Among other things, Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex. In this context, sex means gender, and as pointed out by the Tenth Circuit Court of Appeals last month in an unpublished decision, Title VII cannot be used to sue an employer based on other employees' alleged personal sexual behavior.

In Parker v. Salazar, the plaintiff worked for the Bureau of Land Management. He sent an e-mail to BLM's human resource officer claiming that two married co-workers were engaging in an affair that he found to be morally offensive. After resigning, the plaintiff sued under Title VII, claiming that he had been retaliated against for making the complaint.

The Tenth Circuit affirmed dismissal of the claim on summary judgment. In order to have an actionable Title VII claim, plaintiffs must allege some form of disparate treatment based on gender. Sexual affiliations among employees do not meet this standard, and the plaintiff could not have believed that he was making a complaint based on gender.

This case is similar to several others that have dismissed Title VII lawsuits where employees claim that they were victimized by favoritism shown to a co-worker with whom a manager had developed a personal relationship. In these cases, the alleged favoritism is based on sexual attraction, and not the gender of the complaining plaintiffs. While such office romances may create serious morale and business problems, they do not form grounds for sex discrimination claims by employees exposed to the behavior.