Sex Discrimination Claim Citing Supervisor’s Preference for Paramour Fails

By Jeffrey Rhodes October 27, 2021

​The 9th U.S. Circuit Court of Appeals rejected a plaintiff's claim that the elimination of his job was sex discrimination because his supervisor had a consensual sexual relationship with a female subordinate who remained employed.

The plaintiff worked as a biomedical design engineer in the obstetrics and gynecology laboratory of a medical doctor. The lab depended on a steady stream of grant awards to fund employee salaries and performed research partly to publish data and develop marketable intellectual property.

The plaintiff recruited research subjects, analyzed project data, prepared grant applications and assisted with patent filings. At first, the laboratory operated out of the University of Texas Medical Branch in Galveston, Texas. The plaintiff's co-workers included two researchers, one man and one woman.

Shortly after being hired, the plaintiff learned that the doctor and the female researcher were in a long-term romantic relationship that began as a workplace affair while the doctor was married to another woman. The doctor and female researcher lived together and occasionally demonstrated physical affection at workplace events. The doctor brought the female researcher with him to research conferences to which other employees were not invited and conferred upon her a greater share of workplace opportunities related to publications and intellectual property than the plaintiff felt she should have received.

In January 2008, the doctor decided to relocate the lab to an installation operated by Dignity Health in Phoenix. He persuaded Dignity Health to offer jobs at the new facility to the existing team. The plaintiff accepted the offer and intended to work in Phoenix. That April, however, the plaintiff was arrested at work in Galveston and charged with aggravated sexual assault of his 7-year-old daughter.

The plaintiff denied the allegations but pleaded guilty to a lesser included offense. The plaintiff moved to Phoenix while the charges were pending and received several positive performance reviews and merit pay increases. In August 2010, a Texas trial court sentenced the plaintiff to eight years of probation, which required him to resume living in Texas and to check in monthly with probation officials in Galveston.

In November 2010, the plaintiff began working remotely and supporting the lab from a satellite office in Galveston while serving out his probation. The plaintiff retained his position and promised to work full time on tasks conducive to independent and remote completion.

Around the same time, the doctor recommended that Dignity Health eliminate the other male researcher's position because the lab suffered a decline in funding. That researcher complained about the relationship between the doctor and the female researcher, and Dignity Health investigated. As a result, the female researcher was reassigned on paper but continued to work in the lab with the doctor.

In August 2011, the doctor submitted a highly negative review of the plaintiff's performance dating back to the beginning of the remote-work arrangement. The doctor recommended that the plaintiff either return to Phoenix immediately or be discharged. The plaintiff sent multiple letters to Dignity Health officials in an attempt to retain his position. He contested the doctor's claims and offered to improve his performance. 

Dignity Health eliminated the plaintiff's job, citing his poor performance review and the lab's lack of funding. Ten days later, the plaintiff protested his termination in a letter to Dignity Health's senior vice president for human resources. He claimed the rationale for his termination was pretextual and argued that management apportioned laboratory funds in a nepotistic manner, violated equal employment opportunity requirements and committed unfair labor practices.

The senior vice president of human resources upheld the decision. The plaintiff filed charges with the Equal Employment Opportunity Commission (EEOC) and later brought a lawsuit under Title VII of the Civil Rights Act of 1964, claiming sex discrimination and retaliation. Dignity Health moved for summary judgment to dismiss the suit, and the district court granted the motion.

On appeal, the plaintiff argued that the doctor's preference for the female researcher discriminated against him based on sex. The 9th Circuit rejected this reasoning because it was the researcher's status as a paramour that allegedly gave her an advantage and thus the doctor's preference did not discriminate based on sex.

The plaintiff cited EEOC guidance recognizing that disadvantaged employees may have a Title VII claim when a supervisor prefers a subordinate who succumbs to quid pro quo solicitations. The 9th Circuit found that this reasoning applied only to harassment cases and not to consensual sexual relationships.

The 9th Circuit upheld the district court's dismissal of the claims.

Maner v. Dignity Health, 9th Cir., No. 18-17159 (Aug. 20, 2021).

Professional Pointer: Like nepotism, consensual sexual relationships in the workplace are not barred by Title VII. Nonetheless, they create difficult staffing situations that may result in legal claims.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.



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