Workplace Favoritism Defined
Favoritism in the workplace is defined as the act of treating one employee preferentially over another. There is an important distinction between favoritism and preferential treatment. Favoritism tends to involve giving an advantage to an employee based on a personal relationship with the boss, such as friendship or family ties, as opposed to merit. Preferential treatment on the other hand can be earned solely through job performance.
The impact of favoritism can be particularly corrosive, especially in a business. If favoritism becomes known to other employees, it could lead to unproductive work environment. It could also impact company morale and lead to employee turnover.
Favoritism differs and can have different impacts depending on the type of environment in which it is practiced. A 2014 Society for Human Resource Management article described the different types of environments in which favoritism can arise. For example , favoritism in a government work environment may not be as detrimental as in a private work environment. Similarly, favoritism is more highly regarded in a family business than in a non-family business. Favoritism can also be categorized based on whether it occurs in an individual or group context. Individual favoritism occurs when an employee receives unfair advantages from a supervisor as a result of a close personal relationship. Group favoritism on the other hand occurs when group leaders, such as sales managers, give preference to employees who are part of their social circle, thereby penalizing those who do not enjoy a similar relationship with the same manager.
Legal Ramifications of Workplace Favoritism
While not illegal per se, favoritism can sometimes overlap with or contribute to actions that could violate employment laws. The lines between favoritism and discrimination can be hard to trace, especially when an organization does not have formal policies addressing the use of its discretionary power. Favoritism is usually thought to be an issue only in connection with seniority systems, or, simply put, the order of a person’s acquisition of seniority, such as years of service. However, as explored below, discrimination laws may also be violated under a favoritism theory when everyone else is viewing (or should be viewing) the manager’s actions under a lens of favoritism, or when the "favored" employee’s success is linked to a discriminatory protected characteristic.
If an employer does not have a formal policy that defines what constitutes an "emergency" that calls for giving or promoting outside of the company’s regular protocol, and there is an alleged favoritism situation involving a favored employee, it may be argued that the enforcement of the employer’s seniority system violates discrimination laws under the FMLA, ADA, Title VII, ADEA, or other employment laws. It may also be asserted that the employer’s failure to advise employees of the existence of a "favoritism" policy or like policy has denied necessary notice, which also violates public policy. Courts have held that favoritism may be illegal if it results in adverse employment action on the basis of a protected class status (i.e. race, age, religion, national origin, sex, etc.). For example, if management employees give favors to other management employees based on their men vs. women status, marital status, or sexual orientation, the imposition is always an unlawful one, and as such may lead to legal liability for the supervisor/manager who initiates the favoritism. Individuals with knowledge of the illegal conduct may also be held liable if they had an opportunity to correct the behavior but failed to do so, even if they are not management or supervisory employees.
Favoritism used as a basis for discrimination has been actionable in cases where supervisors engaged in repeated sexual favors of subordinates to obtain promotions or other favorable treatment. In Edwards v. City of Biloxi, Mississippi, the Mississippi Supreme Court reversed summary judgment and remanded the case holding that the trial court erred in finding no evidence of favoritism. In Edwards the evidence showed that three of the four lowest-ranking officers were minority officers; 10 out of the 12 senior officers were white, and half had been promoted by the chief. The Mississippi court went on to determine that the positions given were given to the wife of the police chief and his wife’s best friend, supporting an argument of favoritism based on kinship and marital status.
In Evans v. City of Pasadena, California, 2008 U.S. Dist. LEXIS 18544 (C.D. Cal. Mar. 7, 2008), the plaintiff alleged that the defendant violated the Fair Employment and Housing Act, California common law; and the California Government Code Section 815.2. The plaintiff was terminated after he complained that Anglo officers in his unit allegedly were favored over Hispanic officers. The alleged favoritism included assignment to undercover assignment, appointments to special units, and invitations to personal events. Responding to a motion for summary judgment, the court found evidence suggesting that the favored employees were those who belonged to the same ethnic and racial group as the chief. The court denied the motion for summary judgment, allowing the case to proceed to trial.
This type of "favoritism discrimination" is often found in cases of discrimination based on status of being an at-will employee and belonging to a protected class. For example, in Munoz v. Power Recovery Sys., 2014 U.S. Dist. LEXIS 65975 (D. Mass. May 16, 2014), the plaintiff alleged discrimination based on race and gender. Plaintiff, a Hispanic male, was reduced to part-time and then dismissed from employment while a larger number of non-Hispanic white male employees continued to be employed in full-time positions. In addition, plaintiff alleged that while other non-Hispanic white males were permitted to continue their employment, he was dismissed because he was an at-will employee, not a "good old boy" (someone who was favored by the CEO), was older than the CEO, and was a member of a protected class. His first claim was that the defendant took an adverse employment action against him based upon his being an at-will employee. His second claim was that the company favored employees it described as "good old boys," or those that "spent time with the owner and took on any work he gave them." The defendant asserted that there was no violation of 29 U.S.C. Section 630, and that it had a legitimate business reason for not continuing plaintiff’s employment. The court refused to dismiss the case asserting that there was a genuine issue of fact remaining regarding whether defendant’s actions were motivated by discrimination, thus dismissing the actions as favoring the "good old boys" and disregarding its own procedural regulations. The case proceeded through discovery and settled prior to trial.
