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Preference for Romantic Partner Not Sex Discrimination, According to Ninth Circuit

William Maner worked for Dr. Robert Garfield as a biomedical design engineer in his research laboratory. In 2008, Dignity Health operated a lab with Dr. Garfield, and the company hired Maner as an employee. When the lab relocated to Arizona, Maner was unable to relocate because of criminal charges pending against him in Texas, where he lived. After Maner’s conviction and placement on probation, Garfield approved a remote work arrangement. Garfield gave a “highly negative review” of Maner’s work performance after his first year of work as a remote employee. Dignity Health eliminated Maner’s position due to his performance and the lab’s lack of funding.

During most of Maner’s employment, Garfield had an intimate relationship with a female researcher, Dr. Leili Shi. Another researcher complained about this relationship to Dignity Health. When the investigator asked Maner about Garfield and Shi, Maner did not mention any concerns about their relationship. Shi continued to work with Garfield and for Dignity Health.

Maner sued Dignity Health, claiming the company protected Shi from layoff because of her relationship with Garfield. The federal district court dismissed Maner’s claims on summary judgment. The Ninth Circuit Court of Appeals affirmed the dismissal. In its opinion, the court noted the consensus among the Equal Employment Opportunity Commission and the other circuits that Title VII does not “prohibit an employer’s favoritism toward a supervisor’s sexual or romantic partner.” Maner argued that the term “sex” in Title VII prohibits discrimination based on sexual activity as well as sex characteristics, the “paramour preference” argument. The court rejected this argument stating, “An employee who singles out a supervisor’s paramour for preferential treatment does not discriminate against other employees ‘because of [their]…sex.” Isolated incidents of favoritism are not evidence of discrimination. Maner pointed to the test laid out by the Supreme Court in Bostock v. Clayton County. “If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” Changing Maner’s gender would not have yielded a different outcome because he was not Garfield’s romantic partner. The Ninth Circuit rejected the argument that Title VII’s prohibition on discrimination based on sex includes discrimination based on sexual activity or romantic relations between persons.