Ninth Circuit Rules against “Paramour Preference” Claim

In a recent ruling, Maner v. Dignity Health, the Ninth Circuit Court of Appeals ruled against the plaintiff, who claimed he was fired because his supervisor was protecting a fellow employee with whom the supervisor was having an affair. The supervisor allegedly gave preference to his paramour. This is not the first time that a court has rejected a paramour preference claim under Title VII of the Civil Rights Act of 1964.

According to the Ninth Circuit in the case “William ‘Bo’ Maner worked as a biomedical design engineer in the obstetric and gynecological laboratory of Dr. Robert Garfield for several decades.” Also working in Garfield’s lab was “Dr. Leili Shi, a female researcher.” Garfield and Shi had been conducting an affair for years. This allegedly led to envy among her two male colleagues (the other was Dr. Yuan Dong), who saw choice assignments and other preferments go to her. “Garfield and Shi lived together and occasionally demonstrated physical affection at workplace events.”

While the lab operated in Texas, Maner received good work reviews. “For example, Garfield complimented Maner in one review as ‘solid as a rock’ and thanked him for ‘[o]verall an outstanding performance.'” After the lab moved to Arizona, however, Garfield stayed in Texas as a remote worker, and his performance reviews immediately began to decline. Also, once in Arizona, “Garfield’s lab soon began to suffer from a decline in the grant funding used to fund employee salaries and research projects.” As a result, “In 2010, Garfield recommended Dignity Health eliminate Dong’s position to alleviate the lab’s funding shortage.” “Dong allegedly complained to Dignity Health officials about Garfield’s ongoing romantic relationship with Shi.” Later, “In August 2011, Garfield submitted a highly negative review of Maner’s performance since the beginning of the remote work arrangement.” The formerly relatively harmonious lab was falling apart. “Garfield rated Maner as “Needs Improvement” across almost every evaluation metric and noted that although Maner ‘has helped occasionally on analysis of data…it is not always possible to contact him.’ Garfield recommended Maner ‘either return to Phoenix immediately or [that] his position be terminated.'”

“Dignity Health eliminated Maner’s position on October 1, 2011, citing Maner’s poor performance review and the lab’s lack of funding.” Days later, Maner sent a letter protesting his termination to Dignity Health’s Senior Vice President for Human Resources. In the letter, Maner “challenged the rationales for his termination as pretextual and accused ‘management’ of ‘fabricat[ing]’ the negative performance evaluation, appropriating laboratory funds ‘in
a nepotistic manner,’ ‘violat[ing] EEOC articles,’ and committing ‘unfair labor practices.'” The Senior Vice President responded with a letter confirming Maner’s termination. “Maner soon thereafter filed charges against Dignity Health before the federal Equal Employment Opportunity Commission (‘EEOC’), the administrative agency tasked with enforcing Title VII’s antidiscrimination provisions.” The EEOC granted that Maner had exhausted his administrative remedies and permitted him to file suit in federal court. Maner filed suit in Arizona.

“In the operative complaint, Maner brought a Title VII sex discrimination claim alleging that Dignity Health protected Shi (a female employee) from the impacts of reduced lab funding by terminating Maner (a male employee).” Furthermore, “Maner also brought a Title VII retaliation claim alleging that Dignity Health terminated him for protesting Garfield’s favoritism toward Shi at the expense of other employees.”

“Dignity Health moved for summary judgment” on these claims, “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 explanations for the termination with evidence of pretext.” The question before the court was whether an employer’s granting preference in the workplace to an employee because of an affair constitutes sex discrimination against another employee. The trial court ruled in favor of Dignity Health, granting summary judgment against Maner. In so doing, it ruled that Title VII does not protect an employee of one sex who is disfavored on account of an employee of another sex. Even assuming Maner’s claims were true, he was not protected by Title VII. The trial court “noted that while our circuit had not yet foreclosed the availability of ‘paramour preference’ claims under Title VII, nearly every other circuit and the EEOC had already rejected the theory as inconsistent with the statute and its implementing regulations.”

As for the retaliation claim, the trial court ruled that Maner’s “complaints…did not oppose an employment practice that ‘fairly f[e]ll within’ the prohibitions of Title VII.”

On appeal, the paramour preference claim became the focus of attention. Furthermore, Maner cited the recent U.S. Supreme Court decision Bostock v. Clayton County, which held discrimination may be found when theoretically “changing the employee’s sex would have yielded a different choice by the employer.” The Ninth Circuit brushed aside the claim under Bostock, noting that if Maner had been a woman his employer would have made the same choice. The Ninth Circuit judges also “held that discrimination motivated by an employer’s ‘paramour preference’ is not unlawful sex discrimination against the complaining employee within the ordinary meaning of Title VII’s terms.” The three-judge “panel also disagreed with the plaintiff’s assertion that the ‘paramour preference’ theory of Title VII liability finds support in an EEOC regulation interpreting the statute to prohibit sexual harassment in the workplace.”

The Paramour Preference

The Ninth and other circuits have ruled against the paramour preference as a violation of Title VII and EEOC regulation. The paramour preference is legal. Employment suits claiming it are likely to be dismissed on summary judgment. Employers should be aware of this.

Conclusion

While employers may escape liability for the paramour preference, it can lead to envy and dissention in the workplace. Employers can establish rules prohibiting affairs between management and employees to reduce the odds of further trouble. While Dignity Health no doubt valued Garfield and Shi as employees, their affair allegedly led to a complaint, and it led to a lawsuit that Dignity Health was obliged to defend to the appellate level. The lawsuit could have been avoided with a rule forbidding romantic contact between managers and employees.

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