9th circuit finds ‘paramour preference’ does not violate Title VII

The 9th U.S. Circuit Court of Appeals recently determined that "paramour preference" -- an employer favoring a supervisor's sexual or romantic partner over another employee -- was not unlawful discrimination and did not violate Title VII of the Civil Rights Act of 1964. In William Maner v. Dignity Health, 2021 DJDAR 8649 (Aug. 20, 2021), Maner contended that Dignity Health subjected him to sex discrimination and retaliation because he was terminated while a supervisor's paramour was not, and he allegedly complained about the supervisor and paramour's relationship. The 9th Circuit affirmed the district court's award of summary judgment to Dignity Health.

Maner worked as an engineer in Dr. Robert Garfield's laboratory. From 1999 to 2008, Garfield's laboratory operated out of the University of Texas Medical Branch in Galveston. Maner worked with Dr. Yuan Dong, a male researcher, and Dr. Leili Shi, a female researcher. Garfield and Shi engaged in a long-term romantic relationship and occasionally displayed affection at workplace events. Garfield also brought Shi with him to conferences that other employees were not invited to, and gave Shi a greater share of workplace opportunities regarding publications and intellectual property than Maner believed that Shi should have received.

In 2008, Garfield relocated the lab to an installation operated by Dignity Health in Phoenix, Arizona, and persuaded Dignity Health to extend offers of employment to his existing team. Maner accepted, but was unable to relocate to Arizona because he was subject to criminal proceedings and the terms of his probation did not allow him to leave the state. During the pendency of the criminal proceedings, Garfield gave Maner positive performance reviews and merit pay increases. In November 2010, Garfield approved Maner to work remotely.

However, Garfield's lab soon suffered declines in grant funding, and in 2010, Garfield recommended eliminating Dong's position to alleviate the funding shortage. Dong complained to Dignity Health about Garfield and Shi's relationship, and Dignity Health assigned an investigator. When the investigator interviewed Maner, he did not raise any concerns about Garfield and Shi's relationship or its impact on other employees. Dignity Health assigned Shi to a different supervisor, but allowed her to continue working in the lab with Garfield.

In August 2011, Garfield submitted a negative review of Maner's performance, noting that it was not always possible to contact Maner. Garfield recommended that Maner either return to Phoenix or his position would be terminated. Maner sent an email to the Dignity Health investigator on Aug. 27, urging the company to retain his remote position because of his record of positive performance and potential for new grant funding. On Aug. 29, Maner sent another email challenging Garfield's claims, arguing that the negative review was prompted by funding concerns, and offered to take actions to improve his performance. Dignity Health eliminated Maner's position on Oct. 1, 2011 for his poor performance and a lack of funding.

The day his position was eliminated, Maner sent a letter to Dignity Health, contending, among other things, that the reasons for his termination were pretextual, that his negative performance review was "fabricated," and management was "violat[ing] EEOC articles."

Maner thereafter brought a Title VII sex discrimination claim, alleging that Dignity Health protected Shi from the impacts of reduced funding by terminating Maner. He also brought a Title VII retaliation claim, alleging that Dignity Health terminated him for protesting Garfield's favoritism toward Shi at the expense of other employees.

The district court granted Dignity Health's motion for summary judgment, finding that Maner complained of discrimination not based on his sex, but on Garfield's preference for Shi as a romantic partner, which did not violate Title VII. The district court also found that Maner did not establish that he engaged in protected activity because he did not oppose an employment practice that violated Title VII and thus could not establish retaliation.

On appeal, Maner argued that Title VII supports paramour preference claims because the statutory term "sex" includes sexual activity between persons as well as sex characteristics. Maner contended that his paramour preference theory was supported by the U.S. Supreme Court's interpretation of Title VII in Bostock v. Clayton County, 140 S. Ct. 1731 (2020). Finally, Maner argued that title VII's regulations support paramour preference as a form of sexual harassment that affects third parties. The 9th Circuit rejected these arguments.

