The scenario is all too common.  An employee complains that, despite her undisputedly superior qualifications, she has been passed over for advancement.  The promotion, along with its increase in pay, went to her supervisor’s girlfriend.  The matter quickly leads to the question: does the passed-over employee have a claim for sexual discrimination?

Neither the Maine Supreme Judicial Court nor the First Circuit Court of Appeals, whose jurisdiction includes Maine, has yet decided the issue.  However, in a recent case arising in Georgia, the Eleventh Circuit joined six other Federal circuits in holding that allegations that a promoted individual was engaged in a consensual sexual relationship with a supervisor who made a selection for promotion did not state a claim for sex discrimination in violation of Title VII.

The Georgia case involved a male career employee with the United State Postal Service who applied for a supervisor’s position.  A review board unanimously selected the employee as best qualified for the post; however, the newly appointed local postmaster selected his girlfriend for the position. The rejected employee then filed a lawsuit claiming that the failure to select him for the supervisory position constituted unlawful sexual discrimination in violation of Title VII.

The Eleventh Circuit, citing decisions of the other Federal circuits that have addressed the issue, held that there was no cause of action under Title VII.  The Court pointed out the Plaintiff was in exactly the same position as others, whether male or female, who might have applied for advancement.  The disfavor was not because of their sex, but because of the decision marker’s preference for his paramour.

We have no reason to believe that a Maine court or the First Circuit, given the opportunity, would depart from the reasoning of seven Federal circuit courts in denying the viability of a cause of action based on sexual discrimination.  Thus, while Maine employers who are faced with consensual sexual relationships between supervisors and employees face numerous potential problems, a successful lawsuit by a disgruntled employee passed over for advancement is probably not among them.