The Dubious Title VII Cause of Action forSexual Favoritism

I. IntroductionTitle VII of the 1964 Civil Rights Act forbids employment discrimination against any individual "because of such individual's...sex."(1) This prohibition of sex discrimination was hurriedly added to Title VII not long before its passage; as a result, little legislative history exists to aid courts in its interpretation.(2) Perhaps for this reason, the prohibition has been a judicial battleground, in which some expansive readings of its language eventually have found favor,(3) whereas others have failed to command support.(4) Today, Title VII recovery for sexual favoritism is one such battleground.(5)In the typical sexual favoritism (or "paramour") claim,(6) a the plaintiff alleges that her employer has violated Title VII by favoring another employee (the paramour) due to a sexual or romantic relationship between a supervisor and the paramour. Perhaps the most common case involves a male supervisor who assertedly favors a female subordinate over another female subordinate.(7) Sometimes, however, the injured party is male.(8) In most, if not all, of the relevant cases, the sexual or romantic relationship between supervisor and paramour appears to have been consensual. Few, if any, assert that the relationship was coerced by the supervisor's sexual harassment of the subordinate.(9) At the other end of the spectrum, few cases appear to involve paramours willing to trade sex for personal advancement.(10)A majority of the courts that have considered Title VII sexual favoritism claims have recognized the possibility of recovery for sexual favoritism under one theory or another.(11) The relatively sparse scholarly work on sexual favoritism also tends to favor such claims.(12) This Article, however, departs from the scholarly consensus on sexual favoritism. After the next Part describes Title VII sexual harassment law and Title VII sexual favoritism litigation, the Article concludes that Title VII's prohibition of sex discrimination in employment does not include sexual favoritism as such.(13) Then, the Article examines three ways in which victims of sexual favoritism might seek relief through Title VII sexual harassment law and concludes that that body of law occasionally may be useful to them.(14)II. Preliminary MattersSexual harassment law and sexual favoritism law interact in ways that are described at various points in this Article. In addition, certain common themes pervade both bodies of law. For these reasons, the Article opens by briefly describing the law of sexual harassment under Title VII. Then, it surveys the extant case law on Title VII sexual favoritism claims.A. Sexual Harassment Under Title VIICoincident with increased popular attention to the subject,(15) Title VII sexual harassment claims began to appear during the ]ate 1970s.(16) At first, some courts rejected these claims. Among their reasons was the belief that sexual harassment, while no doubt morally objectionable, is not sex discrimination. According to one district court, for example:The substance of plaintiffs complaint is that she was discriminated against, not because she was a woman, but because she refused to engage in a sexual affair with her supervisor....Regardless of how inexcusable the conduct of plaintiffs supervisor might have been, it does not evidence an arbitrary barrier to continued employment based on plaintiff's sex.(17)One might argue that if a woman suffers a job-related disadvantage because she refused to have sexual relations with a male supervisor, that disadvantage surely had something to do with her gender. The reply is that while this may be true in a particular case, both sexual harassment's perpetrators and its victims can be of either gender. As the district court asserted in Tomkins v. Public Service Electric & Gas Co.:(18)In this instance the supervisor was male and the employee was female. But no immutable principle of psychology compels this alignment of parties. …