The Difference Between Sexual Discrimination and Sexual Favoritism

The Employment Matters blog recently posted about a 10th Circuit case that upheld the dismissal of a sex discrimination case that alleged sexual favoritism as its lynchpin.

What is the difference between sexual discrimination and sexual favoritism? The former is illegal, while the latter isn’t.

In the words of one federal appellate court:

Title VII does not, however, prevent employers from favoring employees because of personal relationships. Whether the employer grants employment perks to an employee because she is a protegé, an old friend, a close relative or a love interest, that special treatment is permissible as long as it is not based on an impermissible classification.

Or, in the words of another federal court:

As the numerous cases finding that preferential treatment for a paramour does not constitute gender discrimination make clear, nothing about the favoritism … had to do with the protected characteristic of gender. Instead, the alleged favoritism was based only upon a special relationship between certain staff members and managers. All other staff members, whether male … or female…, were equally negatively affected by the purported favoritism.

This is not to say that playing sexual favorites in the office is a good idea. It’s far from it. For starters, it's morale crushing for employees to believe (correctly or incorrectly) that they are being treated differently simply because they are not sleeping with or otherwise romantically attached to the boss. It also leads to office gossip and potential conflicts of interest.

Also, lots can go wrong when an office romance goes south. For example, what if, after the relationship ends, one says to the other, “I can do something to your job!”? Or, worse, the threats could be followed by extortion or blackmail.

I will not tell you that employers should forbid their employees from dating. The heart will go where it wants to go. If your employees want to date (or do more), they will, with or without a policy forbidding it. Instead, use workplace romances as an opportunity to educate your employees about your anti-harassment policies and programs.

• Train your employees about what is, and is not, appropriate workplace conduct between the sexes.
• Remind employees that the company expects professional behavior at all times, regardless of the personal relationships (past or present) between employees.
• Advise employees that unprofessional behavior is not tolerated, and will lead to discipline, up to, and including, termination, which includes such behavior during and after romantic or sexual relationships.

Focusing on conduct (and misconduct) instead of the relationships itself provides your employees the tools to avoid the potential problems that can arise from these relationships, which, in turn, will help any organization avoid the litigation expenses these problems can cause. And we can all agree to love that idea.