Unlawful discrimination occurs when an Employer takes an employment action based upon impermissible classifications (such as gender). So, to answer your question, you would need to show that you were terminated "because" your boss basing his decision either (a) on your gender; (b) the gender of the employee he hired; or, (c) possibly, because he was having a sexual relationship with your coworker. Please note though, the last category is very difficult to establish a claim.
According to EEOC policy:
Not all types of sexual favoritism violate Title VII. It is the Commission's position that Title VII does not prohibit isolated instances of preferential treatment based upon consensual romantic relationships. An isolated instance of favoritism toward a "paramour" (or a spouse, or a friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders. A female charging party who is denied an employment benefit because of such sexual favoritism would not have been treated more favorably had she been a man nor, conversely, was she treated less favorably because she was a woman.
However, the EEOC also takes the position that:
If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors. In these circumstances, a message is implicitly conveyed that the managers view women as "sexual playthings," thereby creating an atmosphere that is demeaning to women. Both men and women who find this offensive can establish a violation if the conduct is "sufficiently severe or pervasive 'to alter the conditions of [their] employment and create an abusive working environment.'"
Managers who engage in widespread sexual favoritism may also communicate a message that the way for women to get ahead in the workplace is by engaging in sexual conduct or that sexual solicitations are a prerequisite to their fair treatment. This can form the basis of an implicit "quid pro quo" harassment claim for female employees, as well as a hostile environment claim for both women and men who find this offensive.
Ryan Finn * 518.213.0115 * Rfinn@hackermurphy.com * Referrals are the highest form of compliment * Hacker Murphy serves clients throughout New York State and always pays referring attorneys a reasonable referral fee in contingency cases
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