Is it Love… Or is it a Protected Category? Is Paramour Preference” a Recognized Theory of Liability?
Believe it or not, there have been other ongoing employment issues which have not involved COVID. The ruling in the Maner case addressed an issue that had not previously been addressed in the Ninth Circuit.
What happened in this case? On August 20, 2021, the Ninth Circuit decided a case called Maner v. Dignity Health, 9 F.4th 1114 (2021). In this case a male employee brought a Title VII action against Dignity Health alleging sex discrimination and retaliation. Maner worked as a biomedical design engineer in the ob-gyn laboratory of Dr. Robert Garfield for several decades. It was owned by Dignity Health. The lab was located in Texas, and depended in large part on grants to fund employee salaries. Maner recruited research subjects, analyzed data, prepared grant applications and assisted with patent filings.
Maner worked in the lab with Dr. Yuan Dong, a male researcher, and Dr. Leili Shi, a female researcher. Garfield and Shi were involved in a long-term romantic relationship that began as a workplace affair while Garfield was married to another woman. Garfield and Shi lived together and occasionally demonstrated physical affection at workplace events. They traveled together to conferences to which other employees were not invited and provided Shi with a greater share of workplace opportunities related to publications and intellectual property than Maner felt Shi should have received.
In January 2008, Garfield relocated the lab to Phoenix, and Dignity extended offers of employment at the new facility to the existing team. Maner accepted the offer and prepared to relocate. That April, however, Maner was arrested at work in Texas for alleged sexual assault of his seven-year-old daughter. He eventually pleaded guilty to a lesser included state law offense. He moved to Phoenix while the charges were pending and received several outstanding performance reviews and merit pay increases. In August 2010, Maner was sentenced to eight years’ probation, and was required to reside in Texas. Garfield approved a remote work arrangement for Maner in Texas while he was serving his probation.
The Phoenix lab soon began to suffer from a decline in grant funding used to fund employee salaries. Garfield recommended Dong’s position be eliminated. Dignity accepted the recommendation, and Dong complained about Garfield’s relationship with Shi. An investigator was assigned. Maner was interviewed as part of the investigation, but he did not raise any concerns about the Garfield/Shi relationship. As a result of the investigation Shi was reassigned to a different supervisor but continued working in the lab with Garfield.
In August 2011, Maner received a highly negative review starting from the beginning of his remote work arrangement. Garfield recommended Maner return to Phoenix or be terminated. Maner emailed the investigator and urged Dignity to retain him because of his past positive performance, and also noted new sources of grant funding. He also responded to the negative review and said it was prompted by funding concerns and offered to improve his performance. Dignity eliminated his position on October 1, 2011, citing his poor performance and the lack of funding. Maner challenged the termination, and accused management of fabricating the negative performance, appropriating laboratory funds “in a nepotistic manner,” and presented various EEOC articles, as well as claiming unfair trade practices. The termination was upheld.
Maner filed an EEOC complaint, claiming Dignity protected Shi from the impacts of reduced lab funding by terminating Maner, a male employee. The EEOC declined to act, and Maner filed suit. In addition to claiming gender discrimination, he also claimed retaliation alleging that he was terminated because he protested Garfield’s favoritism toward Shi at the expense of other employees. The District Court upheld Dignity’s Motion for Summary Judgment dismissing the suit, holding that Maner failed to establish a cognizable claim of sex discrimination or retaliation, and that he failed to rebut Dignity’s explanation for the termination. Maner appealed to the Ninth Circuit.
What is Paramour Preference? The “paramour preference” theory of Title VII liability alleges that an employer engages in unlawful sex discrimination whenever a supervisor’s relationship with a sexual or romantic partner results in an adverse employment action against another employee. In this case the theory was there was an adverse employment action against Maner, a male, because of Garfield’s relationship with Shi, a female. A similar example would be an allegation that several male employees were passed over for promotion in favor of a female employee who had an affair with their supervisor.
The Court observed that Maner’s proposition was not a recognized theory in any other jurisdictions or the EEOC, and had not been addressed in the Ninth Circuit. In this case, Maner admitted that the allegations relate only to Garfield’s romantic relationship with Shi and instances of favoritism toward Shi arising from that relationship. Maner never alleged that Garfield or anyone else at Dignity showed animus against male employees, solicited sexual favors in exchange for job benefits or created a hostile work environment through pervasive sexual harassment. Consequently, Maner’s sex discrimination claim can succeed only if Title VII bars employment decisions motivated by “paramour preference.”
Maner argued that 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 tried to tie his argument to the recent U.S. Supreme Court case of Bostock v. Clayton County. In the Bostock case, the Supreme Court held that even though “sexual orientation” was not expressly identified in Title VII, it was encompassed in Title VII’s “because of… sex” language, thus, sexual orientation was recognized as a protected category.
In Maner, the Ninth Circuit held that the Title VII does not “prevent employers from favoring employees because of personal relationships… as long as such favoritism is not based on an impermissible classification. Specifically, the Ninth Circuit established that an employer who singles out a supervisor’s paramour for preferential treatment does not discriminate against other employees “because of their… sex.”
To illustrate the Court’s conclusion, it borrowed from the logic in the Bostock case. It established a test for assessing 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 violation of Title VII has occurred.
Maner’s “paramour preference” theory failed the test. If 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, the adverse action is not because of sex, and does not violate Title VII. The motive behind the adverse employment action is the supervisor’s special relationship with the paramour, not any protected characteristics. Title VII does not apply until and unless an employer makes sexual advances or requests to which an employee submits. Liability cannot attach for indirect harms without evidence that the employer coerced someone into exchanging sexual favors for workplace benefits.
Do not let this decision confound your “spidey sense” about workplace relationships. As the Court stated, “Workplace favoritism toward a supervisor’s sexual or romantic partner is certainly unfair to similarly situated workers and more than likely harms morale.” But as the courts and we employment lawyers have told you time after time: Title VII is not a general civility code, and employment practices are not unlawful simply because they are unwise. Nonetheless, nothing has changed regarding workplace relationships between a supervisor and a subordinate. They should never ever be allowed to exist. But the Ninth Circuit has finally made clear that any actionable harm from the relationship between Dr. Garfield and Dr. Shi was between them and Dignity. It did not flow through to Mr. Maner.
If you have any questions, or need help with developing policies, you are invited to contact any of the employment lawyers at Lemons, Grundy & Eisenberg.