U.S. Second Circuit Court of Appeals Upholds Dismissal of Retaliation Claim Made in Connection with “Paramour Preference” Claim

In Gail Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., et al., 12-3489-cv, April 26, 2013, the plaintiff filed claims under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, alleging that an affair that one of her brothers had with another worker in their family business created a sexually hostile work environment, and that following her complaints, both of her brothers retaliated against her. The lower court dismissed both claims, and the plaintiff appealed only the dismissal of her retaliation claims.


The court noted that although the plaintiff was not appealing the dismissal of her hostile work environment claim, the dismissal was proper, because the claim was similar to a “paramour preference” claim, in which an employee complains that a romantic relationship between the employer and another employee results in preferential treatment for that employee. The Second Circuit noted that such claims do not result in “discrimination on the basis of sex.” In order to prevail on a sex-based hostile work environment claim, the discrimination must be because of the employee’s sex.
As far as the retaliation claim was concerned, the Second Circuit held that the plaintiff’s internal complaint was not based upon a “reasonable belief that the underlying challenged actions of the employer violated the law.” Moreover, the court rejected the contention that the plaintiff had a “good faith reasonable belief that she was opposing” an unlawful discriminatory practice. The court’s assessment was based upon the “totality of circumstances.” Finally, the Second Circuit found that the plaintiff could not satisfy the requirement that she engaged in “protected activity” of which the employer was aware. While there was no dispute that she did complain about the relationship, the complaint did not appear to be premised upon the fact that she believed the conduct to violate Title VII and New York law. Rather, the plaintiff’s complaints appeared to be based upon her belief that the relationship was undermining her authority as Human Resources manager. The court concluded that the plaintiff’s belief that the conduct was unlawful was not objectively reasonable, and even called into question the plaintiff’s subjective belief that the conduct she complained of constituted unlawful discrimination.
Nevertheless, the court left the door open to the possibility that “protests about a ‘paramour preference’ scenario could amount to protected activity. Had [the plaintiff] complained, or even suggested, that she was being discriminated against because of her sex (or some other trait), we would have a different case.”
Consequently, the court affirmed the dismissal of the plaintiff’s sexual harassment and retaliation claims under Title VII and New York State Human Rights Law.

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