Favoritism or Discrimination?

Mon. June 3, 2019 \ by Paul L. Sutherland III, Esq.\ Articles, News

Civil Rights Committee // “Favoritism or Discrimination?” by Paul L. Sutherland III, Esq. // The Briefs, June 2019 Vol. 87 No. 5. //

The #MeToo movement is entering its second year of worldwide recognition and support. Since the hashtag went viral in October 2017, many have developed a better understanding of the sexual discrimination that women and men face on a regular basis regardless of their success in life. With the influx of new information about sexual discrimination, some may be contemplating their own circumstances and asking themselves the movement’s statement turned question, “Me too?”

Prior to the viral #MeToo movement, “about four-in-ten working women (42%) in the United States sa[id] they ha[d] faced discrimination on the job because of their gender.”¹ With the movement showing no signs of slowing, we can expect these numbers to increase along with the number of filings for sexual-discrimination claims. Indeed, preliminary data collected by the Equal Employment Opportunity Commission (“EEOC”) show a “more than 50 percent increase in suits challenging sexual harassment over fiscal year 2017.”²

While the number of suits has increased, the EEOC found “reasonable cause” in only a fraction of the charges reported to it. For example, in 2016, the EEOC received 26,934 charges of sex-based discrimination and found reasonable cause for only 937 cases. The numbers are similar for 2017. Out of 25,605 charges filed, the EEOC found reasonable cause in only 960 cases.³ Therefore, it is important for attorneys to understand the legal elements of sexual-discrimination claims and how to properly pursue these claims.

Under Title VII of the Civil Rights Act of 1991 and the Florida Civil Rights Act of 1992, an employer may not “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s […] sex[.]”⁴ As the U.S. Supreme Court explained in TWA v. Hardison, “[t]he emphasis of both the language and the legislative history of the statute is on eliminating discrimination in employment; similarly situated employees are not to be treated differently solely because they differ with respect to […] sex.”⁵

“By using the word ‘sex’, Congress sought to ‘strike at the entire spectrum of disparate treatment of men and women.’”⁶ As such, ‘sex’ refers to “membership in a class delineated by gender” with “distinction[s] based on a person’s sex, not his or her sexual affiliations.”⁷ Unlike sex, one’s sexual affiliation is currently unprotected. Therefore, when analyzing a potential claim, an attorney must determine whether the alleged discrimination was on the basis of sex or sexual affiliation.

Another complication comes from claims involving nepotism, which in itself does not violate the Civil Rights Act. Nepotism is defined as “[a]ppointing unqualified relatives and friends to positions in one’s organization when an outsider[] might be better qualified.”⁸ The Eleventh Circuit has held that “‘nepotism’ is permitted under Title VII.”⁹ Thus, as long as employers do not act with discriminatory motives, they are largely free to make employment decisions for their businesses, for better or worse; and courts will typically give deference to those decisions. As such, an employer can hire his or her less-qualified, male cousin rather than a more-qualified, female applicant if the decision is based on the familial relationship and not a discriminatory animus against females.

Legally permissible nepotism extends beyond familial relationships, and may even allow employers to hire their paramours or sexual partners. Indeed, while chairman of the EEOC in 1990, Justice Clarence Thomas authored a policy letter, stating:

Title VII does not prohibit isolated instances of preferential treatment based on consensual romantic relationships. An isolated instance of favoritism toward a ‘paramour’ (or a spouse, or a friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders.¹⁰

In Womack v. Runyon, the Eleventh Circuit cited the EEOC’s policy letter and affirmed the distinction between nepotism and sexual discrimination by holding that it was not gender discrimination when an employer’s selection officer promoted his underqualified sexual partner and not that partner’s qualified male supervisor, despite the employer’s selection review board determining that the male supervisor was the best candidate for the position and recommending him for same.¹¹ The court reasoned that the promotion was based on the relationship between the two and had no discriminatory animus toward the gender of male or female alike.¹² In Ayers v. American Telephone & Telegraph Company, a district court in the Southern District of Florida came to a similar conclusion when it held that an employer who promoted his less qualified girlfriend over a higher qualified female co-worker was not sex discrimination.¹³

Could the #MeToo movement, which has exposed examples of powerful people in the workplace abusing their positions to gain sexual favors from employees, change the way courts think about sexual favoritism and nepotism in the workplace? Recently in 2018, in the case Chambers v. Mattis, a court in the Middle District of Florida unequivocally stated:

Sexual Favoritism is a form of sexual harassment and discrimination that is illegal. It occurs when a manager or supervisor is in a sexual relationship or a perceived sexual relationship with another employee and the manager/ supervisor shows favoritism toward that employee such as by promoting them ahead of other, more qualified candidates.¹⁴

While this case may be an outlier, it could their view of what constitutes workplace harassment and discrimination.

In summary, the line between legal nepotism and sexual discrimination is fact-specific and has traditionally skewed toward a finding of no discriminatory intent on behalf of employers. But the #MeToo movement, which has taught us about the role an employer’s position of influence plays in workplace harassment, could be changing the landscape for sexual-discrimination claims. Ultimately, attorneys advising their clients on these types of claims should be aware of defenses based on nepotism and sexual favoritism.

Paul L. Sutherland III, Esq., is an associate attorney with Wilson McCoy, P.A., in Maitland, Florida, where he assists employees and employers with their work matters in the areas of employment discrimination, wage and hour, business advising, and contract law. He has been a member of the OCBA since 2018.

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1. Kim Parker & Cary Funk, 42% of US working women have faced gender discrimination on the job Pew Research Center (2017), http://www.pewresearch.org/facttank/ 2017/12/14/gender-discrimination-comes-in many-forms-for-todays-working-women/ (last visited March 29, 2019).
   2. Equal Employment Opportunity Commission, EEOC

Releases Preliminary FY 2018 Sexual Harassment Data, available at https://www.eeoc.gov/eeoc/newsroom/release/ 10-4-18.cfm (last visited March 29, 2019).

3. Equal Employment Opportunity Commission, Sex-Based Charges (Charges filed with EEOC) FY 1997 – FY 2017, available at https://www.eeoc.gov/eeoc/statistics/enforcement/sex.cfm (last visited March 29, 2019).
4. 42 U.S.C. § 2000e-2(a)(1); see also Fla. Stat. § 760.10(2).
5. TWA v. Hardison, 432 U.S. 63, 71-72 (1997).
6. Sherk v. Adesa Atlanta, LLC, 432 F. Supp. 2d 1358, 1370 (N.D.G.A. 2006) (quoting DeCintio v. Westchester Cty. Med. Ctr., 807 F.2d 304, 306-07 (2d Cir. 1986)).
7. DeCintio, 807 F.2d at 306.
8. What is Nepotism?, The Law Dictionary, https://thelawdictionary.org/nepotism/ (last viewed February 9, 2019).
9. Horne v. Turner Constr. Co., 136 F. App’x. 289 (11^th Cir. 2005); Platner v. Cash & Thomas Contractors, Inc., 908 F.2d 902 (11th Cir. 1990) (holding adverse employment action was not actionable where motives were based on nepotism).
10. See EEOC Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism, EEOC Notice No. 915-048 (January 12, 1990).
11. Womack v. Runyon, 147 F.3d 1298 (11th Cir. 1998).
12. Id. at 1300-01.
13. Ayers v. Am. Tel. & Tel. Co., 826 F. Supp. 443, 445 (S.D. Fla. 1993).
14. Chambers v. Mattis, 2018 WL 1203105, at *5 n.2 (M.D. Fla. Mar. 8, 2018).