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Romancing the Supervisor
Cynthia Delaney and Jennifer Mardosz, Sherman & Howard L.L.C.,

Introduction

Most of us know that it is discriminatory for an employer to promote a male instead of a female based solely on the fact that it prefers him because of his gender. Currently, however, courts are being called upon to determine the more difficult issue of whether it is unlawful for an employee to be treated less favorably than another who is romantically involved with a supervisor. Recently, the Tenth Circuit Court of Appeals (the federal court that hears appeals from the U.S. District Court) addressed this issue for the first time in a case brought by two Oklahoma women, Dorothy Taken and Twana White. Taken v. Oklahoma Corporation Commission, F.3d, 1997 WL 602511 (10th Cir. October 1, 1997).

The Facts

Ms. Taken and Ms. White, both white females, worked for the Oklahoma Corporation Commission ("Commission"). An administrative assistant position opened up with the Commission and the Plaintiffs, along with a black female named Tansy Preston, applied for the position. A selection committee comprised of two white males and one black male interviewed the three candidates and chose Ms. Preston for the position. Bill Burnett, a black male, was one of the members of the selection committee. The Plaintiffs alleged that Mr. Burnett and Ms. Preston were involved in a romantic relationship and that she was chosen by the committee because of that relationship.

The Plaintiffs brought both race and sex discrimination claims against the Commission pursuant to Title VII, the federal statute prohibiting discrimination in employment. In the trial court, the Plaintiffs characterized their sex discrimination claim under Title VII as one for "third party sexual harassment" arising from the alleged romantic relationship between Mr. Burnett and Ms. Preston. The Plaintiffs claimed that Mr. Burnett and Ms. Preston were involved in a romantic relationship and that she was chosen by the committe because of that relationship. The Tenth Circuit affirmed the Oklahoma district court###s ruling in favor of the Commission on the sex discrimination claim based on the following analysis.

The Court###s Decision

Title VII states that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual###s race, color, religion, sex or national origin." In Taken, The Tenth Circuit joined a number of other federal circuits in holding that Title VII###s reference to "sex" means "a class delineated by gender, rather than sexual affiliations." The court reasoned that the goal of Title VII is to eliminate discrimination based on differences in sex or gender. Even assuming the truth of the Plaintiffs### allegations, the allegations did not state a claim for sex discrimination under Title VII because they were based on a voluntary romantic affiliation, and not on any sex or gender differences between the Plaintiffs and other employees.

Employers may be liable for sex discrimination under two circumstances: (1) if employment benefits are conditioned on sexual advances by a supervisor; and (2) if an employer creates a hostile working environment by subjecting employees to actions or conduct of a sexual nature. The Tenth Circuit distinguished the facts in the Taken case with these two forms of recognized sex discrimination. Here, the Plaintiffs did not claim any employment benefits were predicated on submission to sexual advances by Mr. Burnett or that they suffered from a hostile working environment. Instead, they claimed the employer was liable solely because Mr. Burnett "pre-selected his paramour for a promotion even though she was less qualified then either Plaintiff." Even if that were true, the court noted, the Plaintiffs were not discriminated against on the basis of their sex because they were treated the same as all other male and female employees.

The Tenth Circuit is among the majority of courts who reject claims predicated on preferential treatment of others based on a romantic relationship. A handful of other courts, on the other hand, have accepted the view that a sexual discrimination claim may be based on a supervisor###s voluntary sexual relationship with a subordinate where the subordinate allegedly received preferential treatment over the claimant. Interestingly, such a theory is supported by guidelines of the Equal Employment Opportunity Commission interpreting Title VII which state: "[w]here employment opportunities or benefits are granted because of an individual###s submission to the employer###s sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit."

Implications

While the Tenth Circuit has insulated employers from liability under the facts addressed in Taken, employers must consider other issues that may arise in such circumstances. There will likely come a day when either Ms. Preston or Mr. Burnett become disenchanted with their relationship. When that relationship sours, the employer may find itself defending against a sexual harassment lawsuit from Ms. Preston. Additionally, such a relationship between a supervisor or a subordinate may be demoralizing to other employees. As a result of these implications, some Colorado employers choose to prohibit such supervisor-subordinate relationships in the workplace. Colorado law prohibits employers from terminating an employee for engaging in any off-duty legal conduct, see Colo. Rev. Stat. § 24-34-402.5, unless such action "[i]s necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest." Thus, although it may not be advisable to terminate employees who engage in supervisor-subordinate relationships, employers may be wise to have a written policy prohibiting such relationships and advising employees of steps that may be taken if such relationships occur. If an employer becomes aware of such a relationship, it may consider counseling the employees of the hazards of such a relationship, transferring one of the employees, or demoting one of the employees.

The Taken case highlights the growing issues for Colorado employers in the area of employment discrimination claims. Although preferential treatment of employees for romantic reasons does not violate Title VII because it is not motivated by impermissible gender-based distinctions, employers must constantly be aware of the hazards of co-worker relationships.

Due to space limitations, this article does not address the Tenth Circuit###s ruling on the race discrimination claim, which was resolved in favor of the defendant Corporation Commission. This article should not be construed as or relied upon as legal advice. Readers are urged to consult legal counsel concerning particular situations and specific legal questions.

Cynthia P. Delaney, a Member of Sherman & Howard L.L.C., received her J.D. from Cornell Law School, cum laude, in 1987. She has been a member of the Colorado Bar since 1987 and is also admitted to practice before numerous other federal district courts throughout the country. Since joining Sherman & Howard, Ms. Delaney has been involved in complex commercial litigation in state and federal courts concentrating in the areas of ERISA fiduciary and benefits matters and environmental litigation. Ms. Delaney¹s current practice concentrates on advising employers on all types of personnel issues and defending employers in litigation involving employment discrimination and wrongful discharge.

Jennifer M. Mardosz, an Associate at Sherman & Howard L.L.C., received her B.S. from the University of Colorado in 1991 and her J.D. in 1995. Ms. Mardosz specializes in advising and defending employers in a wide range of employment-related litigation and administrative proceedings, including issues related to employment discrimination, breach of contract, and wage and hour laws. Ms. Mardosz is co-author of Rulings on ERISA: A High Court Decision Has Serious Consequences for Administrators of Worker Benefit Plans, which appeared in the June 28, 1996 edition of the Colorado Journal, and Recent Developments in ERISA Fiduciary Duties, which appeared in Prentice Hall###s 1997/98 The Human Resources Yearbook. Ms. Mardosz is a member of the Colorado Womens### Bar Association and is the director of its Legal Aid Committee###s Channel 4 "Ask-a-Lawyer Night."