Finally, favoritism claims are often stated where rules and standards are not observed or enforced in a uniform, consistent, fair manner. Under federal laws such as Title VII and the ADEA, the law prohibits an employer to favor one employee over another based on impermissible considerations (such as age, race, gender, or national origin). Therefore, if favoritism is directed to the disfavor of others based on race, age, gender, or national origin, an employer could be liable if either employer’s actions disproportionately and adversely impacted a protected class employee, or if there was direct evidence of discrimination.
Favoritism is not illegal unless prohibited by an employer’s policy. If favoritism results in harm to others, it may nonetheless serve as the basis for a challenge to existing organizational practices.
Favoritism Under Federal Law
There are no federal statutes that specifically prohibit favoritism in the workplace. However, several federal employment laws may apply to acts of favoritism if they arise from, or are related to, discrimination or harassment prohibited under those laws. For example, favoritism in pay, job assignments, promotional opportunities, benefits, or other employment matters based on race, color, sex, age, national origin, disability, or religious discrimination may be deemed to be a violation of federal discrimination laws. Under Title VII of the Civil Rights Act of 1964, for instance, an employer may not discriminate on the basis of race, color, religion, sex or national origin. The Age Discrimination in Employment Act makes it illegal for an employer to discriminate against any employee who is 40 years of age or older with respect to employment and benefits decisions based on age. In addition, Title I of the Americans with Disabilities Act prohibits employers from discriminating against a qualified individual with a disability with respect to the terms, conditions, and privileges of employment, including all employment-related activities such as job assignments and promotions. Finally, the Equal Pay Act prohibits employers from providing different wages to workers of the opposite sex for equal work unless the differentials are made pursuant to one or more of the specified defenses to the EPA’s equal pay requirement.
Because favoritisms claims are predicated on age, gender, or other discriminatory reason, this section of the law falls under the Equal Employment Opportunity Commission and the Department of Labor. Each of these agencies addresses discrimination in some form. The ADEA, for instance, states that it is unlawful for an employer to take adverse actions against an employee because of age (and not favoring that employee because of his/her age). The same is true under the Equal Pay Act.
State Law Protections Against Favoritism
The favoritism laws we have noted above apply to all employers, without exception. We now turn to state-level favoritism laws; as you will learn, some states prohibit favoritism in specific situations.
Alaska
You might be surprised to learn that Alaska has the most comprehensive favoritism law in the U.S. Its discrimination statute, AS 18.80.220, consists of eight pages in the codified statutes (12 AAC 62.160). The law applies to "public accommodations," including restaurants, taverns, hotels, and theaters, as well as to all actors or agencies within the judicial system.
The law prohibits the following:
—discriminating against a person on the basis of race, religion, color, national origin, physical disability, sex, age, or marital status with regard to the provision of any public accommodation;
—illegal discrimination in the rendition of services from municipal facilities and public civic and cultural centers;
—through any means, causing or attempting to cause a public accommodation to discriminate upon any of the above-listed bases.
An employer/principal who violates or causes a public accommodation to violate these prohibitions can be subject to civil action or administrative proceeding imposed by the attorney general of Alaska (similar to the federal government).
California
California courts have expounded on and defined favoritism in several cases. For example, in a recent 6-0 decision, the California Supreme Court in Roby v. McKesson Corp. defined wrongful termination of employment based on favoritism as follows:
"Favoritism" is the proposition that an employer may not discharge an at-will employee for a reason outside the scope of reasons clearly recognized by the public policy of the state as impermissible. Favoritism is not a precise definable term; it is a generic or descriptive term in everyday usage; and, we understand the term "favoritism" not to apply to every form of favoritism but only to that which is unlawful, based on a prohibited ground, or violative of fundamental public policy, such as dishonesty.
Florida
Florida does not have a favoritism law per se, but the case law defining "nepotism" makes clear it treats favoritism between family members as a special concern. The Florida Nepotism Statute authorizes the State Board of Education and the Commission on Ethics to remove employees for "malfeasance, misfeasance, and neglect of duty" for engaging either directly or indirectly in the hiring or advancement of relatives. More to the point, the Florida Ethics Code, Chapter 112 of the Florida Statutes, prohibits commission of "misfeasance and neglect of duty, malfeasance, and violation of the public trust."
Michigan
The Law of Favoritism in Michigan is most clearly defined in MCL 15.341. The statute states that favoritism in the hiring, promotion, or discipline of an employee who is a relative of the appointing officer or employee will be considered a misuse of public office or trust, and a violation of Michigan law.
