Second Circuit Rejects “Sexual Favoritism” Claim And Clarifies The “Objectively Reasonable Belief” Element Of Retaliation

Last week in Kelly v. Howard I. Shapiro & Associates Consulting Engineers, P.C. the Second Circuit affirmed the dismissal of plaintiff’s retaliation claims.  The facts, however, are not quite typical:

[Plaintiff] quit her job as a human resources manager at her family business after complaining about an affair that one of her brothers, a vice president of the company, was having with another worker in the office. She … alleg[es] that the affair created a hostile work environment “permeated by sexual favoritism” and that both of her brothers retaliated against her for complaining about the affair.

Yikes.  What I wouldn’t give to be a fly on the wall at that Thanksgiving dinner.

The court first noted that the district court correctly dismissed plaintiff’s hostile work environment claims:

[The Second] Circuit has long since rejected “paramour preference” claims, which depend on the proposition that the phrase “discrimination on the basis of sex” encompasses disparate treatment premised … on a romantic relationship between an employer and a person preferentially treated. … It is axiomatic that in order to establish a sex-based hostile work environment under Title VII, a plaintiff must demonstrate that the conduct occurred because of her sex.

As to retaliation, the court held that plaintiff’s complaint failed because it contained nothing to indicate that “her sex, in one way or another, played a substantial role in her brothers’ behavior.”

Although plaintiff’s complaint repeatedly used the words “discrimination” and “harassment”, her argument that “the widespread sexual favoritism constituted gender discrimination because it resulted in an atmosphere ‘demeaning to women’ is entirely unsupported by the allegations in her complaint.”

The outcome might have been different if, for example, she alleged that her brother and his lover “engaged in sexually explicit behavior or conversations in the office”.  But she didn’t.


[T]here is no indication either that Kelly herself possessed a good-faith belief that she was complaining of conduct prohibited by Title VII or that her employers could have understood her complaints in this way. Kelly suggests only that she believed her brothers were “undermining her authority in favor of Ms. Joyce, and that she believed that such misconduct constituted unlawful discrimination.” …

[T]he complaint does not indicate that the office environment was “demeaning to women.”  Kelly’s allegations regarding other female employees in the office state only that they complained to Kelly about the “favoritism shown towards Ms. Joyce” and that they were “unable to get into [Lawrence’s] office to meet with him.” …

Nothing about these allegations — even if Kelly had repeated them to Lawrence, which she does not claim to have done — indicates that there was discrimination against anyone on the basis of sex.

Finally, it didn’t matter that plaintiff subjectively believed that she was complaining about conduct that was unlawful under Title VII; rather, a plaintiff’s belief must be objectively reasonable.

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