Ninth Circuit Not Enamored of ‘Paramour Preference’ Claims

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The U.S. Court of Appeals, Ninth Circuit, rejected “paramour preference” claims under Title VII, affirming summary judgment in favor of an employer and following the other federal appellate courts in rebuffing claims asserting that the statute prohibits sex-based discrimination by favoring a supervisor’s sexual or romantic partner over another employee.
 

William “Bo” Maner worked as a biomedical design engineer in the obstetric and gynecological laboratory of Dr. Robert Garfield for several decades. The lab operated out of Texas, where Maner’s coworkers included a male researcher and Dr. Leili Shi, a female researcher.

Garfield and Shi were engaged in a long-term romantic relationship. They lived together and occasionally demonstrated physical affection at workplace events; Garfield brought Shi with him to research conferences to which other employees were not invited.

In 2008, the lab relocated to Arizona. Garfield was able to keep the team together. That same year, Maner was arrested for the alleged aggravated sexual assault of his 7-year-old daughter. He denied the allegations but pleaded guilty to a lesser included state law offense.

Maner, forced to remain in Texas after he was sentenced to eight years’ probation, was able to keep his job when Garfield approved a remote work arrangement. In 2011, with the lab receiving a reduction in funding, Maner—who had also received a negative performance review—was terminated.

Maner filed a Title VII sex discrimination lawsuit, alleging that the employer protected Shi (a female employee) from the impacts of reduced lab funding by terminating him (a male employee).

The district court granted the employer’s motion for summary judgment.

Considering for the first time whether to permit paramour preference claims, the Ninth Circuit declined.

Maner argued that the text of Title VII gives rise to such claims because the statutory term “sex” encompasses sexual activity between individuals as well as sex characteristics.

But the Ninth Circuit noted that every circuit to consider the question had rejected this reading of the statute, including the Second, Fourth, Fifth, Seventh, Eighth, Tenth and Eleventh circuits (with the Third and Sixth circuits taking similar positions in unpublished decisions).

The court also looked to the U.S. Supreme Court’s recent decision in Bostock v. Clayton County, where the justices ruled that Title VII protects employees from discrimination on the basis of sexual orientation and gender identity.

As the Court said in Bostock, “[i]f 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.”

“Maner’s ‘paramour preference’ reading of Title VII fails Bostocktest,” the Ninth Circuit wrote. “The employer discriminates in favor of a supervisor’s sexual or 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. Changing the sex of the complaining employees would not yield 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 term “sex” in Title VII refers to a characteristic, the court added, like race, color, religion and national origin.

“Just as ‘such individual’s race’ refers to membership in a class and not participation in an athletic event, so too does ‘such individual’s … sex’ refer to a characteristic and not sexual activity,” the court said.

The court further rejected Maner’s attempt to find a Title VII violation whenever an employer’s preferential treatment for a supervisor’s paramour increases the statistical chance that male or female employees will be subject to an adverse employment action.

Such a statistical observation “tells us nothing about the employer’s motivation as to the individual ultimately selected for termination,” the panel noted.

Maner was also unable to find support for his theory in Equal Employment Opportunity Commission regulations, which the court said were actually addressing employers who condition favorable treatment on the receipt of sexual favors and coercion.

“Workplace favoritism toward a supervisor’s sexual or romantic partner is certainly unfair to similarly situated workers and more than likely harms morale,” the Ninth Circuit wrote. “But ‘Title VII is not a “general civility code”’ and employment practices are not unlawful simply because they are unwise.”

To read the decision in Maner v. Dignity Health, click here.

Why it matters: While sympathetic to Maner’s allegations of workplace favoritism, the Ninth Circuit joined every other circuit to reject the paramour preference claims under Title VII.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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