Ninth Circuit Rejects “Paramour Preference” Theory of Title VII Sex Discrimination Claims

In Maner v. Dignity Health, 18-17159, 2021 WL 3699780 (9th Cir. Aug. 20, 2021), the U.S. Court of Appeals for the Ninth Circuit, inter alia, affirmed the dismissal of plaintiff’s gender discrimination claim asserted under Title VII of the Civil rights Act of 1964, on a “paramour preference” theory.

From the decision:

In this appeal, we must decide whether the district court erred in adopting the consensus view among the other circuits and the EEOC that Title VII’s prohibition on discrimination against any individual because of such individual’s sex does not prohibit an employer’s favoritism toward a supervisor’s sexual or romantic partner. Maner argues that the text of Title VII gives rise to “paramour preference” claims because the statutory term “sex” encompasses sexual activity between persons as well as sex characteristics. Maner also argues that the “paramour preference” theory finds support in the Supreme Court’s recent interpretation of Title VII in Bostock v. Clayton County, ––– U.S. ––––, 140 S. Ct. 1731, 207 L.Ed.2d 218 (2020). Finally, Maner argues that Title VII’s implementing regulations endorse the “paramour preference” theory as a form of sexual harassment that impacts third parties. For the following reasons, we reject these arguments and join the consensus view that an employer does not violate Title VII’s prohibition on discrimination because of an individual’s sex by favoring a supervisor’s sexual or romantic partner over another employee; that is, Title VII is not violated by exercising a “paramour preference” for one employee over another because of a workplace romance.

The “paramour preference” theory of Title VII liability on which Maner relies would have us read the term “sex” broadly enough to encompass sexual activity between persons. Discrimination “because of … sex” includes adverse employment actions motivated by romantic and sexual liaisons, the theory goes, because an employer who exhibits favoritism toward a supervisor’s paramour over other employees has discriminated against other employees “because of” romantic relationships or sexual activity.

As the district court correctly noted, every circuit to consider the question has rejected the “paramour preference” reading of Title VII. The leading case is the Second Circuit’s decision in DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 1986). In DeCintio, seven male employees alleged that their employer discriminated based on sex by passing them over for promotion in favor of a female employee who had an affair with their supervisor. Id. at 305–06. The court rejected the argument that “sex” as used in the statute meant “sexual liaisons” and “sexual attractions.” Id. at 306. Instead, the court interpreted “sex” in context alongside “race,” “color,” “religion,” and “national origin,” the “other categories afforded protection under Title VII,” as a characteristic and not as an activity. Id. Ultimately, the court held that sex “logically could only refer to membership in a class delineated by gender” and that the complaint failed to state a sex discrimination claim under Title VII 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.” Id. at 306, 308.

The Fourth, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits have since adopted DeCintio’s holding and rationale to reject “paramour preference” claims as a standalone source of sex discrimination liability under Title VII.

After analyzing the issue further, the court concluded that while “[w]orkplace favoritism toward a supervisor’s sexual or romantic partner is certainly unfair to similarly situated workers and more than likely harms morale,” Title VII is “not a general civility code, and employment practices are not unlawful simply because they are unwise.” [Internal quotation marks omitted.]

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