Ninth Circuit Rejects “Paramour Preference” Liability Arising From Supervisor’s Affair With Another Employee -

Maner v. Dignity Health, ___ F.4th ___, 2021 WL 3699780 (9th Cir. 2021)

William “Bo” Maner worked as a biomedical design engineer in the obstetric and gynecological laboratory of Dr. Robert Garfield for several decades. Shortly after he joined the lab, Maner learned that Garfield and another researcher (Dr. Leili Shi) were engaged in a long-term romantic relationship. After Maner’s position was eliminated based upon his poor performance and the lab’s lack of funding, he filed a complaint alleging Title VII sex discrimination in which he asserted that Dignity Health had protected Shi (a female) from the impact of reduced lab funding by terminating Maner (a male); Maner also alleged unlawful retaliation for protesting Garfield’s “favoritism” toward Shi at the expense of other employees. The district court granted Dignity Health’s motion for summary judgment, and the Ninth Circuit affirmed dismissal, holding that an employer who singles out a supervisor’s paramour for preferential treatment does not discriminate against other employees “because of [their] sex.” The Court reasoned that “the motive behind the adverse employment action is the supervisor’s special relationship with the paramour, not any protected characteristics of the disfavored employees” though the Court noted that such activity is “certainly unfair to similarly situated workers and more than likely harms morale.” The Court affirmed dismissal of the retaliation claim on the ground that Maner had failed to establish a causal connection between his alleged complaint and the elimination of his job.