Favoritism

Scope

Favoritism can happen in any workplace setting. Title VII prohibits employers with 15 or more employees from discriminating against (or favoring) employees or applicants based on race, color, religion, sex, or national origin. However, other forms of favoritism are not prohibited outright.

Regulatory citations

• None

Key definitions

• None

Summary of requirements

While Title VII of the Civil Rights Act, the Americans with Disabilities Act, and other laws prohibit discrimination against employees and applicants belonging to protected classes, they do not outright prohibit other forms of favoritism in the workplace.

In some cases favoritism is allowable, even expected. Take the hiring selection process for example. Employers might favor applicants who have more work experience or higher academic degrees. In this case favoritism would be legitimate, as it is founded on prospective employees’ personal qualifications. When not based on business considerations, favoritism can invite questions about a company’s ethics, decrease employee morale, and even lead to litigation.

Unfair favoritism. Managers who award preferential work assignments to employees who play on their softball team or company presidents who hire their friends with little regard for their qualifications practice unfair favoritism.

Impacts. Some of the impacts of unfair favoritism include:

• Low morale and trust issues. Playing favorites can lead to a decrease in employee morale and impact the productivity of both the “favored” and “not-favored” employees. Workers who believe company decisions are made on the basis of a person or group’s relationship with a supervisor lose trust in their employers. They become frustrated and unhappy and may resent their supervisors and more favored coworkers.
• Decreased efforts. Some employees might put less effort into their work; why bother doing their best when promotions are awarded to a supervisor’s paramour or golf buddy? Favored employees feel protected by their relationship with their supervisor and might not feel any motivation to improve within their work duties and responsibilities; they may even see this as rationale to “slack off” at their job.
• Entitlement and conflict. Those favored by management become aware of the “special treatment” they receive, which can have a chilling effect on teamwork in the workplace. Being favored for reasons other than merit can lead favorite employees to develop a mentality of entitlement. They may believe their opinions and needs are more important than their coworkers’. This, in turn, can lead to conflict within teams and the stifling of new ideas as employees who are not favored see their contributions ignored.
• Retention issues. The employer’s business may also suffer through the retention of employees who an employer, if not for favoritism, would otherwise terminate or lay off. If an employee performs unsatisfactorily at her job but is a favorite of a supervisor, the supervisor may report her performance as satisfactory. When it comes time for a reduction in force, the company may terminate another, more qualified employee.
• Discontent and frustration. The promotion of unqualified employees into leadership roles due to favoritism may also breed discontent. Employees will quickly become frustrated with supervisors who are ill-equipped for their management roles. Favored employees who are unqualified for their new roles may cause more harm than good by making poor decisions and not understanding their job duties.
• Company reputation. Favoritism in the workplace can injure an employer’s reputation with potential applicants and investors. Finding quality employees can be difficult if a company is known to hire and promote on what is seen as an unfair basis. Investors may also shy away from companies who promote unqualified employees into key leadership roles.

Liability. Another concern with favoritism is liability. Remember, Title VII prohibits employers with 15 or more employees from discriminating against (or favoring) employees or applicants based on race, color, religion, sex, or national origin. So, an employer who favors natural-born American citizens over naturalized citizens would likely be in violation of the law.

Other laws, such as the ADA and the Uniformed Services Employment and Reemployment Rights Act (USERRA), prohibit discrimination on the basis of disability or military status.

However, suits may also be brought on the basis of characteristics not protected by Title VII and other laws. Unfair favoritism may be unethical, but it is not always a violation of the law.

While favoritism in the workplace is not necessarily prohibited, it can be the basis for discrimination that is against the law, if it shown to be widespread.

• Example. A 2005 California Supreme Court ruling held that while a supervisor’s favoritism to a single employee with whom the manager is having a consensual relationship does not constitute sexual harassment nor gender discrimination, favoritism toward sexual partners may constitute a discrimination claim, if widespread and severe enough to disrupt working conditions. The case, Miller v. Department of Corrections, involved a male supervisor engaged in three simultaneous sexual affairs with female employees. Through the course of these affairs, the supervisor granted unfair employment benefits to his paramours, negatively impacting more qualified employees. Disenfranchised employees who complained about the unmerited preferential treatment were subjected to retaliatory conduct and harassment. It was not the fact that the supervisor favored the women with whom he had consensual relationships over other employees, but rather the fact that the favoritism affected the work environment so severely that resulted in the court’s decision. The supervisor’s actions sent a message to female employees that “managers view women as `sexual playthings,’ thereby creating an atmosphere that is demeaning to women.” The manager’s actions conveyed the message that, in order to get ahead in the workplace, women would need to engage in sexual relationships with their supervisors.

Addressing the problem. Many companies have taken steps to prevent or limit favoritism in the workplace. In order to avoid problems and liability, it is best to have a clear, objective policy covering favoritism and the company’s position on it. Make sure this is enforced consistently. If the company already has a workplace relationship policy, it might be a good time to review it.

• New or existing policies. When crafting a new policy or re-evaluating an existing one, examine the effects of favoritism within the company’s supervisory chain as well as the organization’s needs. Perhaps the policy should require employees who are immediate family members or close relationships to notify human resources (HR) of the relationship. The company may want to create a policy stating it will not hire individuals into positions which will create a conflict of interest. Other employers may find the best fit for their organization to be an anti-fraternization policy warning against supervisors and employees spending extended periods of time together outside work. Organizations in small communities may find it difficult to implement such policies, as preventing relatives from working together may simply not be feasible.
• Implementation. Examine state and local laws carefully when crafting policies; it may be a good idea to ask for assistance from a legal professional. Once the rule is written, be sure to educate all employees on the policy. Also check that the company has established guidelines for dealing with relationships involving potential conflicts of interest. It is also a good idea to make sure supervisors understand the importance of promoting fairness within the workplace. Manger training may be provided on how to prevent making decisions based on nonworkplace-related preferences.
• Relationships. Be alert to rumors of relationships, but use caution when approaching affected parties about the claims. These rumors may not be true. If it appears a potential relationship could cause a conflict of interest or may be discriminatory, talk to the parties privately. Bring the gossip to the manager’s attention. Take appropriate action based on the organization’s policy and guidelines, and whether the favoritism is legitimate and/or against the law.
• Records. When making employment decisions - such as promotions or terminations - be sure to keep detailed records. These records should show why decisions were made and be supported with qualification-based evidence. If an employee does file a discrimination suit, detailed records may not guarantee a judgment in the company’s favor, but may make defense easier.