William Maner v. Dignity Health, f/k/a Catholic Healthcare West

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
W ILLIAM MANER,
Plaintiff-Appellant,
v.
DIGNITY HEALTH, f/k/a
Catholic Healthcare West,
Defendant-Appellee.
No. 18-17159
D.C. Nos.
2:16-cv-03651-DGC
2:16-cv-04054-DGC
OPINION
On Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted May 7, 2021
Portland, Oregon
Filed August 20, 2021
Before: William A. Fletcher, Carlos T. Bea, and
Michelle T. Friedland, Circuit Judges.
Opinion by Judge Bea

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SUMMARY*
Title VII
Affirming the district court’s award of summary
judgment to an employer in a terminated employee’s Title
VII action alleging unlawful sex discrimination and
retaliation in a case that presented the question whether an
employer who exhibits preferential treatment toward a
supervisor’s sexual or romantic partner discriminates against
other employees because of their sex, the panel held that
discrimination motivated by an employer’s “paramour
preference” is not unlawful sex discrimination against the
complaining employee within the ordinary meaning of Title
VII’s terms.
Affirming summary judgment on the claim of unlawful
sex discrimination, the panel explained that the plaintiff’s
“paramour preference” reading of Title VII fails the test set
forth in Bostock v. Clayton County, 140 S. Ct. 1731 (2020),
for assessing whether an adverse employment action
violated Title VII—whether changing the employee’s sex
would have yielded a different choice by the employer. The
panel noted that the motive behind the adverse employment
action is the supervisor’s special relationship with the
paramour, not any protected characteristics of the disfavored
employees. The panel wrote that the plaintiff’s contention
that “sex” means sexual activity contradicts the
“fundamental canon of statutory construction that the words
of a statute must be read in their context and with a view to
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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their place in the overall statutory scheme.” The panel
disagreed with the plaintiff’s reading of Bostock to bar as
unlawful sex discrimination any effects on the individual
that can be correlated with sex discrimination. The panel
also disagreed with the plaintiff’s assertion that the
“paramour preference” theory of Title VII liability finds
support in an EEOC regulation interpreting the statute to
prohibit sexual harassment in the workplace.
Affirming summary judgment on the claim that the
employer unlawfully terminated the plaintiff in retaliation
for opposing instances of favoritism arising out of the
relationship between the plaintiff’s supervisor and the
supervisor’s romantic partner, the panel did not need to
decide whether it was unreasonable to believe that the
supervisor’s favoritism to his romantic partner violated the
law, because the plaintiff failed to establish any causal
connection between the claimed protected activity and the
termination decision.
COUNSEL
Carolyn A. Kubitschek (argued), Lansner & Kubitschek,
New York, New York; Paul B. Eaglin, Eaglin Law Office,
Syracuse, New York; for Plaintiff-Appellant.
Lindsay J. Fiore (argued) and Stephanie J. Quincy,
Greenberg Traurig LLP, Phoenix, Arizona, for Defendant-
Appellee.

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OPINION
BEA, Circuit Judge:
Title VII of the Civil Rights Act of 1964 prohibits
covered employers from discriminating against any
individual because of that individual’s sex and from
retaliating against those who oppose unlawful employment
practices. See 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). The
main question presented in this case is whether an employer
who exhibits preferential treatment toward a supervisor’s
sexual or romantic partner discriminates against other
employees because of their sex. We hold that discrimination
motivated by an employer’s “paramour preference” is not
unlawful sex discrimination against the complaining
employee within the ordinary public meaning of Title VII’s
terms. We affirm the district court’s award of summary
judgment to the employer on that basis and for the additional
reasons expressed herein.
I. BACKGROUND
William “Bo” Maner worked as a biomedical design
engineer in the obstetric and gynecological laboratory of Dr.
Robert Garfield for several decades.1 Garfield’s lab depends
upon a steady stream of grant awards to fund employee
salaries and performs research with an eye toward publishing
data and developing marketable intellectual property. Maner
contributed to the work of Garfield’s lab by recruiting
1 The material facts in this appeal from summary judgment are
largely undisputed. Where factual disagreement exists, we side with
Maner as the non-moving party. Salisbury v. City of Santa Monica,
998 F.3d 852, 854 n.1 (9th Cir. 2021).

