Contact the experienced employment law attorneys at Maya Murphy, P.C. today at (203) 221-3100 or JMaya@Mayalaw.com.

The Equal Employment Opportunity Commission (EEOC), interprets and enforces Title VII’s prohibition of discrimination as forbidding any employment discrimination by employers against employees based upon race, color, gender, religion, sex, age, genetic information, or national origin.

WHEN SEXUAL FAVORITISM IS NOT IN VIOLATION OF TITLE VII

Both the EEOC and the courts have declared that sexual harassment violates Section 703 of Title VII.  However, a very important question for any employer is what type of behavior constitutes sexual harassment and thus violates Title VII?  It is important to note that not all types of sexual favoritism violate Title VII.

It is the EEOC’s position that Title VII does not prohibit isolated instances of preferential treatment based upon consensual romantic relationships.  An isolated instance of favoritism toward a “paramour” (or a spouse, or a friend), may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders.  A female charging party who is denied an employment benefit because of such sexual favoritism would not have been treated more favorably had she been a man nor, conversely, was she treated less favorably because she was a woman. See also Miller v. Aluminum Co. of America, 679 F. Supp. 495, 47 EPD ¶ 38,112 (W.D. Pa.), aff’d mem., 856 F.2d 184 (3d Cir. 1988); DeCintio v. Westchester County Medical Center, 807 F.2d 304, 42 EPD ¶ 36,785 (2d Cir. 1986), cert. denied, 108 S.Ct. 89, 44 EPD ¶ 37,425 (1987).

However, 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.  In order for a woman to have obtained the job benefit at issue, it would have been necessary to grant sexual favors, a condition that would not have been imposed on men. This is substantially the same as a traditional sexual harassment charge alleging that sexual favors were implicitly demanded as a “quid pro quo,” in return for job benefits under the EEOC’s interpretation.

WHEN SEXUAL FAVORITISM IS IN VIOLATION OF TITLE VII

If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct may be able to 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.  In that situation, a sexual message is implicitly provided to the employees that the managers view women or men as sexual, thereby creating an atmosphere that is demeaning to both sexes.  Both men and women who find this offensive can establish a violation if the conduct is, “sufficiently severe or pervasive ‘to alter the conditions of [their] employment and create an abusive working environment.’”

WHY THIS IS PROBLEMATIC

According to the EEOC, managers who engage in widespread sexual favoritism may also communicate a message that the way for women to get ahead in the workplace is by engaging in sexual conduct, or that sexual solicitations are a prerequisite to their fair treatment. This can form the basis of an implicit “quid pro quo,” harassment claim for female employees, as well as a hostile environment claim for both women and men who find this offensive.

In its guidance on sexual favoritism in the workplace, the EEOC illustrates this important point with the case of Broderick v. Ruder, 685 F. Supp. 1269, 46 EPD ¶ 37,963 (D.D.C. 1988).  In Broderick, a staff attorney at the Securities and Exchange Commission alleged that two of her supervisors had engaged in sexual relationships with two secretaries who received promotions, cash awards, and other job benefits. Another of her supervisors allegedly promoted the career of a staff attorney with whom he socialized extensively and to whom he was noticeably attracted.  In addition, there were isolated instances of sexual harassment directed at the plaintiff herself, including an incident in which her supervisor became drunk at an office party, untied the plaintiff’s sweater, and kissed her.

The Court found that the conduct of these supervisors created an atmosphere of a hostile work environment offensive to the Plaintiff and several other witnesses. The Court also noted that the supervisors’ conduct in bestowing preferential treatment upon those who submitted to their sexual advances undermined the plaintiff’s motivation and work performance and deprived her and other female employees of promotions and job opportunities.  The EEOC extrapolated this reasoning further noting the facts of Broderick, could also support an implicit “quid pro quo,” harassment claim since the managers, by their conduct, communicated a message to all female employees in the office that job benefits would be awarded to those who participated in sexual conduct.

If you are an employer and are faced with an employee claim of discrimination under Title VII, or are facing a claim under jurisdiction of the EEOC, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut including New Canaan, Bridgeport, White Plains, and Darien.

Source: eeoc.gov