The Ninth Circuit ruled that a supervisor exercising preferential treatment in favor of their sexual or romantic partner is not unlawful sex discrimination within the meaning of Title VII. Maner v. Dignity Health, decided on August 20, 2021, aligns the Ninth Circuit with the reasoning of the Second, Fourth, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits on this issue. The Ninth Circuit explains:
In this appeal, we must decide whether the district court erred in adopting the consensus view among the other circuits and the EEOC that Title VII’s prohibition on discrimination against any individual because of such individual’s sex does not prohibit an employer’s favoritism toward a supervisor’s sexual or romantic partner. Maner argues that the text of Title VII gives rise to “paramour preference” claims because the statutory term “sex” encompasses sexual activity between persons as well as sex characteristics. Maner also argues that the “paramour preference” theory finds support in the Supreme Court’s recent interpretation of Title VII in Bostock v. Clayton County, 140 S. Ct. 1731 (2020). Finally, Maner argues that Title VII’s implementing regulations endorse the “paramour preference” theory as a form of sexual harassment that impacts third parties. For the following reasons, we reject these arguments and join the consensus view that an employer does not violate Title VII’s prohibition on discrimination because of an individual’s sex by favoring a supervisor’s sexual or romantic partner over another employee; that is, Title VII is not violated by exercising a “paramour preference” for one employee over another because of a workplace romance.
This opinion further solidifies this area of law following Bostock’s reasoning. In these cases, the circuit consensus is that the employer is discriminating against other employees “because they are not the favored paramour, no matter the sex of the paramour or of the complaining employees.”