EEOC Guidance On Use of Criminal History in Employment Decisions
[Readers: As you may have seen, the EEOC recently issued its policy guidance on the use of criminal history in employment decisions, particularly (though not exclusively) when used in the hiring process. Set forth below is an article by my colleagues Doug Christensen and Courtney DaCosta addressing this recent development. If you have questions about their analysis, don't hesitate to contact either of them (Doug: christensen.doug@dorsey.com, or 612.340.8875; Courtney: dacosta.courtney@dorsey.com, or 612.492.6017).
I hope you find the analysis below helpful. Regards, Roy]
When Is a Proscription on Convictions an Impermissible Predilection? EEOC Issues New Guidance on the Use of Criminal History in Employment
By: Douglas R. Christensen and Courtney J. DaCosta
Earlier this week, the United States Equal Employment Opportunity Commission (“EEOC”) issued updated Enforcement Guidance (“Guidance”) regarding the circumstances under which employers permissibly may, under Title VII of the Civil Rights Act of 1964 (“Title VII”), rely on arrest and conviction records in employment decisionmaking. See EEOC, Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (April 25, 2012), http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. The Guidance, while clarifying the agency’s position on this issue, also portends additional burdens for employers who need or want to consider applicants’ and employees’ criminal records.
The EEOC issued its Guidance in the midst of its ongoing Eradicating Racism and Colorism from Employment (“E-RACE”) initiative and on the heels of prominent enforcement actions involving allegations of race discrimination relating to the use of criminal history information. The most recent of those actions was venued in Minnesota and resulted in a $3.13 million settlement between the EEOC and Pepsi Beverages. See EEOC, Pepsi to Pay $3.13 Million and Made Major Policy Changes to Resolve EEOC Finding of Nationwide Hiring Discrimination Against African Americans (Jan. 11, 2012), http://www.eeoc.gov/eeoc/newsroom/release/1-11-12a.cfm. The Guidance is the EEOC’s first on this issue in more than 20 years.
Use of Criminal History Information in Employment Carries Pros and Cons
According to one recent survey, more than nine out of ten employers require at least certain applicants to submit to a criminal background check. See Soc’y of Human Res. Mgmt., Background Checking: Conducting Criminal Background Checks (Jan. 22, 2010), http://www.shrm.org/research/surveyfindings/articles/pages/backgroundcheckcriminalchecks.aspx.
This practice may be advisable for a number of reasons, including promotion of workplace safety; prevention of meritorious negligent hiring claims; and compliance with requirements imposed by federal, state, or local law. However, the use of criminal history information in employment can be frought with legal risks, chief among them potential liability for discrimination under Title VII, the federal statute that prohibits workplace discrimination on the basis of race (as well as color, national origin, sex, and religion).
Disparate Impact Concerns Dominate EEOC’s Guidance
The EEOC’s Guidance focuses principally on circumstances under which an employer’s consideration of criminal history information will have a prohibited disparate impact on applicants and employees on the basis of race. African American and Hispanic men, the EEOC observes, are arrested and convicted at rates disproportionate to their prevalence in the U.S. population. For this reason, an employer’s facially neutral practice of disqualifying for employment all or certain applicants who have a criminal record, or a certain type of criminal record, may have the effect of discriminating against African American and Hispanic individuals.
EEOC Frowns on Reliance on Arrest Information
As a preliminary matter, the EEOC’s Guidance strongly cautions against the use of arrest records in employment decisions under almost all circumstances. According to the EEOC, the fact that an applicant has been arrested in the past is insufficient evidence to support a conclusion that he in fact engaged in the conduct for which he was arrested. However, according to the EEOC, an employer may make an employment decision based on the conduct that led to the arrest “if the conduct makes the individual unfit for the position in question.” For example, a pharmaceutical company theoretically could deny employment in a sales representative position to an applicant whose criminal background check revealed that she had been arrested for dealing in prescription drugs.
Unfortunately, the EEOC’s Guidance does not indicate what steps, if any, the employer must take to determine whether the individual in question actually engaged in the conduct underlying his or her arrest. Particularly in the case of new job applicants, employers generally will have very limited ability to assess the validity of the arrest and the applicant’s culpability for the alleged conduct. For this reason, and given the EEOC’s obvious skepticism of the use of arrest records in hiring and employment, most employers would be wise to forgo this practice altogether.
