Court countenances canning complainers of consensual canoodling

In Centucky Kentucky, it’s not retaliation to fire employees who complain about sexual favoritism.

Then again making apple-pie moonshine and using a butcher cleaver to slice off the arm of a Detroit gangster isn’t frowned upon either. At least, that’s what watching Justified teaches me.

But even in Kentucky, they have laws. No, it’s true.

After the jump, you’ll see a KY federal court’s rationale for the latest sexual-favoritism ruling. And I’ll provide some tips for dealing with employees who complain about cushy assignments given to employees who get freaky with management.

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In Stanley v. Insights Training Group, LLC (view the opinion here), lots of supervisors were bumping uglies with lots of employees. (The court spent nine pages detailing the scandalous facts. My head is still spinning. Although, that could have been the bourbon. May I suggest next time using a flow chart).

According to the plaintiffs, one male employee (Stanley) and one female employee (Flannery), the employees who put out received preferential treatment at work. Let’s call it sexual favoritism. The plaintiffs believed that this was gender discrimination. So, they complained to management, but were later fired after complaining. Consequently, they sued for retaliation.

Sexual favoritism is not gender discrimination and, therefore, no retaliation follows.

Now, we know from this post, that it’s legal — in Iowa, at least — to fire a female employee because of her “irresistible attraction.” Could it also be legal to fire employees who complain about sexual favoritism?

Well, yeah, you read the title this post.

But here’s why.

To state a claim for retaliation, an employee must have engaged in a protected activity. One way for an employee to engage in a protected activity is to oppose unlawful discrimination (e.g., by complaining about it to the company). But here’s the catch: the employee must have a reasonable and good faith belief that the practice he/she is opposing is unlawful.

Here, neither of the plaintiffs had a reasonable and good faith belief that sexual favoritism is gender discrimination. As the court noted, “the alleged favoritism was based only upon a special relationship between certain staff members and managers. All other staff members, whether male like Stanley or female like Flannery, were equally negatively affected by the purported favoritism.” Thus, nothing about the favoritism had to do with gender.

Indeed, several courts around the country (hereherehere, and here) have ruled that complaining about sexual favoritism is not a precursor to a retaliation claim.

(Although, I suppose that if the only employees having sex with managers and getting preferential treatment were one gender, and the employees of the other gender remained workplace-celibate, there could be a gender-discrimination claim.)

Let’s leave you with three takeaways:

  1. Don’t reward the employees who bang the managers — because they bang the managers. That’s just no way to run a business.
  2. Look out for complaints and lawsuits from paramours who get dumped. Two words: sexual harassment. And if an employee is fired for complaining about sexual harassment, then you have a real retaliation claim.
  3. Non-EEO laws may apply too. This post initially contained two takeaways. That is, until @Mahalaw tweeted me (here) to remind me about the issue of protected concerted activity. Remember, even in a non-union workplace, disciplining multiple employees who complain about workplace conditions may violate the National Labor Relations Act.