A Supervisor-Subordinate Romance Isn’t Necessarily Discrimination

By Eric B. Meyer

Over the weekend, I read this case (Clark v. Cache Valley Electric Co.) in which a male plaintiff alleged discrimination because his supervisor was allegedly schtupping a female subordinate and treating her better.

(The court said “voluntary romantic affiliation,” but why say in three words, what you can say in one?)

Specifically, the plaintiff alleged that, in exchange for putting out, his female co-worker received better job assignments, bonuses, and other working conditions.

Favoritism isn’t discrimination

Well, the fatal flaw in the plaintiff’s argument, as the court pointed out, is that favoring one female subordinate over one man, and the rest of the workforce (both male and female), because the female subordinate is getting jiggy with it, may not be fair, but it’s not discrimination either. As the court put it:

Mr. Clark presented no evidence that Cache Valley treated women more favorably than men, and no circumstances giving rise to an inference of discrimination. Indeed, as the district court concluded, Mr. Clark merely provided evidence that Mr. Perschon extended preferential treatment to one female employee: Ms. Silver, a co-worker with whom Mr. Perschon allegedly was having an affair or some other form of “improper” relationship. Favoritism of a paramour is not gender discrimination.”

So, while running a workplace where supervisors and direct reports engage in consensual romantic relationships may not be the gold standard (e.g., perception of unfair treatment during the relationship, and the fallout when/if the two break up), “preferential treatment on the basis of a consensual romantic relationship between a supervisor and an employee is not gender-based discrimination.

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Neither is “friendship” or “cronyism.”

In other words, go ahead and treat the jerks like jerks because they are jerks and don’t worry about violating the law.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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