Paramour Preference Cases (sex discrimination)
Sex discrimination as defined in Title VII prohibits discrimination be-cause of sex, not sex which causes or results in discrimination. Para-mour preference cases demonstrate the law’s limited reach, as when an employee becomes upset because his/ her supervisor is allegedly having a romantic affair with a co-worker, and that co-worker is allegedly being favored by the sup-ervisor. Because preferring a paramour discriminates against all non-paramours of both sexes (it is discrimination because of an existing romantic relationship, not discrimination because of the sex of the paramour or even the sex of the complaining employee), such romances are not covered by Title VII.
A recent New York district court case which resulted in an employer victory illustrates the point. The plaintiff, an advertising account manager, was told her work performance was not meeting expectations. After consulting an attorney she presented management with a letter asserting that her work performance was suffering because of a personal and intimate relationship between her immediate supervisor and a co-worker. She was fired for performance reasons thirteen days after that meeting and eight days after delivering her letter complaining about her supervisor’s romantic affair.
The plaintiff lost because, according to the judge, her belated complaint “did not oppose a practice that was unlawful or one that she could have reasonably believed was unlawful.” Even given the short period of time between her complaint and her termination, she had no viable retaliation claim. More-over, her attempt to make out a hostile work environment claim based on a “handful” of instances where she personally observed or supposed contact between the two was insufficient because they were neither severe nor pervasive and also because their actions were not directed at the plaintiff because of her gender. The judge found that the plaintiff’s complaint, after failing to mention the circumstances in a meeting where her work performance was reviewed, made her claim “that this was a good faith belief more untenable.”
Regardless of such victories, employers face difficulties related to workplace romances on an ever increasing scale as more employees labor longer hours together, and close friendships increasingly are taken for granted. And as more women move into professions once dominated by men, there are greater temptations for both sexes.
More reason for employer concern is the assertion by professionals who study spouses who stray that the ground for dangerous emotional attachments outside marriage is fertile in the workplace, and a new crisis of infidelity is breeding in the workplace. Marital researcher Shirley Glass says that it does not necessarily involve thrill seekers, but happens between peers who are in good marriages, “people who unwittingly form deep, passionate connections before realizing that they’ve crossed the line from platonic friendship into romantic love.”
She believes affairs do not have to include sex; “infidelity is any emotional or sexual intimacy that violates trust.” An increasing number of experts agree with this revised concept of an affair. Glass says three things are present when friendships edge into emotional affairs: transgressors share more of their “inner self, frustrations and triumphs than with their spouses”; they engage in “secrecy and deception,” like neglecting to say ‘[w]e meet every morning for coffee’; and there is at least an unacknowledged sexual attraction, even if they do not act on the chemistry.
