Discrimination Because of “Sex” Isn’t Necessarily Sex Discrimination

Federal law (Title VII of the Civil Rights Act of 1964) prohibits discrimination because of sex.

Ever since this provision was interpreted to extend to sexual harassment, some confusion has been caused by two very different meanings of “sex”:

• The condition or character of being female or male; the physiological, functional, and psychological differences that distinguish the female and the male.
• The sexual urge or instinct as it manifests itself in behavior.

[American Heritage Dictionary of the English Language, Fourth Edition]

A recent Eighth Circuit case analyzes one of these confusing situations:

An employee is terminated because of her apparent consensual intimate relationship with her male boss, but the boss remains employed.

Can the employer justify the difference in treatment as being based not on sex (gender) discrimination but on the sex-neutral factor of seeking to placate the boss’s jealous wife?

In Tenge v. Phillips Modern Ag Co., 05-2803 (8th Cir. 04/28/06), the terminated female plaintiff worked closely with the owner of the company on a regular basis. The owner’s wife also worked there.

The wife began to believe that her husband and the plaintiff were involved in a romantic relationship, and was concerned that the plaintiff was attempting to seduce her husband.

After finding a torn-up note “of a sexual or intimate nature” from the plaintiff to her husband in
the company dumpster, and piecing it together, the wife fired the plaintiff. Though the husband reinstated the plaintiff, he eventually fired her again, telling her that his wife was making him choose between his best employee [the plaintiff] or her and the kids.

The plaintiff’s claim was that she was terminated because she is a woman.

The court framed the issue this way:

Whether Title VII’s prohibition on discrimination on the basis of “sex” includes a termination on the basis of an employee’s admitted, consensual sexual conduct with a supervisor.

After considering two lines of relevant cases, the court concluded that, on the facts presented, such termination was not prohibited.

The first line of cases addressed “sexual favoritism,” where one employee was treated more favorably than members of the opposite sex because of a consensual relationship with the boss, and the members of the opposite sex complained.

Courts have often rejected such claims because the complained-of discrimination involved a preference based on the favored employee’s status as the boss’s “paramour,” not the other employees’ status as members of the opposite sex. In the leading case of this type, DeCinto v. Westchester County Med. Ctr., 807 F.2d 304, 306 (2d Cir. 1986), the court said: “[t]he proscribed differentiation under Title VII . . . must be a distinction based on a
person’s sex, not on his or her sexual affiliations.” The Eighth Circuit summarized:

The principle that emerges from the above cases is that absent claims of
coercion or widespread sexual favoritism, where an employee engages in consensual
sexual conduct with a supervisor and an employment decision is based on this
conduct, Title VII is not implicated because any benefits of the relationship are due
to the sexual conduct, rather than the gender, of the employee.

The second line of cases relied upon by the Eighth Circuit, which it found more directly analogous, involved less favorable treatment than employees of the opposite sex as a result of consensual sexual conduct.

The court said:

A number of federal district courts have faced similar cases and concluded that terminating an employee based on the employee’s consensual sexual conduct does not violate Title VII absent allegations that the conduct stemmed from unwelcome sexual advances or a hostile work environment.

Based on these principles, the Eighth Circuit said the termination was lawful because based not on the plaintiff’s status as a man or woman, but on her own actions and the owner’s desire to allay his wife’s concerns over such actions.

Everyone following this impeccable logic so far?

Good. Now, allow me to play law professor, by changing the facts a bit to present a “hypothetical”:

What if the plaintiff’s romantic interest had been in someone other than the owner, perhaps another employee of the opposite sex working in the same or similar job as the plaintiff? Could the plaintiff then claim sex discrimination if she was fired, but he wasn’t?

I think it depends on whether the employer could successfully justify treating the two employees differently.

Indeed, in this case the court considered such a disparate treatment argument, and said: “It may well be that an employer who always fires the woman when two employees engage
in an office romance would be guilty of gender discrimination.” But it found no evidence supporting such a pattern of sex discrimination.