Reliance on Conviction Records Can Be Permissible if Circumscribed
Employers have much greater leeway under the EEOC’s Guidance to consider conviction records in hiring and employment decisions. According to the EEOC, “a record of a conviction will usually serve as sufficient evidence that a person engaged in particular conduct, given the procedural safeguards associated with trials and guilty pleas.” The EEOC’s Guidance recommends that employers not, however, ask about criminal conviction history on job applications; instead, that inquiry should be reserved for a later stage of the hiring process. (It is worth noting that some states—but not Minnesota, in the case of private employers—separately prohibit inquiries regarding criminal history early on in the selection process).
If an employer’s selection criterion relating to conviction history has a statistically significant disparate impact on individuals of a certain race, the criterion will be deemed to violate Title VII unless it is “job related and consistent with business necessity.” In its recent Guidance, the EEOC opines that an employer may be able to justify a criminal-history-based selection criterion that has a disparate impact in one of two ways:
• First, the employer may validate the criterion in accordance with the Uniform Guidelines on Employee Selection Procedures, guidelines jointly promulgated in 1978 by the EEOC, the Civil Service Commission, the Department of Labor, and the Department of Justice. See 29 C.F.R. § 1607.1, et seq.
• Second, the employer may develop a “targeted screen” based on three factors articulated in a 1975 Eighth Circuit decision, Green v. Missouri Pacific Railroad, 523 F.2d 1290 (8th Cir. 1975): (1) the nature of the crime, (2) the time elapsed since the crime, and (3) the nature of the position sought. In most cases, according to the EEOC, the employer also should engage in an “individualized assessment” with respect to any individual disqualified by the targeted screen.
Unfortunately, both options have the potential to entail substantial burden and expense for employers. The process of having a selection criterion validated pursuant to the Uniform Guidelines on Employee Selection Procedures can be cumbersome and time-consuming, and it can have the inertial effect of locking employers into validated procedures that may not accommodate changing business needs.
Use of the Green factors in employment decisionmaking is unlikely to be problematic in and of itself and, in fact, many employers already do consider factors such as these, whether purposefully or simply as a matter of common sense. Potentially more troublesome is the EEOC’s suggestion that employers undertake an “individualized assessment” for any candidate whom the Green factors exclude. According to the EEOC, such an assessment could include, but need not necessarily include all of, the following evidence:
• The facts or circumstances surrounding the offense or conduct;
• The number of offenses for which the individual was convicted;
• Older age at the time of conviction, or release from prison;
• Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;
• The length and consistency of employment history before and after the offense or conduct;
• Rehabilitation efforts such as education and training;
• Employment or character references and any other information regarding fitness for the particular position; and
• Whether the individual is bonded under a federal, state, or local bonding program.
Obviously, compilation and review of all of these data points is likely to be time-consuming, if not impossible, in the run of cases. The EEOC does note in its Guidance that “an employer may be able to justify a targeted criminal records screen solely under the Green factors” and that “Title VII thus does not necessarily require individualized assessment in all circumstances.” Given this Guidance, employers who elect not to engage in individualized assessments of candidates who are excluded by a selection criterion relating to conviction history, or who engage in only limited individualized assessments, should ensure that the selection criterion is narrowly tailored to the specific requirements of the position at issue.
Compliance with State or Local Law Is Not an Absolute Defense
As we noted above, federal, state, or local law may require the use of criminal history screening or make a clean criminal record a minimum requirement for certain positions, typically those that implicate safety or public health interests. Minnesota law, for one, includes many provisions of this nature. See Minn. House Research Dep’t, Criminal Background Check Statues: An Overview (Jan. 2010), http://www.house.leg.state.mn.us/hrd/pubs/bkgdchck.pdf.
The EEOC’s Guidance clarifies that, while adherence to a federal requirement of this nature will not violate Title VII, adherence to a similar state or local law may lead to Title VII liability due to the supremacy of federal law over state or local law. Employers who find themselves stuck between the rock of a state or local law prohibiting employment of individuals with certain criminal records and the hard place of potential disparate-impact liability should be sure to document thoroughly the reasons for their hiring and employment decisions based on criminal history and, if necessary, raise the conflict with appropriate state or local authorities.
