Sexual Favoritism: A Cause of Action Under a "Sex-Plus" Theory
Best, Susan J.
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This Comment avers that sexual favoritism is a form of "sex-plus" discrimination. Traditionally, sexual favoritism has been argued as being a form of sexual harassment. Therefore, in order to be successful in a claim for sexual favoritism, a plaintiff must prove sexual harassment. The courts' treatment of sexual favoritism as sexual harassment is problematic for two reasons. First, placing the burden of proof needed for sexual harassment--i.e., proof that the defendant has created a hostile work environment--on plaintiffs injured by sexual favoritism is excessively high. Secondly, because there is no claim under the theory of sexual harassment for instances of consensual sexual relationships in the work place, if such relationships result in sexual favoritism to the detriment of a third party, those third parties have neither legal action nor remedy. As an alternative to the inadequacies of the current law, this Comment recommends that courts adopt the sex-plus theory. Under this more fitting theory, a plaintiff in a sexual favoritism lawsuit who is able to prove discrimination based on sex in conjunction with a sexual relationship, or lack thereof would have a right to damages as a matter of law.