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Hastings Law Journal

Authors

Michael J. Levy

Abstract

This Note considers whether a Title VII claim should exist where a supervisor promotes a person with whom he or she is in an romantic relationship, to the exclusion of other qualified applicants. Since the early 1980s, federal courts have expressed differing views as to the validity of such "sexual favoritism" claims. The difference in views stems mainly from a lack of clarity as to the meaning of the word "sex" in Title VII. In 1990, the EEOC issued a policy guidance disfavoring Title VII sexual favoritism claims where the underlying relationship is isolated, consensual, and romantic. Professor Joan E. Van Tol has criticized the EEOC for not recognizing sexual favoritism as a distinct form of sexual harassment under Title VII.

This Note is a response to Professor Van Tol's arguments. The author disputes Van Tol's arguments and explains the reasons why courts should follow the EEOC in rejecting causes of action for sexual favoritism. In particular, the author analyzes Title VII case law and hypothetical situations to show that the only logically consistent meaning of the word "sex" in Title VII is a meaning which prohibits gender-based discrimination, but does not prohibit sexual activity regardless of gender.

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