EEOC and Dorsey Offer Suggested Best Practices
The EEOC’s Guidance sets forth a list of best practices for employers regarding the use of criminal arrest and conviction information:
• Eliminate policies or practices that exclude people from employment based on any criminal record;
• Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination;
• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct;
• Identify essential job requirements and the actual circumstances under which the jobs are performed;
• Determine the specific offenses that may demonstrate unfitness for performing such jobs;
• Determine the duration of exclusions for criminal conduct based on all available evidence;
• Record the justification for the policy and procedures;
• Note and keep a record of consultations and research considered in crafting the policy and procedures;
• Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII;
• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity; and
• Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
We offer the following additional best practices to supplement the EEOC’s list:
• Consider, on a position-by-position basis, whether the benefits of criminal history screening are likely to outweigh the legal risks;
• Work with any third-party providers of criminal background reports to ensure that criminal history information not relevant to the position at issue is not communicated to decisionmakers in the first instance;
• Conduct individualized assessments of excluded candidates to the fullest extent possible under the circumstances;
• Document thoroughly the reasons for not selecting certain candidates based on screening factors or individualized assessments;
• Track applicant flow and selection data to assess on an ongoing basis whether a criminal history screen is having a disparate impact; and
• Remember that, while the issue of criminal history screening may come up most often in the hiring context, the EEOC’s Guidance is equally applicable to current employees.
Finally, it is worth noting that the EEOC’s Guidance does not carry the force of law and, therefore, will not automatically control in civil litigation under Title VII or similar state or local laws that prohibit employment discrimination. That said, the EEOC’s opinion on these matters is likely to be highly influential in the courts, and it will be the final word with respect to charges of discrimination filed under Title VII. While only time will tell the degree of influence the EEOC’s Guidance will have in the courts and at the state level, the prudent employer will take it to heart at this time.
The EEOC’s Q&A document regarding the Guidance is available here:
ttp://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm
The EEOC’s press release relating to the Guidance is available here:
Quirky Question # 192: Legal Protections for a Transgendered Employee
[Readers: I have been away from this Blog for far too long. Too much travel, too much other work, and too many distractions. (And, too many excuses, I know). I am pleased to report, however, that I'm back in Minneapolis. Even better, I have been accumulating and developing some terrific content in my Blog-hiatus period. I will be posting that material this week, next week, and in the weeks that follow. So, thanks for your patience. It's good to be back in the Blogosphere.
The first of the accumulated articles is the material set forth below. The analysis was written by my colleague, Jen Cornell. Jen's email is: cornell.jen@dorsey.com; her direct line is: 612.492.6438. Additional information regarding Jen is available at: http://www.dorsey.com/Jen-Cornell/. Don't hesitate to contact Jen if you have any questions about the content below. Regards, Roy]
Quirky Question # 192:
A long-time employee has informed us of his decision to undergo a sex change. We are concerned about the reactions of co-workers and aren’t clear if we should be doing anything in response. As an employer, are we required to take any actions?
Jen’s Analysis of Quirky Question # 192:
The question of whether this worker is protected against discrimination under federal and many state laws is a relatively settled matter of law. To start, I want to clarify some terminology: Individuals undergoing a sex-change may refer to themselves in a number of ways including transsexual, transvestite, transgender, or intersex, among others. All of these labels are descriptive of individuals who live, at least in part, as a gender that may differ from that expected of them. The term “transitioning” refers the process by which an individual undergoes physical changes to their sex. I am going to use the term transgender to respond to this question but the answer would be the same regardless of how the employee identifies.
Title VII does not expressly protect transgendered employees; rather Title VII expressly prohibits discrimination on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e. Many courts, including the Eighth Circuit, initially interpreted the law as conferring no protections to transgendered individuals. See Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982). In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), however, the Supreme Court held that a female employee who was not stereotypically feminine was protected by the law since “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group . . . .” Id. at 251.
After Price Waterhouse, courts have almost uniformly held that Title VII protects transgendered individuals, since the basis of the discrimination could be characterized as a reaction to the individual’s failure to conform to the stereotypes of his/her sex. See, e.g., Smith v. City of Salem, 378 F.3d 566, 572 (6th Cir. 2004); Schwenk v. Hartford, 204 F.3d 1187, 1198-1203 (9th Cir. 2000); Rosa v. Park West Bank & Trust Co., 214 F.3d 213, 215-16 (1st Cir. 2000).
