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September 12, 2014
Is favoritism toward paramour gender discrimination?
By Brad Cave
Friendships, cronyism, nepotism, affairs. Many types of personal relationships can result in one employee being
treated better than another. But is favoritism discriminatory? Can a nonfavored employee establish a
discrimination claim against her employer? No, says the U.S. 10th Circuit Court of Appeals. According to the
court, Title VII of the Civil Rights Act of 1964 does not prohibit favoritism based on a special relationship.
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'I like you best'
An employer paying its CEO's sister a higher salary than other employees who perform similar work, offering
the most lucrative deals to the boss's best friend, or giving playoff tickets to a manager's boyfriend is
permissible because the special treatment is based on a special relationship between the parties, not on a
protected characteristic. Differential treatment crosses the line into unlawful discrimination only when it is
based on a protected classification (e.g., gender, race, or age).
In a recent decision, the 10th Circuit—which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and
Wyoming—affirmed that principle, ruling that a supervisor's favoritism toward a female subordinate based on a
purported intimate relationship was not reverse gender discrimination against the subordinate's male
counterpart.
Reverse gender discrimination under Title VII
Project manager Kenyon Brady Clark sued his employer, Cache Valley Electric Co., for alleged violations of
Title VII. Clark claimed that his supervisor, Myron Perschon, favored Melissa Silver, a female project manager,
over him because Perschon and Silver were in a romantic relationship. Clark asserted that Perschon gave Silver
better work assignments, paid her more for performing less work, and performed most of her job duties.
Although it turned out that Perschon and Silver were not having an affair, Clark asserted that "whether they
were having sex or not, there was favoritism." When Clark was asked about the reason for the favoritism during
his deposition, he admitted that he did not have another reason for it if it was not due to a romantic relationship.
The 10th Circuit analyzed Clark's lawsuit as a reverse gender discrimination claim. Clark had to present
evidence that supported an inference that Cache discriminated against the majority (i.e., male employees) or that
"but for [his] status, the [favoritism] would not have occurred." Significantly, he did not assert that the
favoritism was due to Silver being female or that Cache treated women more favorably than men. Instead, he
focused on the preferential treatment Perschon gave Silver. That tactic was fatal to Clark's claim.
The court cited numerous cases in which special relationships such as friendships, nepotism, and personal
fondness or intimacy were motives for preferential treatment. In those cases, courts ruled that the favoritism was
not within the purview of Title VII's antidiscrimination provisions. Because Clark's discrimination claim was
based on favoritism shown to a coworker—not on a protected characteristic—it was not covered by Title VII.
The 10th Circuit affirmed the trial court's grant of summary judgment (pretrial dismissal) in favor of Cache.
Retaliation claim fails, too
Clark also asserted a retaliation claim against Cache. Clark claimed that Perschon retaliated against him by
trying to get a competitor to hire him, refusing to communicate with him, and distancing himself from him.
Further, Clark alleged that he was fired for complaining about favoritism and retaliation. He complained about
the alleged affair between Perschon and Silver to management, stating it was difficult to respond to vendors and
suppliers who had questions about their relationship. He reported that Perschon and Silver acted like a married
couple. Later, he complained about the preferential treatment Perschon gave Silver, including better job
assignments and larger bonuses.
In a letter to Cache's CEO and HR department, Clark wrote that his career suffered serious adverse effects
because of his coworkers' alleged affair. He claimed that the affair created a hostile work environment and that
the company had a responsibility to ensure that the workplace was free of harassment and retaliation. Shortly
after discussing the letter with HR and Cache's legal counsel, Clark was terminated.
The 10th Circuit rejected Clark's retaliation claim. To establish a retaliation claim under Title VII, Clark had to
show that (1) he engaged in protected opposition to discrimination, (2) a reasonable employee would have
found the challenged action (favoritism) materially adverse, and (3) there was a causal connection between his
protected activity and the materially adverse action.
The court concluded that Clark failed to show that he engaged in protected opposition to discrimination. He had
to show that (1) he had a reasonable good-faith belief that he engaged in protected opposition to discrimination
by complaining about the favoritism and (2) his good- faith belief was both subjectively and objectively
reasonable. He failed to do that.
Although he made statements about a "hostile work environment" and "discrimination" in his complaints to
Cache, the court found that the statements were conclusory and unrelated to gender discrimination. The
statements were about Perschon's favoritism toward Silver based on their alleged inappropriate relationship,
which was not gender discrimination. Therefore, Clark's retaliation claim failed.
Just 'cuz it's legal doesn't mean it's smart
Clark's reverse discrimination lawsuit was a little more cut-and-dry than most claims because he essentially
admitted that the preferential treatment was not due to Silver being female. The outcome may have been
different if Clark had provided evidence that Perschon treated women better than men.
Think about situations in which special relationships result in favoritism—for example, when the boss takes his
male cronies to play golf with clients while female employees toil away at work. Even though courts have
distinguished favoritism based on special relationships from discrimination based on a protected class, it's wise
to steer clear from favoring some employees over others, especially when it comes to pay, bonuses, and benefits
since nonfavored employees may be able to prove financial damages. Making sure employees' terms and
conditions of employment are on even footing will help employees be productive, increase morale, and keep
your company out of court.
Brad Cave, an editor of Wyoming Employment Law Letter, can be reached at [email protected].