In 2020, the US Supreme Court confirmed in Bostock v. Clayton County that Title VII's protected classification of "sex" is defined to include protection from discrimination on the basis of sexual orientation and gender identity. This opened the door to claims from employees attempting to further expand the definition of sex under Title VII.
The Ninth Circuit Court of Appeals in Maner v. Dignity Health recently rejected one such attempt from an employee who claimed to have been a victim of "paramour preference." William Maner worked in a medical laboratory under the supervision of a doctor who was in a long-term romantic relationship with one of Maner's female co-workers. After a reduction in funding, the employer terminated Maner while retaining the supervisor's romantic partner. Maner filed suit under Title VII, alleging that the employer's retention of the female romantic partner constituted discrimination against him on the basis of sex.
It was undisputed that the female employee was the beneficiary of preferential treatment; however, the basis of the preference was her relationship with the supervisor (i.e., paramour preference) rather than her sex. Following Bostock, the definition of sex encompasses sexual activity and sex characteristics, which Maner argued should include the romantic involvement of an employee and supervisor.
The Ninth Circuit rejected Maner's argument based on Bostock, wherein the Supreme Court described the test for sex discrimination as follows: "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." Applying this test to Maner's case, the employer's choice of which employee to retain (the one involved with the supervisor) and which to terminate would not have changed if Maner's sex had been different. Therefore, the Ninth Circuit concluded that the employer's selection was not based on sex and did not violate Title VII.
An employer's paramour preference may not violate Title VII, but is it advisable? Of course not. While rejecting Maner's Title VII claim, the Ninth Circuit nonetheless recognized: "Workplace favoritism toward a supervisor's sexual or romantic partner is certainly unfair to similarly situated workers and more than likely harms morale. But . . . employment practices are not unlawful simply because they are unwise."