The 9th Circuit relied on the 2nd Circuit's leading decision in DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 1986). In DeCintio, male employees alleged that their employer discriminated against them by promoting a female employee who had an affair with their supervisor. The 2nd Circuit rejected the argument that "sex" meant "sexual liaisons" or "sexual attractions," instead interpreting "sex" alongside Title VII's prohibition of discrimination based on "race," "color," "religion," and "national origin." Under Title VII, "sex" is a characteristic, not an activity. In DeCintio, the 2nd Circuit found the plaintiffs failed to state a claim for sex discrimination because the 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." Notably, the 4th, 5th, 7th, 8th, 10th and 11th Circuits adopted DeCintio's holding. The 8th and 11th Circuits also relied on the Equal Employment Opportunity Commission's guidance indicating that Title VII does not prohibit isolated instances of preferential treatment based on consensual romantic relationships.

Additionally, Bostock did not support Maner's position. In Bostock, the Supreme Court used the "ordinary public meaning" of the phrase "because of ... sex" to determine whether employers violated the law by discharging employees due to their sexual orientation and gender identity. The court also derived a test to determine whether an employment action violated Title VII: "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." Thus, in Bostock, it was sex discrimination for an employer to terminate a male employee for being attracted to men, a trait or action tolerated in female employees, and to terminate an employee who identified as male at birth for traits or actions tolerated in employees who identified as female at birth. Thus, the 9th Circuit found that Maner did not establish sex discrimination because the employer was discriminating in favor of the supervisor's sexual or romantic partner and against all other employees, and that changing the sex of the complaining employees would not yield a different result. Rather, the motive behind the adverse employment action was the supervisor's special relationship, not any protected characteristics of the disfavored employees.

Similarly, the 9th Circuit found that Maner's argument that preferential treatment for a supervisor's paramour increases the statistical chance that male or female employees will be subject to an adverse employment action contradicts the Supreme Court's emphasis on the individual claiming discrimination. Indeed, the reasoning in Bostock was that courts must focus on the causal relationship between an individual employee's sex and the employer's decision to take an adverse employment action against that individual. This analysis is distinct in each case and focuses on "individuals, not groups." Here, Maner's statistical argument revealed nothing about Dignity Health's motivation toward him when he was selected for termination.

Further, the 9th Circuit rejected Maner's argument that paramour preference was a form of sexual harassment under Title VII. However, the EEOC's regulation interpreting the statute indicated "Where employment opportunities or benefits are granted because of an individual's submission to the employer's sexual advances or 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." The 9th Circuit reasoned that the regulation does not apply unless the employer makes sexual advances or requests to which the employee submits. That is, quid pro quo harassment requires evidence that the employer coerced an employee into exchanging sexual favors for workplace benefits. The "submission" requirement "involves a lack of consent and implies a necessary element of coercion or harassment that is absent from consensual workplace relationships." Under EEOC guidance, isolated instances of favoritism towards a supervisor's consensual sexual or romantic partner fall outside the scope of Title VII. However, workplace romance "crosses the line" into widespread sexual harassment where, for example, it sends the message that women are viewed as "sexual playthings" or that the only way for women to get ahead in the workplace is to engage in sexual conduct. Here, Maner did not present any evidence that Garfield conditioned Shi's favorable treatment on receipt of sexual favors or that Shi submitted to coercion by consenting to their ongoing relationship. Thus, the 9th Circuit found that the existence of a consensual relationship between a supervisor and employee is insufficient to establish a claim for sex discrimination.

Finally, the 9th Circuit found that Maner's retaliation claim failed because Maner did not establish any causal connection between the claimed protected activity and the termination decision. Specifically, Maner had to show that Dignity Health was aware that he had engaged in protected activity. However, Maner did not protest Garfield and Shi's relationship until Oct. 11, 2011, 10 days after Dignity Health eliminated his position. Thus, Maner's opposition to the relationship in his Oct. 11 letter could not have motivated Dignity Health's decision.

The Maner decision should provide some relief to California businesses when trying to address workplace romances because isolated incidents of favoritism, without more, are not a basis for liability. However, because these workplace romances have the potential to evolve into sexual harassment claims, especially due to the uneven power dynamic between romantically involved supervisors and employees, businesses should work with their counsel to ensure that their policies and practices adequately address romantic workplace relationships, any complaints regarding harassment or favoritism due to romantic relationships, and investigations of those complaints. 