Can Fired Mistress Sue for Sex Discrimination? More on Workplace Romance

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An attorney did not discriminate on the basis of gender when he fired his former mistress because of their strained workplace relations, the New York Appellate Division of the Supreme Court ruled (Mauro v. Orville, N.Y. App. Div., No. 84627, 10/28/99).

An office manager sued the attorney for sex discrimination in violation of state law (N.Y. Exec. Law 296), after she was fired following the end of an extra-marital affair with him. She argued that she would not have lost her job if she had not engaged in a sexual relationship with her employer. The married attorney is a sole practitioner.

Finding that the office manager's affair with her employer was consensual, not "unwelcome," and that she was not subjected to any unwelcome conduct following its breakup, the court ordered dismissal of the sex discrimination claim. However, the trial court granted partial summary judgement to the office manger after the attorney for the defense conceded that she had been fired because the attorney's wife objected to her working in his firm.

Reversing the lower court, the state appeals court said the employee's discrimination allegations were based on "her past sexual activity." The court said sex discrimination arises when "members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the opposite sex are not exposed," citing the U.S. Supreme Court's 1998 ruling in Oncale v. Sundowner Offshore Servs. (6 FEP Cases 221).

The court ruled that the statutory term "sex" should be deemed synonymous with "gender" and does not include "sexual activity, sexual liaisons, or sexual attractions." The court also concluded that "discrimination against an employee on the basis of a failed voluntary sexual relationship does not of itself constitute discrimination because of sex."

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