Plaintiff’s “Paramour Preference” Plan Panned: 9th Circuit Finds Romantic Relationship Not Enough to Show Discrimination Against Non-Romantic Co-WorkerIn another chapter in litigation alliteration, in Maner v. Dignity Health, f/k/a Catholic Healthcare West, the Ninth Circuit held that a male employee’s theory that his supervisor’s long-term romantic relationship with a co-worker could not be the basis for his own Title VII claim that he was discriminated due to his sex. The Court noted that his supervisor’s “paramour preference” for a female subordinate was not enough to show that the employee had suffered discrimination based on his male gender.

Alleged Preferred Treatment

The Plaintiff, Mr. Maner, worked as a biomedical design engineer at Dr. Robert Garfield’s lab in Galveston, Texas. One of Mr. Maner’s co-workers was a researcher named Dr. Shi. Significantly, Dr. Shi was in long-term romantic relationship with Dr. Garfield.

In 2008, Dr. Garfield decided to move the lab to Phoenix, Arizona at an installation operated by Dignity Health. Due to some legal troubles, Mr. Maner could not leave the state of Texas and instead remained working remotely in Texas. Three years later, Dr. Garfield gave Mr. Maner a highly negative review and suggested that Mr. Maner either move to Arizona or get fired. The lab ultimately terminated Mr. Maner due to his performance and an overall decline in lab funding. Mr. Maner internally contested the termination claiming that Dr. Garfield engaged in unfair labor practices and appropriated lab funds “in a nepotistic manner.” Dignity Health investigated but denied his appeal.

Mr. Maner’s Suit and Theory

Mr. Maner filed a sex discrimination charge and later lawsuit against Dignity Health alleging that it protected the female employee, Dr. Shi, from the impacts of the reduced lab funding by terminating Mr. Maner. He also brought a retaliation claim stating that Dignity Health terminated him for protesting Dr. Garfield’s favoritism of Dr. Shi at the expense of other employees.

The district court granted Dignity Health’s motion for summary judgment, holding that Mr. Maner’s complaints were not based on his sex, but instead on Dr. Garfield’s preference for Dr. Shi as a romantic partner. The court noted that this “paramour preference” theory of Title VII liability (where a supervisor’s relationship with a romantic partner at work results in an adverse employment action against another employee) had not yet been recognized in the Ninth Circuit. The court acknowledged that  nearly every other circuit and the EEOC had already rejected that theory as inconsistent with Title VII.

The Ninth Shuts It Down

The Ninth Circuit narrowed the issue by pointing out that Mr. Maner conceded  he had no allegations that Dr. Garfield or anyone at the company had shown any animus against male employees or engaged in any sort of hostile work environment. Instead, his only evidence was Dr. Garfield’s romantic relationship with Dr. Shi and his theory that Mr. Maner’s termination was motivated by a “paramour preference.”

The court pointed out that Mr. Maner’s “paramour preference” theory would have Title VII’s use of the word “sex” to cover sexual activity between persons. However, every circuit to consider the question has rejected that theory. Those courts focused on the fact that Title VII uses “sex” in context along with “race,” “color,” “religion,” and “national origin.” Sex is seen as a characteristic and not an activity. Sex refers to membership in a class. This context is borne out by noting that under the “paramour preference” theory, male plaintiffs face the same predicament as any other woman employee – no one but the paramour would be considered to be protected by the supervisor.

The EEOC guidance agrees with the circuits, noting that “Title VII does not prohibit isolated instances of preferential treatment based upon consensual romantic relationships.” The EEOC went on to say that an instance of favoritism toward a paramour, spouse or friend may be unfair, but it does not discriminate against women or men in violation of Title VII.

The Ninth Circuit turned to the recent Bostock decision for further ammunition in shutting down Mr. Maner’s theory. In Bostock, the Supreme Court held that that the phrase “because of sex” in Title VII covers sexual orientation and gender identity. The Bostock Court posited this test: if changing the employee’s sex would have yielded a different choice, a statutory violation has occurred. According to the Ninth Circuit, this is where the “paramour preference” theory fails. If Mr. Maner changed his sex, it would have made no difference in how he had been treated – Dr.  Garfield only had eyes for Dr. Shi. The court concluded:

“Workplace favoritism toward a supervisor’s sexual or romantic partner is certainly unfair to similarly situated workers and more than likely harms morale. But Title VII is not a ‘general civility code,’ and employment practices are not unlawful simply because they are unwise. The Court upheld the summary judgment granted against Mr. Maner.”

Does This Endorse Dating In the Workplace?

Romantic relationships among co-workers, especially between supervisors and subordinates, are problematic. While things initially may be rosy, relationships turned bad may result in quid pro quo and hostile environment harassment allegations. However, as recognized by the Ninth Circuit, simply because an employment practice is unwise, does not mean that it is necessarily unlawful. While the fact pattern found here may not have supported a claim, employers need to be very careful about how they handle consensual workplace relationships. You should also remind everyone that non-consensual sexual or romantic gestures may not be welcome and can result in liability.