The Catholic University of America

NACUA Notes (National Association of College and University Attorneys), May 30, 2012. Volume 10, Number 10.

TOPIC:

PARAMOUR FAVORITISM IN THE COLLEGE WORKPLACE

 


INTRODUCTION:

In April of this year, in a much-publicized story, the University of Arkansas fired its head football coach, Bobby Petrino, for “unfairly hiring his mistress and intentionally misleading his boss about everything from their relationship to her presence at the motorcycle accident that ultimately cost him his $3.5 million-per-year job.” [1] The University discovered that the coach had hired the young woman with whom he had been having an affair for the position of student-athlete development coordinator, selecting her over 159 other applicants for the position just sixteen days after it was posted – much quicker than the University’s normal thirty-day hiring process. [2] In May, the University of California at Berkeley faced a similar incident and fired a former vice chancellor who had tripled the pay of her subordinate – and secret lover – from $41,000 to $120,000 in just five years. [3]

If you ask a busy college or university administrator whether this type of favoritism – namely, hiring or promoting a paramour [4] – is illegal, he or she might understandably respond: “Of course! It is unfair and it must be illegal!” This is a widely held and logical point of view; Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sex, and sexual favoritism seems to inherently discriminate against others based to some degree on their sex. [5] Nonetheless, almost all courts considering the sexual favoritism issue have rejected the idea that Title VII forbids sexual favoritism as such.” [6] Claims by co-workers who are not treated as favorably as an employer’s paramour typically do not implicate Title VII’s protections because those co-workers suffer the same results of unfair favoritism whether they are male or female. [7]

More than twenty years ago, the Equal Employment Opportunity Commission (“EEOC”) addressed paramour favoritism and provided direction in a policy guidance statement. [8] Soon thereafter, researchers began noting the problem in the literature concerning sexual harassment, [9] and research and discussion of sexual favoritism continues through today in law firms, [10] law review articles, [11] and the professional media. [12] Additionally, numerous cases – some involving colleges and universities – have reached the courts through the years and, although most of these decisions hold that there is no liability under Title VII for paramour favoritism, plaintiffs have explored various avenues to attempt to prove damages for employment discrimination.

While hiring or promoting a paramour may not be clearly illegal under Title VII, there are powerful reasons why colleges and universities may wish to draft a policy to discourage, prohibit, or at least manage such actions. This NACUANOTE will address the current state of the law and provide policy considerations for addressing potential cases of paramour favoritism in the workplace.

 

DISCUSSION:

Paramour Favoritism: Overview of Case Law and Policy

A. Paramour Favoritism in the Employment Context

The first appellate court to address “paramour favoritism” was the Second Circuit in DeCintio v. Westchester County Medical Center. [13] Seven male respiratory therapists sued the Medical Center for sex discrimination, claiming that their supervisor, in order to ensure that the woman with whom he was romantically involved was given a promotion, only considered those applicants who were certified by a specific professional organization. Since the favored woman was the only applicant who had the certification, the plaintiffs alleged the requirement was pretextual.

At trial, the district court found that the Medical Center had violated both the Equal Pay Act and Title VII. On appeal, the Second Circuit reversed both claims, holding: “The defendant’s conduct, although unfair, simply did not violate Title VII . . . . The plaintiffs were not prejudiced because of their status as males; rather, they were discriminated against because Ryan preferred his paramour. Appellees faced exactly the same predicament as that faced by any woman applicant for the promotion.” [14]

In 1990, the EEOC, under the direction of then-Chair Clarence Thomas, changed its position on sexual favoritism and adopted the view set forth in DeCintio that not all types of sexual favoritism violate Title VII. The Agency issued policy guidance [15] stating the following:

• 

That “isolated instances” of paramour favoritism, in the absence of other factors establishing the existence of sexual harassment, did not violate Title VII, because neither a male nor a female employee could show that he or she had been treated less favorably than another employee of the opposite sex based solely on the fact that a supervisor treated a paramour more favorably;

• 

That situations involving sexual relationships between employees and supervisors could give rise to Title VII liability if the sexual relationship were coerced or necessary for a member of a particular sex to obtain an employment benefit; and

