Playing Favorites in Selections and Promotions: Not EEO, But Still a Bad Idea
I love it when I teach a webinar and after it’s over, participants email questions as follow-up. Here’s one that I got after last week’s webinar on The Latest Developments in LGBTQ+ Discrimination: What Agencies and Employees Need to Know:
Dear Attorney Hopkins:
Can you speak on the discrimination implications for a selecting official who chooses someone for a job based on a personal dating relationship – can applicants who did not get selected validly claim that this is sex discrimination (e.g. you have to be heterosexual, or you have to be a female)?
And here’s the FELTG answer:
Thanks for the question. I hope this helps:
The EEOC’s stance is generally that isolated incidents of sexual favoritism (for example, a selecting official choosing someone for a position because of a dating or sexual relationship) have an adverse impact on both males and females, so they are not considered sex/gender discrimination under Title VII. In addition to EEOC, the courts have widely rejected claims that isolated incidents of sexual favoritism based on consensual romantic relationships create a hostile environment for others in the workplace. See Miller v. Aluminum Co. of America, 679 F. Supp. 495, aff’d mem., 856 F.2d 184 (3rd Cir. 1988). If the relationship and romantic behavior is voluntary, the “hostile behavior that does not bespeak an unlawful motive cannot support a hostile work environment claim.” Id. at 502.
In cases where coercion is used, though, we enter in to sexual harassment territory either as a tangible employment action (formerly quid pro quo) or a hostile work environment analysis. See EEOC’s Guidelines on Sexual Harassment, Section 1604.11(l), which state that when submission to unwelcome sexual conduct is made “either explicitly or implicitly” a term or condition of an individual’s employment, a violation will be found.
Back to your question. Take a look at Paul v. GSA, EEOC No. 01992256 (EEOC OFO 2001), where the EEOC rejected a male complainant’s claim that he was subjected to sexual harassment when a female employee was awarded a position because she had a romantic relationship with a senior agency official, who was a male. This was one isolated incident of preferential treatment without coercion, and while EEOC acknowledged it was unfair, the incident did not create a hostile work environment for either male or female employees.
Another case on point is Roy v. USPS, EEOC No. 01A50021 (EEOC OFO 2004), where a complainant alleged sex discrimination after she was denied a promotion, and she claimed that the selectee’s sexual relationship with the selecting official was the reason for her promotion. In this case, EEOC also said it might be unfair but it’s not EEO, because there was no evidence indicating sexual coercion or a pattern of sexual favors in the workplace.
One word of caution, though: an agency with a common practice of granting favorable treatment based on dating relationships might create a hostile work environment. (See EEOC’s Policy Guidance on Employer Liability under Title VII for Sexual Favoritism, https://www.eeoc.gov/policy/docs/sexualfavor.html). If sexual favoritism is widespread in a workplace, the fact that one case was voluntary and consensual would not defeat a claim that it created a hostile work environment for other people in the workplace. Miller v. Aluminum Co. of America, 679 F. Supp. At 502. This analysis is determined on a case-by-case basis.
So maybe, if it happens once, there’s no EEO problem. But aside from EEO, we have another issue. If “choosing” the romantic partner is for a promotion or a selection, then doing so based on a personal relationship (whether it’s sex-based or not) is a non-merit factor, and this constitutes a prohibited personnel practice under 5 USC 2302(b)(6). (http://www.mspb.gov/ppp/ppp.htm). So, while there may not be EEO trouble there might be OSC trouble – and believe me, unless you’re a sadist you do NOT want trouble with OSC. But, anyone who observes this type of non-merit personal relationship favoritism can report it to the US Office of Special Counsel at www.osc.gov. The OSC then would be responsible to decide whether to investigate this type of claim and taking appropriate action.
If you’re interested in this topic and you weren’t able to attend, check out a related webinar FELTG is hosting on July 20 called New Developments under Title VII: Sexual Orientation and Gender Stereotyping. Register here: https://feltg-stage-ada.stage3.estlandhosting.com/event/webinar-series-eeo-counselor-and-investigator-refresher-training/?instance_id=164. Hopkins@FELTG.com