The most recent decision by the Eleventh Circuit, Glenn v. Brumby, No. 1:08-cv-02360 (11th Cir. Dec. 6, 2011), soundly affirmed this judicial trend of extending anti-discrimination protections to transgendered employees since the Glenn Court held that discrimination against a transgendered employee must meet heightened scrutiny in the public employment context – a more exacting standard then that required in Title VII cases. Important for employers, the Eleventh Circuit noted that employers’ fears of co-workers’ reactions to an employee transitioning would not justify discrimination – would not constitute an important governmental purpose – indicating that employers cannot use other employees’ potential prejudices and reactions as defenses to discrimination. Additionally, the panoply of state laws that expressly protect transgendered individuals, including Minnesota’s, see Minn. Stat. § 363A.03 subdiv. 44, indicate that employers would be best served to anticipate and proactively address the issue rather than wait for any problems to arise.
Moreover, even more recently, on April 20, 2012, the EEOC, in deciding a case involving the Bureau of Alcohol, Tobacco & Firearms, held in Macy v. Holder that a “complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII.” The EEOC’s ruling was grounded on Hopkins, a 2008 case from the D.C. Circuit, Schroer v. Billington, the Glenn decision discussed above, and other federal court decisions. (For a discussion of the Schroer decision, see Quirky Question # 68.) The EEOC’s decision, binding on federal agencies, may have broad implications for private employers as well, particularly when considered in light of the pre-existing trend among federal courts.
So practically speaking, what do Glenn and Macy mean for employers? Essentially, providing workplace training and policies that incorporate transgendered employees in a proactive manner may protect employers from discrimination lawsuits. Further, such training and policies will provide an employer the same types of defenses if litigation arises that anti-harassment policies and training currently provide in other contexts. Not to mention, it’s the right thing to do.
There is no need to reinvent the wheel; after all, most employers have solid sexual harassment policies and procedures already in place. Since the same laws are at issue, employers need only incorporate the issue of transgender employees into existing trainings and policies.
In particular, employers should:
• Update anti-discrimination and harassment policies to include terms such as transgender as a protected status;
• Disseminate updated policies, either by auditing an employee handbook if applicable, posting, or otherwise distributing the updated policies;
• Train human resources personnel on the issue so that they are attuned to any potential issues;
• Incorporate discussion of transgender anti-discrimination and anti-harassment expectations into ongoing training – there is no need to offer separate training on this issue, simply add the issue to existing programs;
• Monitor the workplace.
Courts currently require no more regarding transgendered employees than the protections required under Title VII; so as long as employers have sound up-to-date sexual harassment policies and procedures, incorporation of transgendered individuals into those policies should be organic and simple to implement. And as with all other workplace discrimination issues, the more proactive you are with these simple steps, the better chance you have to inoculate yourself against claims of discrimination. While these suggestions may seem simple, in the constantly changing world of workplace discrimination law, an ounce of prevention is worth a pound of cure.
Wal-Mart v. Dukes, No Glue in Aisle 23
[Readers: Set forth below is a thoughtful and detailed analysis of the Supreme Court's decision of Walmart v. Dukes. The analysis was prepared by my colleagues, Doug Christensen, Zeb Curtin and Courtney DaCosta. If you have any questions regarding the decision, do not hesitate to contact them at the following numbers and email addresses: Doug, 612.340.8875 or christensen.doug@dorsey.com; Zeb, 612.492.6085 or curtin.zeb@dorsey.com; and Courtney, 612.492.6017 or dacosta.courtney@dorsey.com.
Note, too, that on at 11:00 a.m. on Wednesday, July 20, 2011, the authors will present a free Webinar on the implications of the Dukes decision, "Wal-Mart Stores v. Dukes, the New Landscape for Employment Discrimination Class Actions." If you would like to participate in the Webinar, you can register by contacting Doug, Zeb or Courtney via email, or by accessing our firm's Website, www.Dorsey.com, and clicking on this same article. At the end of the article is a Webinar registration button.