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That widespread favoritism based on granting sexual favors also might be tantamount to a hostile work environment. [16]


Since 1990, most, but not all, federal and state courts considering the issue have followed DeCintio and the 1990 Policy Guidance. [17] The most common argument against recognizing paramour favoritism is the one adopted by the Second Circuit in DeCintio that because an employee of the opposite sex could have suffered the same fate, the plaintiff was not disadvantaged because of his or her gender. Other arguments posit that recognizing sexual favoritism as a valid cause of action under Title VII would be like “launching a missile to kill a mouse” and would provide a slippery slope for other supposedly less egregious forms of discrimination to enter the courtroom. [18]

Despite the prevailing view that Title VII’s prohibition against sex discrimination in employment does not proscribe favoritism based on a sexual relationship, some courts have held that it does (or could). For example, the California Supreme Court, in a unanimous 2005 decision, Miller v. Department of Corrections, overturned two lower court decisions in favor of the employer and ruled instead that a triable issue of fact existed as to whether a prison warden’s favoritism of the employees with whom he had sexual affairs constituted sexual harassment. [19] The facts in this case were particularly egregious. Plaintiffs Edna Miller and Frances Mackey were employees of the California Department of Corrections. Lewis Kuykendall served in management positions and then as warden at two of the California correctional institutions. He engaged concurrently in sexual affairs with subordinate employees Bibb, Patrick, and Brown. When he transferred from one prison to another, he arranged to have his sexual partners transferred with him. He also promised and granted unwarranted and unfair employment benefits to the three women. He even granted Brown the power to abuse other employees who complained about the affairs.

There was also evidence that advancement for women at one of the prisons was based upon sexual favors, not merit. Kuykendall pressured the personnel committee to transfer Bibb to another prison with him and promote her, despite the conclusion that she was not eligible or qualified. On two occasions Kuykendall preferentially promoted Brown over plaintiff Miller, although Miller was more qualified. Even Brown acknowledged that affairs between supervisors and subordinates were common in the Department and were widely viewed as a method of advancement.

Miller and Mackey sued the Department, alleging that Kuykendall’s conduct constituted sexual harassment in violation of the California Fair Employment and Housing Act (FEHA). The trial court granted summary judgment to the Department, concluding that the conduct did not support a claim of sexual harassment. The court of appeals affirmed.

In overturning the lower courts’ decisions, the California Supreme Court relied heavily on the EEOC Policy Guidance observing that, although isolated instances of sexual favoritism in the workplace do not violate Title VII, widespread sexual favoritism may create a hostile work environment in violation of Title VII by sending the message that managers view female employees as “sexual playthings” or that “the way for women to get ahead in the workplace is by engaging in sexual conduct.” [20] The court concluded that “an employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment.” [21]

To date, the United States Supreme Court has not addressed the sexual favoritism or paramour issue. In 1987, the Court denied certiorari in DeCintio, which left standing in the Second Circuit the holding that sexual favoritism is not actionable under Title VII. [22] In 1997, the Court again refused to grant certiorari in another case that raised the issue of sexual favoritism, Becerra v. Dalton, [23] thus leaving intact the Fourth Circuit’s opinion that “a voluntary ongoing friendship or relationship was not the basis for a valid Title VII suit.” [24]

Congress amended Title VII of the Civil Rights Act in 1991 by adding § 703(m), which states that “[e]xcept as otherwise provided” in Title VII, unlawful sex discrimination is established once the plaintiff demonstrates that sex “was a motivating factor for any employment practice, even though other factors also motivated the practice.” [25]

Some commentators argue that this new “motivating factor” test has the potential to fully legitimize a cause of action for sexual favoritism if the courts are willing to accept the fact that gender plays a key role in sexual favoritism cases. [26] While scholarship in this area is sparse, there is division among those who have addressed the subject. [27]

B. Speaking Out in Opposition to Paramour Favoritism

Beyond prohibiting discrimination based on sex, Title VII also prohibits retaliation against an employee who seeks either to: (i) vindicate his or her rights under the Act by participating in an administrative or judicial investigation, proceeding or hearing; or (ii) express opposition to practices that the employee reasonably believes to be prohibited by the Act. [28]

