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Does Sex-Based Favoritism in the Workplace Create a Hostile Work Environment Claim?

There are at least four ways in which sex-based favoritism in the workplace - where the boss favors an employee with whom he is having a sexual relationship - creates legal liability for the employer. First is through a discrimination claim by the other workers who were passed over for a promotion or other benefits that the paramour received. Second is through a "quid pro quo" hostile work environment claim if the other workers refused to accede to the supervisor's demand for a relationship. Third is through a retaliation claim if the other workers protested the supervisor's favoritism and were then retaliated against by management. The fourth is a long-recognized but little used claim for hostile work environment based on sexual favoritism in the workplace.

An attorney at the Securities and Exchange Commission had a hostile work environment claim based on the fact that her male supervisors favored other women in the workplace with whom they were having affairs, and that favoritism created a hostile work environment. Judge Pratt held that "plaintiff, without any doubt, was forced to work in an environment in which the WRO [Washington Regional Office] managers by their conduct harassed her and other WRO female employees, by bestowing preferential treatment upon those who submitted to their sexual advances. . . . The record is clear that plaintiff and other women working at the WRO found the sexual conduct and its accompanying manifestations which WRO managers engaged in over a protracted period of time to be offensive." Broderick v. Ruder, 685 F. Supp. 1269, 1278 (D.D.C. 1988). Judge Pratt concluded that "We hold, and plaintiff has proved, that consensual sexual relations, in exchange for tangible employment benefits . . . do, and in this case did, create and contribute to a sexually hostile working environment." Id. at 1280.

Similarly, Judge Lamberth, in two pre-trial orders in two sexual harassment cases filed against the owner of a hairdressing salon, held that plaintiffs could present evidence of sexual favoritism in the workplace: "Second, because plaintiff claims that a hostile work environment existed at defendants' salon, any evidence that Andre Chreky engaged in or pursued sexual relations with other employees of the Andre Chreky Salon is relevant and admissible. . . . Such sexual favoritism is evidence of a hostile work environment." Barrett v. Chreky , No. 07-cv-00250 (RCL), Order, at 16 (ECF No. 103) (D.D.C. Feb. 2, 2010); see also Thong v. Chreky, No. 06-cv-1807 (RCL), Order, at 13 (ECF No. 139) (D.D.C. Mar. 19, 2010).

Other courts have similarly held that such favoritism can create a hostile work environment, regardless of whether the plaintiff suffered sexual advances. The Supreme Court of California held that the supervisor's "conduct constituted sexual favoritism widespread enough to constitute a hostile work environment in which the message [was] implicitly conveyed that the managers view women as 'sexual playthings' or that the way for women to get ahead in the workplace is by engaging in sexual conduct thereby creating an atmosphere that is demeaning to women." Miller v. Dept. of Corrections, 36 Cal. 4th 446, 468, 115 P.3d 77, 92, 30 Cal. Rptr. 3d 797, 815 (2005).

Employees should recognize, however, that a single instance of sexual favoritism is unlikely to prove a sexually hostile work environment claim, as the courts usually require severe and pervasive conduct for that claim. Therefore, the key is always whether there are other indicia of a sexually hostile work environment to plead and prove a claim that the sexualization of the workplace was severe or pervasive.

Alan R. Kabat

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