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M ANER V . D IGNITY HEALTH 5
research subjects, analyzing project data, preparing grant
applications, and assisting with patent filings.
From 1999 to 2008, Garfield’s laboratory operated out
of the University of Texas Medical Branch in Galveston,
Texas. Maner’s coworkers included Dr. Yuan Dong, a male
researcher, and Dr. Leili Shi, a female researcher. Maner
learned shortly after joining the lab that Garfield and Shi
were engaged in a long-term romantic relationship that
began as a workplace affair while Garfield was married to
another woman. Garfield and Shi lived together and
occasionally demonstrated physical affection at workplace
events. Garfield brought Shi with him to research
conferences to which other employees were not invited and
conferred upon Shi a greater share of workplace
opportunities related to publications and intellectual
property than Maner felt she should have received.
In January 2008, Garfield decided to relocate the lab to
an installation operated by Dignity Health in Phoenix,
Arizona. Garfield persuaded Dignity Health to extend offers
of employment at the new facility to the existing team.
Maner accepted the offer and prepared to join Garfield,
Dong, and Shi in Phoenix. That April, however, Maner was
arrested at work in Galveston by state and local police for
the alleged aggravated sexual assault of his seven-year-old
daughter. Maner denied the allegations but pleaded guilty to
a lesser included state law offense. Maner moved to Phoenix
while the charges were pending and received several positive
performance reviews and merit pay increases. For example,
Garfield complimented Maner in one review as “solid as a
rock” and thanked him for “[o]verall an outstanding
performance.”
In August 2010, a Texas trial court sentenced Maner to
eight years’ probation, the terms of which required Maner to

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reside within the state of Texas and to check in monthly with
probation officials in Galveston. In November 2010,
Garfield approved a remote work arrangement whereby
Maner would support Garfield’s lab from a satellite office in
Galveston while serving out his probation. Pursuant to this
arrangement, Maner retained his position and promised to
work full time on tasks conducive to independent and remote
completion.
Garfield’s lab soon began to suffer from a decline in the
grant funding used to fund employee salaries and research
projects. In 2010, Garfield recommended Dignity Health
eliminate Dong’s position to alleviate the lab’s funding
shortage. When the employer accepted this
recommendation, Dong allegedly complained to Dignity
Health officials about Garfield’s ongoing romantic
relationship with Shi. Dignity Health responded by
assigning Dr. Ron Lukas to investigate the relationship.
During an interview with Lukas about Garfield and Shi,
Maner raised no concerns about the couple’s relationship or
its impact on other employees. Upon conclusion of the
investigation, Dignity Health reassigned Shi to a different
supervisor on paper but allowed Shi to continue working in
the lab with Garfield.
In August 2011, Garfield submitted a highly negative
review of Maner’s performance since the beginning of the
remote work arrangement. Garfield rated Maner as “Needs
Improvement” across almost every evaluation metric and
noted that although Maner “has helped occasionally on
analysis of data . . . it is not always possible to contact him.”
Garfield recommended Maner “either return to Phoenix
immediately or [that] his position be terminated.” Maner
responded to the performance evaluation in two emails sent
to Dignity Health officials. The first was an email sent to

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Lukas on August 27 (“the Lukas Letter”) that urged Dignity
Health to retain Maner’s remote position because of his
record of positive performance and the potential availability
of new sources of grant funding. The second was a direct
reply to the review on August 29 (“the Review Response”)
that challenged Garfield’s claims, argued the negative
review was prompted by funding concerns, and offered to
take actions to improve his performance.
Dignity Health eliminated Maner’s position on October
1, 2011, citing Maner’s poor performance review and the
lab’s lack of funding. On October 11, Maner protested the
termination in a letter sent to Dignity Health’s Senior Vice
President for Human Resources, Herbert Vallier (“the
Vallier Letter”). In this post-termination letter, Maner
challenged the rationales for his termination as pretextual
and accused “management” of “fabricat[ing]” the negative
performance evaluation, appropriating laboratory funds “in
a nepotistic manner,” “violat[ing] EEOC articles,” and
committing “unfair labor practices.” Vallier responded on
October 17 with a letter agreeing with the termination
decision; Maner received his final paycheck on October 29,
2011.
Maner soon thereafter filed charges against Dignity
Health before the federal Equal Employment Opportunity
Commission (“EEOC”), the administrative agency tasked
with enforcing Title VII’s antidiscrimination provisions.
See 42 U.S.C. § 2000e-4. The EEOC declined to act and
issued a notice that confirmed Maner had exhausted
administrative remedies as required by Title VII and
permitted him to bring suit in federal court. Maner
proceeded to file a complaint in the U.S. District Court for
the District of Arizona. See id. § 2000e-5(e)(1), (f)(1).