I am hopeful that the detailed analysis below will provide you a clear understanding of the decision and its practical ramifications. Regards, Roy]
Walmart v. Dukes, No Glue in Aisle 23
By: Doug Christensen, Zeb Curtin and Courtney DaCosta
The most sweeping putative employment-discrimination class action in history was not too big to fail. The United States Supreme Court has rejected an effort by three female employees of Wal-Mart to represent a class of some 1.6 million women who had been employed by the company at its 3,400 stores nationwide at any point since 1998 and who allegedly had experienced gender discrimination in the areas of promotions and compensation. The class, proceeding on both disparate-impact and disparate-treatment theories, sought billions of dollars in backpay, as well as injunctive and declaratory relief, to redress Wal-Mart’s alleged violations of Title VII. After the case was filed in 2001, the United States District Court for the Northern District of California certified the class in 2004. The Ninth Circuit affirmed in a 2010 en banc ruling.
For a case to proceed as a class action in federal court, plaintiffs must demonstrate all four requirements of Rule 23(a) of the Federal Rules of Civil Procedure: that (1) the class is sufficiently numerous that “joinder of all members is impracticable,” (2) questions of law or fact are “common to the class,” (3) “the claims or defenses of the representative parties are typical of the claims or defenses of the class,” and (4) “the representative parties will fairly and adequately protect the interests of the class.” Additionally, they must satisfy one of three standards under Rule 23(b). The Dukes class was certified under Rule 23(b)(2), which requires a showing that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”
A unanimous Supreme Court reversed the grant of class certification on June 20, 2011. The Court did not decide whether Wal-Mart had, in fact, discriminated against the women, only whether they could proceed as a class. Justice Scalia authored the opinion of the Court, concluding that class certification was improper under Rules 23(a)(2)—the “commonality” requirement—and (b)(2). Four Justices joined the Court’s opinion with respect to Rule 23(b)(2) while dissenting on the commonality issue. Read more
Roy’s Analysis of Quirky Question # 158, Reporting Harassment to the Harasser
Quirky Question # 158:
Our company has a sexual harassment policy. The policy makes clear that an employee who feels as though he or she has been harassed should report the problematic conduct to our Director of Human Resources. The policy also provides that, if more convenient, or for any other reason, the employee also can report the harassing behaviors to anyone else in management. Essentially, we’ve tried to make it as easy as possible for an employee to report harassment so our company can address the employee’s concerns effectively.
One of our employees recently filed a Charge of Discrimination with the EEOC. She claims that she was sexually harassed by the Director of Business Development, one of our company’s managers, and describes some pretty serious conduct. In her Charge, she contends that she directly confronted this individual and advised him that his behaviors were unwelcome. She also stated in her EEOC Charge that her direct communications with this individual constituted her “report” of sexual harassment to company management.
Surprise, surprise, our Director of Business Development never said anything to anyone else about this harassment “complaint”. Is this legit? Can the sole report of the harassment by the alleged victim of the harassment be made to the harasser?
Roy’s Analysis:
You pose an intriguing question – does it suffice for a harassment victim to “report” the harassment to the harasser or must she also, or alternatively, register her harassment complaint with someone else in management? You may or may not have realized it but your inquiry raises an interesting aspect of the U.S. Supreme Court decisions of Faragher and Ellerth, which I will discuss below.
As you describe, your company has a sexual harassment policy. (Every company should but not every company does.) Further, as you point out, your policy is designed to facilitate the reporting of problematic behaviors. Your employees can report their concerns to the Director of Human Resources or others in management. Of course, this verbiage in your policy is what, at least in part, has caused the problem. Read more
Favoritism or Discrimination? Quirky Question # 149
Quirky Question # 149:
A female employee of our company filed a Charge with the EEOC that she has been discriminated against because one of our executives is involved in a relationship with a subordinate female employee. Our employee argues that this person is receiving preferential treatment and that she is being deprived of opportunities as a result. She claims that this is gender discrimination in violation of Title VII. We have confirmed that the executive is involved in a relationship with the other female employee. But, we do not understand how this could constitute a violation of Title VII.
Roy’s Analysis:
Your perplexity is justified. Most courts that have examined this issue agree with your observation that this type of “favoritism” does not violate Title VII. In my view, the issue is easier when the complaining employee is the same gender as the employee allegedly receiving preferential treatment. (At the end of this analysis, I’ll entertain the idea of whether a male employee could assert a claim of discrimination based upon his boss’s romantic relationship(s) with one or more female employees, assuming they were accompanied by some tangible employment benefit for which he otherwise might have been eligible.)
