Thursday, May 2, 2013

Sex in the workplace does not support sex discrimination charge

Title VII does not recognize a claim that the boss gave his paramour favorable treatment in the workplace. Other women in the workplace cannot therefore argue that any retaliation arising from complaints about the paramour preference violated Title VII. That's the holding in a decision last week from the Court of Appeals.

The case is Kelly v. Howard I. Shapiro & Associates, issued on April 26. The decision describes a particularly toxic work environment. Plaintiff worked in the family business. Her brother was fooling around with a female subordinate, Ms. Joyce. According to the lawsuit, the workplace "became so completely permeated with sexual favoritism towards Ms. Joyce that Ms. Kelly's duties and responsibilities were substantially reduced, and her leadership duties were removed in favor of Ms. Joyce, notwithstanding the fact that that she was significantly senior to Ms. Joyce." Joyce was insubordinate and had her run of the place. Kelly added that as a result of the illicit love affair, the workplace atmosphere was "demeaning to women." Kelly eventually quit her job over this.

Rule 12 dismissal is affirmed. Kelly cannot prove a Title VII violation. Yes, Title VII prohibits sex discrimination. But this was not sex discrimination, the Second Circuit (Walker, Wesley and Droney) says. The Second Circuit held in 1987 that disparate treatment based on a romantic relationship is not discrimination. This may seem paradoxical, as the relationship all about sex, and the male supervisor is obviously doing things to promote his affair. But that does not mean the plaintiff is being treated differently because she is a woman. The discrimination stems from "a romantic relationship between an employer and a person preferentially treated."

This may seem a clunky distinction, but the Second Circuit seems adamant about this, citing other cases that support this kind of reasoning. What it means for Kelly is that her complaints about her brother's hanky-panky are not a legitimate ones under Title VII, which means they are not protected activity because she could not have believed in good faith that she was complaining about gender discrimination. So her retaliation claim -- which requires a showing that she engaged in protected activity -- fails as a matter of law, and her complaint fails to state a claim, particularly since does not support her allegation that the relationship "resulted in an atmosphere demeaning to women."

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