Culture of Favoritism in the Workplace
Favoritism in the workplace can have a detrimental impact on morale and productivity. This phenomenon usually stems from the existence of one or more "golden employees," individuals who enjoy a superior level of treatment that is not available to others. Favoritism often creates rifts in the fabric of work relationships, leading to a toxic environment that can inflict significant damage to corporate culture. Productivity and morale will typically suffer as a result.
Workplace favoritism impacts different employees in different ways. In many instances, the target of favoritism (the favorite) experiences a dramatic, unexplainable boost to their self-esteem. The favorite accepts the added praise, accolades and/or special treatment as a personal affirmation of their worth and value within the organization. Oftentimes, these individuals treat their colleagues in a derogatory manner, viewing them as objects to be manipulated instead of valued peers to be respected.
Conversely, those who are excluded from the circle of favoritism often feel underappreciated and devalued . These employees become frustrated with unequal treatment, as it creates a perception that favoritism benefits certain individuals at the expense of others. Distaste for the favorite often leads to ridicule, attempts to sabotage their efforts and other behaviors intended to undermine both the individual and the organization. These actions ultimately breed resentment and an adversarial work environment, resulting in low morale and decreased productivity.
As noted earlier, this problem tends to be very disruptive to corporate culture. Employees who perceive that favoritism exists become distrustful of their colleagues and the organization at large. This distrust leads to an adversarial rather than collaborative atmosphere, where employees avoid sharing information and working together toward common goals. Instead of promoting a team-oriented culture, favoritism can create disconnection and disengagement among staff members. When morale and productivity dip as a result of favoritism, the workplace becomes toxic, causing many employees to seek employment opportunities elsewhere.
Addressing Favoritism Legally
Employees who contemplate possible claims for favoritism, or retaliation for reporting favoritism, should start their actions by bringing formal complaints to the company or other workplace entity that is responsible for the dispute resolution process. Such a report must include specific allegations of favoritism or its consequences.
For example, if you are a state employee and you wish to file a complaint with the state human resources department alleging favoritism in favor of an employee of a different party, you need to file a written complaint that specifies the name of the person being favored, the person who is allegedly providing the favoritism, and what specific preferential treatment was allegedly provided.
If you are an employee of a private company, you should write an email or letter to human resources or your direct supervisor (if you do not feel comfortable bringing the favoritism directly to the person in charge) that specifies the favoritism as noted above.
Always remember to keep copies of such written communications.
A second step may involve the completion of the company’s internal dispute resolution process.
For example, if your company requires mediation before an arbitration or lawsuit is filed, you need to follow the company procedure to submit a dispute for mediation. For that, you would need to write a communication that includes your name and the name of the person disfavored who favorited you or another specific employee, details about the preferential treatment or job advancement, and, if applicable, a request that the company take corrective action to end the favoritism or limit its negative impact.
Frankly, any allegation of favoritism may implicate the possibility of a hostile work environment. Therefore, it is wise to read the company’s policy on discrimination and harassment. If favoritism is leading to harassment of the disfavored employee by the favored employee, then you should also review the company’s policy on harassment resolution.
Many employers conduct such investigations and resolve them with some kind of mediation or decision that involves discussion and possibly, a transfer of employees and a good faith effort to end the favoritism and its consequences.
Remember, though, that while favoritism is not itself illegal, retaliation following a report of favoritism allegations could lead to legal liability for the company under both federal and state laws.
Preventing Favoritism: Best Practices
To help mitigate favoritism in the workplace, employers must be aware of and proactively address any actual or perceived favoritism between employees. Strategies and best practices include:
- Use a clearly defined performance management system. This system should focus on objective results, while also addressing employee behaviors and competencies, with clearly laid out performance standards. Preferential treatment will likely be reduced when all employees are held to the same standard and are provided with clear guidance on how their performance will be evaluated.
- Develop and implement equal employment policies. Employers should have clear policies in place addressing equal employment and nondiscrimination, as well as processes for reporting concerns to HR, including identifying whom to report to. Employers should review these policies and related processes with employees to ensure that they understand how to properly report concerns that favoritism has occurred.
- Provide regular performance management feedback. Managers should engage regularly with their direct report employees about both the positive and negative aspects of their individual performances. Employees should be appreciative of the regular feedback that provides them with opportunities to improve any areas of concern , and as such, should be less likely to suspect such feedback of having been given only as a reward to their managers’ favorites.
- Foster an open, transparent culture of communication. Eliminating favoritism in the workplace is not only a matter of ensuring equal treatment of workers, but is established through a culture of openness of communication between all employees. This means providing all employees with access to key information and treating all employees with respect under all circumstances.
- Recognize all employees for good work. Employers should encourage their managers to recognize all employees for good work from time to time. Employees should view recognition as meaningful, whether in the form of bonuses, awards, or simply verbal commendations from their managers. These methods help to foster positive relationships among employees and minimize the potential for favoritism based on performance or relationships.
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