In the paramour favoritism context, retaliation claims can arise (though they are largely unsuccessful) when employees claim that an adverse action was taken against them for speaking out against alleged paramour favoritism. For example, in 2006, a Georgia district court found that an employer was not liable for retaliation under Title VII for any actions it took against a female employee for complaining that her male supervisor gave preferential treatment to a female co-worker with whom the supervisor had a romantic relationship. The court reasoned that: (i) the female employee did not have an objectively reasonable belief that the employer violated the law, given the unanimity with which courts have declared favoritism of a paramour to be gender-neutral; (ii) a reasonable person would have concluded that any hostile environment grew out of the employee’s personal conflicts with the supervisor and co-worker; and (iii) the employee did not allege that she was evaluated or judged on the basis of her sexuality. [29]

The Fifth Circuit rejected a similar claim in Wilson v. Delta State University, [30] where a male sued, contending that the University declined to renew his contract in retaliation for his complaints to the president that an unqualified female received an appointment to a high level position because she was having an affair with a vice-president. The plaintiff argued that he reasonably believed the female got the job because of the affair and that this favoritism amounted to discrimination in violation of Title VII. Affirming the district court’s judgment as a matter of law in favor of the University, the court said: “Because it is settled law in this Circuit that such paramour favoritism does not run afoul of Title VII, [Plaintiff’s] alleged belief to the contrary could not have been reasonable.” [31] Many courts denying plaintiffs’ retaliation claims have based their decisions on the ground that the plaintiffs could not have had a “reasonable belief” that sexual favoritism violated Title VII in light of existing case law. [32]

One of the few cases decided in favor of the plaintiff in a sexual favoritism retaliation claim is Perron v. Secretary, Dept. of Health and Human Services. [33] There, the Federal District Court for the Eastern District of California denied summary judgment to defendant, holding that it could not rule out that the plaintiff engaged in protected activity when voicing her opposition to her supervisor regarding his affair with a co-worker upon whom he bestowed benefits because of her good faith belief that such favoritism was unlawful. [34]

II. Practical Policy Considerations

While hiring or promoting a paramour may not be clearly illegal under Title VII, there are powerful reasons why colleges and universities may wish to draft a policy to discourage, prohibit, or at least manage such actions. Paramour favoritism can lower workplace morale, create conflicts of interest, and if enough “isolated incidents” of paramour favoritism occur, it could bring the institution closer to the “hostile work environment” situation imagined by the EEOC’s policy guidance. Institutions must balance these considerations with respecting the privacy and associational rights of their employees to engage in consensual relationships. [35]

Typically, institutions of higher education can develop one of three broad positions regarding employee relationships.

At one end of the spectrum, an institution could enact a strict policy prohibiting office romances. Such policies set a clear standard that makes it easier for institutions to take action against employees whose relationships may put the institution at risk for sexual harassment or discrimination claims. However, blanket policies like this tend to be difficult to enforce. Perhaps more importantly, they implicate the free association and privacy rights of employees, can come off as paternalistic or antiquated to employees, and promulgate a culture of rumor and suspicion around office relationships which may be more harmful than helpful.

At the other end of the spectrum, some institutions adopt no paramour or consensual relationship policy at all, relying instead on existing nepotism or sexual harassment policies. Yet typical nepotism policies do not capture the paramour relationship, as they are drafted to prevent advantageous employment decisions with respect to direct relatives rather than paramours. And while a sexual harassment policy may address situations that rise to the level of traditional sexual harassment, it does little to help institutions recognize and address workplace relationships that may not rise to that level, but are nonetheless unfair or harmful to the institution by causing conflicts of interest or creating the beginnings of a hostile work environment. Moreover, having no policy at all can cloud the position of the university if an adverse action against one of the employees ever becomes necessary in the future.

