So your boss is having an affair with a co-worker. Not your problem, right? Well, not necessarily. Let's say you are a very high performer and obviously in line for a promotion. But, who ends up receiving the position and the pay raise? Your boss's paramour. Can that be a basis for sexual harassment, even if he never made any sexual advances toward you?
"Paramour preference" refers to situations where a supervisor gives preferential treatment to a sexual partner. Those employees who aren't involved with the supervisor and, as such, do not receive preferential treatment, are the ones that usually bring the claim for sexual harassment.
What does the law say?
Despite the pervasiveness of sexual favoritism in the workplace, there is still a hot debate over whether it can be the basis for a sex discrimination or harassment claim. While the United States Supreme Court has not yet addressed this issue directly, some federal district courts have. For example, in Perron v. Department of Health & Human Servs., the California district court ruled that, "where a supervisor's preference for his or her paramour is transformed from simple favoritism to the concrete bestowal of tangible, economically valuable employment benefits denied other employees, such conduct can constitute prohibited discrimination."
The EEOC's Guidelines on Sexual Favoritism
The Equal Employment Opportunity Commission (EEOC) has taken the position that, the sexual favoritism must be widespread in the workplace. The conduct can then establish a hostile work environment regardless of whether any objectionable conduct was directed at them. It also would not matter if those who are treated favorably were willing participants. In other words, those who receive preferential treatment do not have to be victims of quid pro quo sexual harassment. An example of quid pro quo sexual harassment is when an employee is threatened with losing her job if she does not agree to be sexually involved with a supervisor.
When there is evidence of paramour preference harassment or sexual favoritism, other employees can also bring quid pro quo sexual harassment claims, essentially saying that sex was generally made a condition for receiving employment-related benefits.
What should I do if I suspect sexual favoritism?
You have been denied an employment benefit or privilege that was, instead, given to a co-worker who is sexually involved with your supervisor. The first thing to do, like any other victim of sexual harassment, is to report it. Reporting sexual harassment is critical because an employer may avoid liability for sexual harassment if management is never made aware of the complaint.
If you believe you are the victim of sexual harassment, review your employer's anti-harassment policy and follow its procedures to report the conduct. If you have more questions or need legal advice, feel free to contact Michel | King Michel & Kingeither online or by calling us at (205) 265-1880.