Paramours, Promotions, and Sexual Favoritism: Unfair, but is There Liability?

Abstract

This Comment explores the current legal boundaries of sexual favoritism and the problems these boundaries pose for plaintiffs and employers. Part II introduces the federal sex antidiscrimination statute, Title VII, and a few parallel state laws. Part II discusses the theory through which the Supreme Court of the United States and the EEOC came to recognize sexual harassment as an invalid form of sex discrimination. Part IV traces the courts' and the EEOC's evolving position on sexual favoritism as an actionable form of discrimination. Part V reviews the various theories and rationales as to why sexual favoritism is or is not a valid cause of action. Part VI recommends a framework for recognizing sexual favoritism as an actionable form of sex discrimination under Title VI. Part VII discusses employer liability for sexual favoritism and harassment claims and recommends ways to avoid such exposure. Finally, Part VIII concludes that, despite the potential problems associated with sexual favoritism claims, there is sufficient room in both statutory language and Supreme Court precedent to recognize sexual favoritism for what it is-improper and actionable discriminatory behavior.