You are good at your job and are clearly in line for a promotion. Your boss is having an affair with a co-worker, but that's his business, right? But then one day you find out that the paramour has been promoted to the job you thought was yours. Do you have a claim for sexual harassment, even though he act appropriately with you at all times? Yes!
"Paramour preference" sexual harassment exists when a supervisor gives preferential treatment to a sexual partner, thus creating a hostile environment for those employees who aren't involved with the supervisor and not receiving preferential treatment. The catch is that there needs to be more than one isolated incident.
The Equal Employment Opportunity Commission (EEOC) has taken the position that, although isolated instances of favoritism don't violate Title VII,if favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors.
According to the EEOC, paramour preference harassment can also support a claim of quid pro quo harassment: "if a female employee is coerced into submitting to unwelcome sexual advances in return for a job benefit, other female employees who were qualified for but were denied the benefit may be able to establish that sex was generally made a condition for receiving the benefit." EEOC Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism (Jan. 12, 1990, No. N-915.048), Section B. See 29 CFR §1604.11(g).
According to a federal court decision (Perron v Department of Health & Human Servs. (ED Cal, Nov. 29, 2007, "where a supervisor's preference for his or her paramour is transformed from simple favoritism to the concrete bestowal of tangible, economically valuable employment benefits denied other employees, such conduct can constitute prohibited discrimination."
The takeaway: If you feel that some hanky-panky is going on between your boss and a subordinate who has received job benefits to which you are entitled, you may have a valid discrimination claim. Should you need help in pursing a claim in New York, call the attorneys at Schwartz Perry & Heller