A family-owned business recently got tangled up in a lawsuit when the HR manager accused her brother, one of the vice presidents, of having an illicit affair with a subordinate employee that created “sexual favoritism” in the workplace. Did she have a case?
Here’s what happened. “Sandra” worked as an HR manager in Howard I. Shapiro & Associates Consulting Engineers (HIS) in Lynbrook, New York—a family business. Her brothers, “Josh” and “Neil,” served as vice presidents.
In November 2008, Sandra discovered that Josh was having an affair with a subordinate, “Lee Ann.” According to Sandra, the office became “completely permeated with sexual favoritism” toward Lee Ann, who left the office early, took time off without notice, and violated other company policies.
Sandra eventually quit her job of 28 years and filed a lawsuit alleging that the affair created a “sexually biased environment” that prevented Sandra from “performing her duties as head of Human Resources.” Sandra further claimed that Josh’s favoritism “created an atmosphere in the workplace that was demeaning to women.”
The U.S. District Court for the Eastern District of New York dismissed her case, finding that Sandra failed to show that her brother “engaged in sexually explicit behavior or conversations in the office,” or did anything “of a sexual or gender-specific nature that could be perceived as ‘demeaning to women.’” Sandra appealed.
The 2nd Circuit Court of Appeals upheld the lower court’s dismissal, noting that the circuit court “has long since rejected ‘paramour preference’ claims.”
Citing a previous ruling, the court noted that “to establish a sex-based hostile work environment under Title VII, a plaintiff must demonstrate that the conduct occurred because of her sex.” The court found that Sandra “made no complaints that suggested a belief that she was being discriminated against on the basis of any trait, protected or otherwise.” To find in her favor “would require us to endorse not only her belief that the law of Title VII is something other than what it is, but also her apparent belief that the definition of ‘discrimination’ is something other than what it is.”
Sandra’s complaint suggests “at most, a consensual affair that—while perhaps unfair, bad for morale, and detrimental to the department and the company—in itself harmed no one on account of a protected characteristic,” the court concluded.