Workplace romances are a tale as old as time. According to a 2020 study conducted by the Society for Human Resource Management (“SHRM”) and the University of Chicago’s AmeriSpeak Panel surveying 696 American workers, 27% admitted to having romantic relationships with their work colleagues, and about 27% of those workers indicated that they dated someone who was their boss or another superior. But is it unlawful for a supervisor to give their romantic partner some extra love at the expense of other employees when it comes to workplace decisions? That was the question precisely at issue in Maner v. Dignity Health, a recent decision from the U.S. Court of Appeals for the Ninth Circuit (which hears appeals from federal district courts located in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, as well as Guam and the Northern Mariana Islands).

In Maner, the plaintiff, William “Bo” Maner, a biomedical design engineer at Dignity Health, alleged that he was unlawfully discriminated against when his position was eliminated due to lack of funding, while a female employee, who was engaged in a romantic relationship with the lab chief, remained employed. Specifically, Maner brought a Title VII sex discrimination claim in Arizona federal court alleging that Dignity Health protected the employee engaged in a romantic relationship with her supervisor (a female employee) from the effects of reduced lab funding by terminating Maner (a male employee) instead. In addition, Maner brought a Title VII retaliation claim alleging that Dignity Health terminated him for speaking out against the lab chief’s favoritism toward his romantic partner at the expense of other employees.

Dignity Health moved for summary judgment on the grounds that Maner failed to state a cognizable claim of sex discrimination, failed to establish a prima facie case of sex discrimination or retaliation, and failed to rebut the employer’s legitimate, nondiscriminatory reason for his termination with evidence of pretext. The district court granted the motion and entered judgment for the employer.

On August 20, 2021, a three-judge panel of the Ninth Circuit affirmed the district court’s decision, rejecting Maner’s arguments and holding that discrimination motivated by an employer’s preferential treatment toward a supervisor’s sexual or romantic partner (otherwise referred to as “paramour preference”) is not unlawful sex discrimination against the complaining employee within the ordinary meaning of Title VII’s terms. Title VII makes it unlawful for a covered employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” It is well-established that courts interpret this language as giving rise to at least three types of sex discrimination claims: disparate treatment (adverse employment actions motivated by sex); quid pro quo sexual harassment (conditioning employment benefits on submission to sexual advances); and hostile work environment harassment (unwelcome sexual advances so severe as to alter the terms and conditions of employment).

The “paramour preference” theory of Title VII liability requires a broad enough reading of the term “sex” to encompass sexual activity. Under the theory, discrimination “because of . . . sex” includes adverse employment actions motivated by romantic and sexual relationship because an employer who shows favoritism toward a supervisor’s lover over other employees has discriminated against other employees “because of” romantic relationships or sexual activity.  However, every circuit to consider the “paramour preference” reading of Title VII prior to Maner has rejected it, including the Second, Fourth, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits. These circuits specifically disagreed with the argument that “sex” as used in the statute means “sexual liaisons” and “sexual attractions.”

In Maner, the Ninth Circuit joined its fellow Circuits, rejecting the “paramour preference” theory, relying on reasoning from the U.S. Supreme Court’s recent decision regarding sexual orientation discrimination in Bostock v. Clayton County (discussed previously here).

In Bostock, the Court outlined an all-purpose test for analyzing whether an adverse employment action violated Title VII:

If 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.

According to the Ninth Circuit, the “paramour preference” reading of Title VII fails Bostock’s test. To determine whether an employer discriminated based on sex in violation of Title VII, a court must ask “if changing the employee’s sex would have yielded a different choice by the employer,” and in the “paramour preference” scenario, the answer is no. The court explained that when an employer discriminates in favor of a supervisor’s sexual or romantic partner and against all other employees it does so 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 result in a different choice by the employer because the identity of the favored paramour would remain the same. Thus, 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 Ninth Circuit panel reasoned that “[w]orkplace 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.” Further, the court explicitly rejected Maner’s contention that Title VII’s prohibition on discrimination because of an individual’s “sex” encompasses consensual sexual activity or romantic relations between persons.

Although preferential treatment toward a supervisor’s sexual or romantic partner may not be illegal under Title VII, as the Ninth Circuit explained, such favoritism is likely to harm workplace morale and is generally unwise. Accordingly, employers should aim to avoid this issue altogether by implementing workplace policies that prohibit or strongly discourage romantic and sexual relationships between supervisors and their subordinates.