In Maner v. Dignity Health, No. 18-17159, 2021 U.S. App. LEXIS 24923, at *1 (9th Cir. Aug. 20, 2021), the Ninth Circuit joined the Second, Fourth, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits in rejecting “paramour preference” claims as a standalone source of sex discrimination liability under Title VII, explaining that “sex” in Title VII refers to a “characteristic,” not “an activity.” Discrimination motivated by an employer’s “paramour preference” is not unlawful sex discrimination against the complaining employee within the ordinary meaning of Title VII’s terms.
“Paramour preference” claims under Title VII are rejected in nearly every circuit. The overwhelmingly rebuffed “paramour preference” theory of Title VII liability posits that an employer engages in unlawful sex discrimination when a supervisor’s relationship with a sexual or romantic partner results in an adverse employment action against another employee (in Maner, against a male employee because of a female paramour). Overwhelmingly, courts find this theory does not hold water.
The Maner Court first rejected plaintiff’s argument that “sex” encompasses sexual activity. Instead, the Court interpreted “sex” in context alongside “race,” “color,” “religion,” and “national origin” – “other categories afforded protection under Title VII” – as a characteristic and not as an activity, also stating that sex refers to membership in a class delineated by gender.
The Court then relied on Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (discrimination based on sexual orientation and gender identity is sex discrimination under Title VII, where the individual employee’s sex plays a role in the discharge decision). The Bostock test assesses whether changing the employee’s sex would have yielded a different choice by the employer. The Court opined that if the plaintiff employee was a female, plaintiff still would have been subjected to the supervisor favoring his romantic partner, removing the employee’s sex from the equation.
The takeaway – favoring a sexual or romantic partner over any other employee, while not recommended, is not discrimination. This employee was discriminated against simply because he was not the favored paramour, not because of his sex, for which Title VII affords no protection.