You would think that having to compete for a job with someone who’s having sex with the boss would present a sex discrimination case under Title VII, but courts (as this unpublished Tenth Circuit decision demonstrates) generally do not agree.
Anderson v. Oklahoma State University Bd. of Regents, No. 08-6249 (10th Cir. Aug. 17, 2009): Admittedly, the facts of this case present an unlikely vehicle for changing the law. The employee turned in his supervisor for engaging in an affair with (and preferentially treating) a female co-worker. An investigation turned out negative; meanwhile, the employee who complained was excluded from management meetings and eventually terminated during a reduction in force. Plaintiff sued alleging, inter alia, retaliation for making the complaint under Title VII.
The panel affirms summary judgment, holding that the employee failed to establish that he was engaged in a protected activity. The panel reaffirms standing circuit precedent that it is not a violation of Title VII for a boss to show “preferential treatment on the basis of a consensual romantic relationship between a supervisor and an employee. . . ., “quoting Taken v. Okla. Corp. Comm’n, 125 F.3d 1366, 1370 (10th Cir. 1997). The plaintiff urged either a modification or straight overruling of this standard, citing King v. Palmer, 778 F.2d 878 (D.C. Cir. 1985), but the panel held that it had no authority to overrule circuit authority and that, in any event, a majority of circuits agreed with its view of the law.
The correct theory I would suppose, though it does not appear to have been the case here, would be that an open-and-notorious paramour relationship might create a hostile work environment for an employee who doesn’t submit to the boss’s advances, and that complaining about this up the management chain is a protected activity. Considering how courts have shown scarely any interest in sorting out these workplace soap operas, any change in this small corner of Title VII law will be slow to come.
