s lab relocated to Arizona using the facilities of Dignity Health. Maner joined Garfield, Dong, and Shi in Arizona. However, Maner was forced to return to Texas for personal reasons. Garfield approved a remote work arrangement for Maner. Garfield’s lab soon began to suffer from a decline in grant funding used to pay employee salaries and research projects. Dong’s position was eliminated.
In August 2011, Garfield submitted a highly negative review of Maner’s performance since the remote work arrangement started. Garfield noted that “it is not always possible to contact him.” Garfield recommended that Maner return to Arizona or his position will be eliminated. Maner remained in Texas. Dignity Health eliminated Maner’s position on October 1, 2011, citing Maner’s poor performance and the lack of funding.
Maner then sued the employer claiming Title VII sex discrimination and alleging that Dignity Health protected Shi (a female employee) from the impacts of reduced lab funding by terminating Maner (a male employee). The trial court dismissed Maner’s case. He appealed.
Maner based his case on the “paramour preference” theory, which states that an employer engages in unlawful sex discrimination when a supervisor’s romantic relationship with an employee results in an adverse employment action against another employee. Maner also argued that “paramour preference” is a form of sexual harassment that impacts other employees.
The Court of Appeal for the 9th Circuit had to consider this question: Does romantic favoritism constitute sex discrimination under Title VII?
Title VII makes it unlawful for an employer to discriminate against any individual because of that individual’s sex. The courts have interpreted this language as giving rise to at least three types of sex discrimination claims:
- disparate treatment (adverse employment actions motivated by sex);
- quid pro quo sexual harassment (conditioning employment benefits on submission to sexual advances); and
- hostile work environment harassment (unwelcome sexual advances so severe as to alter the terms and conditions of employment).
While each claim involves different elements, all proceed from the understanding that Title VII prohibits discrimination against an individual because of that individual’s “protected characteristic,” (i.e. their sex). The “paramour preference” theory being relied on by Maner argues that the term “sex” should also include sexual activity between persons.
The appellate court rejected the argument that “sex” as used in the statute meant “sexual liaisons” and “sexual attractions.” Instead, the court interpreted “sex” as a characteristic similar to “race,” “color,” “religion,” and “national origin” and not as an activity. To determine whether an employer discriminated based on sex, one should ask if changing the employee’s sex would have yielded a different choice by the employer.
In the “paramour preference” scenario, the answer is no. The employer discriminates in favor of a supervisor’s romantic 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. This is not unlawful discrimination. Changing the sex of the complaining employees would not result in a different choice by the employer because the identity of the favored paramour would remain the same. 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 court, therefore, rejected the “paramour preference” claim as a stand-alone basis of sex discrimination liability. An employer who singles out a supervisor’s paramour for preferential treatment does not discriminate against other employees because of their sex. The appellate court affirmed the dismissal of Maner’s case.
The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyerby the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]
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