Before turning to the specifics of your question, let me address generally the questions that can arise when there is a relationship between an executive and one of the executive’s subordinate employees. Since your fact pattern described a male executive and a female subordinate, I will use that gender alignment for my discussion. Of course, the same issues could be implicated if the executive was a woman and the subordinate was a man. Ditto with respect to relationships among individuals of the same gender.
The first issue you need to consider is whether the relationship between your executive and his subordinate is “welcome”. As you likely know, this should not be confused with “consensual”. As the U.S. Supreme Court made clear in the first sexual harassment case to reach the high court in 1986, Meritor Savings Bank vs. Vinson, even a “consensual” relationship can constitute a violation of Title VII if it is not “welcome”. As the Supreme Court pointed out in that case, there was substantial evidence that the sexual relationship between the executive and his female subordinate was not “welcome” even though the two individuals had had sexual relations on multiple occasions over a protracted period. Thus, now that you know there is a relationship between these two employees, you need to assure yourself (and the company) that the relationship truly is welcome.
Let’s assume that the relationship is being enthusiastically pursued by both members of the couple. This leads to the second issue you may need to monitor. What will happen if one member of the couple wants to end the relationship? This problem could be exacerbated if the subordinate female employee wants to end the relationship and the male executive wants to continue the relationship. Will he penalize her in any way? Will he retaliate against her for ending the relationship? Will he simply start treating her negatively? Or, will he pressure her, either through threats or promises of benefits, to continue in the relationship? You need to ensure that your female employee knows she has a reporting option if the relationship comes to an end and she feels the end of the relationship is adversely affecting her professionally. And though I suggested that the problem is exacerbated if the subordinate female employee is the one who ends the relationship, your company may not be in the clear even if the executive is the one who decides to terminate the relationship. In this context as well, there could be problems associated with the relationship’s end. For example, if the subordinate employee is not selected for a promotion or for a particular assignment, will she conclude that she missed out on those opportunities because her boss decided to end the relationship? Will the executive, either intentionally or unintentionally, treat her differently once the personal relationship between the two of them has ended? Will he try to minimize contact with her, perhaps with a corresponding loss of opportunity for her, even if his motivations are to reduce the tension between them?
A third issue that you may wish to monitor is the possibility that the executive becomes involved in serial relationships with subordinate female employees. As you can imagine, this behavior can be quite disruptive in the workplace. Even worse, there are a host of potential problems if the executive is involved with more than one person at a time, or if one member of the “couple” considers it more exclusive than the other. Needless to point out, these situations inject a variety of problems into the working environment that neither the company nor its Human Resource professionals should have to contend.
Yet a fourth question, close to the inquiry you posed, but nevertheless distinct, is what impact the relationship is having on others in the same business unit. Perhaps they are accepting of the relationship; perhaps not. (From the fact that one of your other female employees believes the relationship constitutes a Title VII violation, it would appear that the latter is true.) You need to understand that these types of relationships can have a corrosive effect on the work environment. Particularly where favoritism is involved, other employees can justifiably become resentful. If they feel they are being deprived of opportunities, or that a “less qualified” person is receiving certain opportunities or benefits, not because of merit but because of her relationship with the boss, this situation can be demoralizing. Of course, these observations hold true for spouses working for the same company, parent/child relationships, or other familial relationships. It is precisely because of the potential difficulties associated with these kinds of situations that some companies have adopted anti-nepotism policies or non-fraternization policies. (I previously have written on the subject of Non-Fraternization policies; use the “View By Topic” bar above to find the Index to past articles and scroll down to “Non-Fraternization”. See Quirky Question # 30.) These policies are not without their own problems, but they at least help minimize the risks of actual favoritism or perceptions of favoritism by other employees.
Of course, short of adopting an anti-nepotism policy or a non-fraternization policy, your company could simply adopt a policy whereby no employee will be permitted to supervise or evaluate a subordinate employee with whom he or she is involved. I recognize, however, that one size does not fit all and for some companies the size of the enterprise will preclude the possibility of a transfer. Moreover, even in larger organizations, there are complicated issues that must be addressed, including questions regarding how to address a situation where the relationship develops after the policy has been adopted, how to respond to employees who attempt (perhaps justifiably to conceal the relationship), how to determine which employee should be transferred to another business unit, etc.
