Sexual discrimination in the workplace usually conjures images of sexual harassment or gender exclusion for promotions or executive positions. In one interesting case from California in 2005, female employees sued the Department of Corrections because they were passed up for promotions given to employees who were involved in consensual sexual relationships with the Deputy Warden.
The case was brought by two female corrections officers who alleged that the Deputy Warden Lewis Kuykendall had his three paramours transferred from a different correctional facility and gave them special promotions over those whom he was not involved with sexually.
They further allege that upon complaining about these relationships and being passed up for promotions that they believed that they deserved, they were retaliated against.
At least one of Kuykendall’s paramours was given a promotion over the express objection of a hiring committee. Another was given a promotion over more qualified candidates. A third said she leveraged the Deputy Warden by threatening to file a suit herself. Employees of the Valley State Prison for Women were left to wonder if they were being forced to trade sexual favors for workplace benefits.
Is Sexual Favoritism a Form of Gender Discrimination?
While cases such as these have been around since the 1980s, they have proven difficult for plaintiffs to litigate. It is not clear, for instance, if the plaintiffs themselves are being discriminated against based on their gender. It is clear that the hiring and promoting practices being employed here are unethical, but does it rise to the level of a Title VII claim under the Civil Rights Act?
The employees who brought the lawsuit were certainly at a disadvantage, but they were not put at a disadvantage because of their sex, race, religion, disability, or nation of origin. This would seem to indicate that a Title VII claim would not be appropriate to this circumstance.
Implicit Quid Pro Quo
While many sexual favoritism lawsuits have been denied on Title VII grounds, the EEOC has outlined instances in which sexual favoritism could constitute quid pro quo harassment. It is certainly already illegal for an employer or individual in a position of authority to demand sexual favors from an employee in exchange for workplace benefits. The question becomes: What about a workplace in which sexual favoritism is so widespread that there is an implied quid pro quo? Would this not discriminate against women who refused to be a party to the tit-for-tat liaisons that undergirded employment promotions? Would this not also discriminate against men who were not the object of a management authority’s desires?
While the reasoning that resulted in victories for such cases were based on California-specific legislation, there is a great deal of gray area when it comes to those in a position of power-granting promotions to employees with whom they have had sexual relationships.
Thus, the answer to this question of whether sexual favoritism constitutes discrimination would largely rest on the circumstances of the individual case.
Have You Been the Victim of Sexual Harassment in the Workplace?
If so, call HKM Employment Attorneys of Kansas City at 816.607.4691, and we will begin discussing your case right away.