Boss' 'paramour preference' not discrimination - 9th Circ

(Reuters) - A Dignity Health research doctor did not engage in sex discrimination by allegedly showing favoritism toward a female researcher whom he was dating, a U.S. appeals court ruled on Friday.

A unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals, joining the seven other appeals courts to consider the issue, held that an employer who exhibits preferential treatment toward a supervisor's sexual or romantic partner is not liable for sex bias under Title VII of the Civil Rights Act of 1964.

The panel rejected claims by William Maner, a former Dignity lab researcher, that the word "sex" in Title VII refers not only to gender but to sexual activity and that so-called "paramour preference" was a form of unlawful sexual harassment.

"The employer discriminates in favor of a supervisor’s sexual or romantic partner and against all other employees because they are not the favored paramour, no matter the sex of the paramour or of the complaining employees," Circuit Judge Carlos Bea wrote.

San Francisco-based Dignity and its lawyers at Greenberg Traurig did not immediately respond to requests for comment. Nor did Carolyn Kubitschek of Lansner & Kubitschek, who represents Maner.

Maner worked as a biomedical design engineer in the obstetric and gynecological laboratory of Dr. Robert Garfield for several decades, according to filings in the case.

After Garfield moved his lab to the University of Texas in 1999, Maner learned that Garfield and a female lab employee were engaged in a long-term romantic relationship, according to court filings.

In 2008, Garfield relocated his lab to a Dignity facility in Phoenix and arranged for his team to be transferred. At the time, Maner was facing charges of sexually assaulting his 7-year-old daughter.

Maner denied the charges but pleaded guilty to a lesser offense. He was sentenced to eight years of probation, the terms of which required him to reside in Texas, according to filings.

Garfield in 2010 approved a remote work arrangement for Maner allowing him to work from Texas, and the lab soon after lost some of its funding. Garfield gave Maner a highly negative performance review in 2011 and recommended that he return to Phoenix immediately or be terminated, according to court filings. Maner was fired a few months later.

Maner in 2016 sued Dignity in Phoenix federal court, claiming Garfield had shielded his romantic partner from the impacts of reduced lab funding by firing Maner.

U.S. District Judge David Campbell in 2018 granted summary judgment to Dignity, finding that Maner's claims were based not on his sex but on Garfield's preference for his romantic partner.

Maner appealed, arguing that the term "sex" broadly encompasses sexual activity and not just sexual characteristics, but the 9th Circuit on Friday disagreed.

To determine whether an employer discriminated based on sex, Bea wrote, the key question is whether changing the employee's sex would have yielded a different choice by the employer. But Garfield's alleged favoritism toward his partner would not have changed had Maner been a woman, the judge said.

The 2nd Circuit in the 1986 case DeCintio v. Westchester County Medical Center first held that "paramour preference" did not violate Title VII, and the 9th Circuit on Friday became the seventh appeals court to follow suit.

The panel included Circuit Judges William Fletcher and Michelle Friedland.

The case is Maner v. Dignity Health, 9th U.S. Circuit Court of Appeals, No. 18-17159.

For Maner: Carolyn Kubitschek of Lansner & Kubitschek; Paul Eaglin of Eaglin Law Office

For Dignity: Lindsay J. Fiore of Greenberg Traurig