With some of these general principles in the background, let’s consider your specific question. Does it constitute a violation of Title VII for one of your executives to have a personal relationship with a subordinate female employee, even if this relationship results in “favored” treatment of that employee? Most likely, no. Could another female employee, who feels disadvantaged by the relationship and decisions stemming from the relationship bring a Title VII claim? As I have learned through many years of practice, employees can (and do) bring claims for a host of reasons, some legitimate and some not, and there is little an employer can do to stop it. Is your complaining employee likely to prevail or her Title VII favoritism claim? No.
By way of example, some of these issues were addressed last year in an analogous case decided by the Tenth Circuit Court of Appeals, Anderson v. Oklahoma State University Board of Regents, No. 08-6249 (August 17, 2009). Anderson, an employee of OSU, reported that his supervisor, Michael Hughes, was having an affair with a female employee of the University. Anderson complained that this affair led to the female employee receiving more favorable treatment than he and other employees who reported to Hughes received. OSU investigated and concluded that Hughes and the female employee “were not having an inappropriate relationship in the workplace.” (This observation by the court begs the question of whether Hughes and his subordinate female employee were having an “appropriate” relationship in the workplace.)
Anderson claimed that after he reported the affair, he was excluded from management meetings and other departmental activities. Three years after he reported the alleged affair, Anderson was terminated, ostensibly as part of a reduction in force. He sued, claiming that he was fired in retaliation for reporting his boss’s affair and that the RIF explanation was merely a pretext for his illegal discharge. The District Court, however, granted summary judgment, ruling that Anderson’s report of the affair did not amount to protected opposition to discrimination.
As the Tenth Circuit pointed out, it previously had held that “preferential treatment on the basis of a consensual romantic relationship between a supervisor and an employee is not gender-based discrimination.” Taken v. Okla. Corp. Comm’n, 125 F.3d 1366, 1370 (10th Cir. 1997). The court opined further, “Because the plaintiffs in Taken id not present any evidence that they were denied employment benefits because they refused sexual advances, were subjected to a hostile working environment, or otherwise were discriminated against because of their gender, their allegations that their supervisor selected his paramour/employee for promotion because of their romantic relationship did not state an actionable Title VII claim because the favoritism was based on a voluntary romantic relationship and not gender differences.”
Affirming the District Court’s dismissal of Plaintiff’s claims, the Tenth Circuit emphasized, “the dispositive issue here, as in Taken, is that the supervisor’s affair and related favoritism are not, without more, actionable under Title VII.” Although the court referenced one circuit’s inconsistent holding, it pointed out that the 2nd, 4th, 5th, 7th, 8th and 11th Circuits all have held that “favoritism” of an employee, based on a consensual romantic relationship, is not actionable under Title VII.
In short, the clear weight of federal judicial authority does not recognize the type of claim that your employee has asserted. (Note, however, that it is beyond the scope of this analysis to assess how state courts, interpreting their parallel state statutes, might assess this issue.) Your intuition that a welcome romantic relationship, even one accompanied by some favoritism, does not constitute a violation of Title VII, is consistent with most judicial opinions on this subject.
At the outset of this analysis, I suggested that, perhaps, an employee who is the same gender as the supervisor would have a more colorable claim of discrimination. Clearly, as the Anderson case illustrates, this would be an uphill battle at best. But, for example, hypothetically, a male employee making the claim of discriminatory treatment as a result of his male boss’s involvement with a subordinate female employee would have a more viable claim that he was being denied certain opportunities on the basis of gender (unless his boss was bi-sexual). The complaining male employee could argue that he would never be considered for a romantic relationship with his heterosexual male boss, and therefore, would never be eligible for the favored treatment enjoyed by his female colleague.
Perhaps this point can be illustrated by a less emotionally charged example emanating from the work environment. By way of analogy, if a male supervisor was an avid golfer but only took subordinate male employees golfing, and if those who golfed with the supervisor received preferential treatment with regard to benefits, promotions, work opportunities, etc., arguably a female subordinate excluded from the “golf group” would have a colorable Title VII claim. Now, let’s assume that there really was evidence that the male supervisor favored, in tangible ways, the female employee (or employees) with whom he had romantic relationships, even if they were welcomed. Would the male subordinate employees excluded from the “romantic partners group” have a colorable claim? Based on the judicial decisions in this area, the answer is likely no. But the claim may not be as farfetched as might first appear.
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