With love in the air on this Valentine’s Day, here’s a friendly reminder to keep it under check in the workplace. Preferring a lover over others at work may be a natural inclination, but it can lead to a sexual harassment claim.
“Paramour preference” sexual harassment exists when a supervisor gives preferential treatment to a sexual partner, thus creating a hostile environment for those employees who aren’t involved with the supervisor and not receiving preferential treatment.
A viable claim under this theory brought under the Fair Housing and Employment Act (FEHA)(Govt C §§12900-12996), can’t be based on isolated instances of favoritism toward the paramour. Proksel v Gattis (1996) 41 CA4th 1626, 1630. Rather, the plaintiff has to show that there’s enough widespread sexual favoritism that was severe or pervasive enough to alter the plaintiff’s working conditions, i.e., an environment in which
the demeaning message is conveyed to female employees that they are viewed by management as ‘sexual playthings’ or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors.
Miller v Department of Corrections (2005) 36 C4th 446, 451, 30 CR3d 797.
Federal law basically mirrors California law when it comes to the viability of the paramour preference theory under Title VII (42 USC §§2000e—2000e-17). See Perron v Department of Health & Human Servs. (ED Cal, Nov. 29, 2007, No. 2:06-CV-02429-MCE-GGH) 2007 US Dist Lexis 87812. The Equal Employment Opportunity Commission (EEOC) has taken the position that, although isolated instances of favoritism don’t violate Title VII,
[i]f favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors.
EEOC Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism (Jan. 12, 1990, No. N-915.048), Section C.
According to the EEOC, paramour preference harassment can also support a claim of quid pro quo harassment: “if a female employee is coerced into submitting to unwelcome sexual advances in return for a job benefit, other female employees who were qualified for but were denied the benefit may be able to establish that sex was generally made a condition for receiving the benefit.” EEOC Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism (Jan. 12, 1990, No. N-915.048), Section B. See 29 CFR §1604.11(g).
So if you work with your Valentine, treat him or her as you would any other employee; save your preferential treatment for when you two are off duty.
For more on sexual and other forms of harassment, turn to CEB’s Wrongful Employment Termination Practice: Discrimination, Harassment & Retaliation, chapter 4. Also, harassment is one of many issues covered in CEB’s program Essential Employment Law Issues: Discrimination, Harassment, Retaliation, and Other Claims; Security and Privacy Issues, available On Demand.
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