For these reasons, institutions should consider drafting a clear policy that states the institution’s commitment to a discrimination-free workplace, encourages open communication when potentially problematic relationships arise, and focuses on managing romantic relationships that cause a conflict of interest or a power imbalance, such as those between supervisors and those they oversee. These policies will let employees know the ground rules of their employment and make them feel more comfortable in the workplace. Effective policies will be tailored to the particular institution’s own culture, but should likely include:

• 

A statement of the institution’s commitment to a nondiscriminatory work environment.

• 

A statement prohibiting or strongly discouraging sexual favoritism of any kind. As noted above, the EEOC and most courts are clear that isolated incidents of sexual favoritism are not illegal discrimination, so how strongly this section of the policy is worded will depend upon the institution’s own culture and its desire to meet or exceed federal policies.

• 

Specific provisions discouraging or prohibiting relationships involving imbalances of power or conflicts of interest. Again, this will depend on the institutional culture.

• 

A method for reporting a romantic relationship, when appropriate, so that steps may be taken to avoid conflicts of interest or harm to the institution.


The following two policies exemplify this middle-of-the road approach that both recognizes the reality of workplace romances, but also sets forth a procedure for dealing with them when they could be potentially problematic. The University of Arizona’s policy states:

No University employee shall engage in a romantic or sexual relationship with another employee when one of those employees supervises or evaluates the other employee. . . . When an employee is involved in a relationship with another employee or student whom s/he supervises, teaches or evaluates, such that a conflict of interest arises, as defined herein, then that relationship shall be subject to the disclosure and management of conflicts provision of this policy. [36]

Princeton University’s policy on nepotism and personal relationships in the workplace similarly states:

Conflict of interest also exists when there is a consensual romantic or sexual relationship in the context of employment supervision or evaluation. Therefore, no supervisor may influence, directly or indirectly, salary, promotion, performance appraisals, work assignments or other working conditions for an employee with whom such a relationship exists.

Any supervisor involved in a consensual romantic or sexual relationship, in the context of employment supervision, must discuss the matter on a confidential basis with his or her own supervisor or with the Office of Human Resources to assess the implications for the workplace and make arrangements to ensure that employment-related decisions are made in an appropriate and unbiased setting. [37]

Policies like these, which draw clear lines for employees and provide guidance on steps to take if employees do enter into a relationship, are especially helpful. Universities or system boards that wish to design such policies to address paramour favoritism should explore the issues particular to their own campuses, survey other policies, and determine what best balances employee rights against efficient operations.

And of course, if an institution does implement a policy, it is critical to uniformly and consistently apply it, make it easily accessible, and train campus leaders on the policy. Deans, department heads, athletic directors, and countless others on campus will have to know how to handle these potentially personal conversations with the employees they supervise, so training on paramour favoritism for these individuals should be built into any existing training on sexual harassment or discrimination issues.


CONCLUSION:

Although courts have largely held that paramour favoritism does not violate Title VII’s prohibition on gender discrimination, the issue remains robust for college and university attorneys, administrators, and faculty members. Cases such as Miller and Perron suggest that some courts disagree with this flat proscription, reasoning that widespread favoritism could create a hostile work environment or that employees may not be aware that complaining of such favoritism is not a protected activity.

While adopting policy language addressing paramour favoritism may seem reasonable, crafting such a policy also dips the college or university into the murky waters of defining and policing employee relationships. Nonetheless, college and university counsel should, at minimum, be aware of the possibility of litigation surrounding circumstances in which paramours are favored over qualified applicants for employments decisions, and should consider drafting policies to address these situations before they occur.


FOOTNOTES

 

AUTHORS:

Kerry Brian Melear, University of Mississippi, Oxford, MS

Mary Ann Connell, Mayo Mallette, PLLC, Oxford, MS

 


RESOURCES:

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NACUA Resource Page on Sexual Harassment

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Meghan E. Bass, Dangerous Liaisons: Paramour No More, VAL. U. L. REV. 303, 328 (2006).

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Helena Amaral, Fraternization, Schmidt Labor Research Center Seminar Research Series (2006).

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University of South Florida, Diversity & Equal Opportunity Office, Sex Discrimination – What Supervisors Need to Know

 

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