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In the operative complaint, Maner brought a Title VII sex
discrimination claim alleging that Dignity Health protected
Shi (a female employee) from the impacts of reduced lab
funding by terminating Maner (a male employee). See id.
§ 2000e-2(a)(1). Maner also brought a Title VII retaliation
claim alleging that Dignity Health terminated him for
protesting Garfield’s favoritism toward Shi at the expense of
other employees. See id. § 2000e-3(a). To remedy these
alleged violations, Maner sought compensatory and punitive
damages, injunctive relief, and attorneys’ fees and costs.
Dignity Health moved for summary judgment on the
grounds that Maner failed to state a cognizable claim of sex
discrimination, failed to establish a prima facie case of sex
discrimination or retaliation, and failed to rebut the
employer’s explanations for the termination with evidence
of pretext. The district court granted the motion and entered
judgment for the employer. See Maner v. Dignity Health,
350 F. Supp. 3d 899 (D. Ariz. 2018).
As to the sex discrimination claim, the district court
determined that Maner complained of discrimination based
not on his sex, but on Garfield’s preference for Shi as a
romantic partner. The court construed the claim as arising
under the “paramour preference” theory of Title VII liability,
which posits that an employer engages in unlawful sex
discrimination whenever a supervisor’s relationship with a
sexual or romantic partner results in an adverse employment
action against another employee (here, against a male
employee because of a female paramour). Id. at 903–04.
The court noted that while our circuit had not yet foreclosed
the availability of “paramour preference” claims under Title
VII, nearly every other circuit and the EEOC had already
rejected the theory as inconsistent with the statute and its
implementing regulations. Id. at 904–05. Relying on these

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M ANER V . D IGNITY HEALTH 9
out-of-circuit authorities, the court held that Maner’s
undisputed evidence of Garfield’s relationship with and
favoritism toward Shi did not establish a sex discrimination
claim under Title VII. Id. at 906.
As to the retaliation claim, the district court concluded
that Maner’s references to “nepotism,” EEOC articles, and
labor law in the Vallier Letter of October 11, 2011, might
reasonably be viewed by a jury as having put Dignity Health
on notice that Maner opposed Garfield’s relationship with
Shi. Id. at 907. Relying on Learned v. City of Bellevue,
860 F.2d 928 (9th Cir. 1988), however, the court held that
Maner failed to establish that he engaged in protected
activity because his complaints in the Vallier Letter did not
oppose an employment practice that “fairly f[e]ll within” the
prohibitions of Title VII. Maner, 350 F. Supp. 3d at 909.
Maner timely appealed and filed a pro se opening brief.
We subsequently appointed pro bono appellate counsel and
requested additional briefing on whether romantic
favoritism constitutes sex discrimination under Title VII.
We have jurisdiction over this appeal from final judgment
pursuant to 28 U.S.C. § 1291.
II. STANDARD OF REVIEW
We review grants of summary judgment de novo and
may affirm on any ground supported by the record. Oyama
v. Univ. of Haw., 813 F.3d 850, 860 (9th Cir. 2015).
Summary judgment is warranted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

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III. DISCUSSION
A. Sex Discrimination Claim
As an initial matter, Maner concedes that the allegations
and evidence in this case relate only to Garfield’s romantic
relationship with Shi and instances of favoritism toward Shi
arising from that relationship. Maner never alleged that
Garfield or anyone else at Dignity Health evinced animus
against male employees, solicited sexual favors in exchange
for job benefits, or created a hostile work environment
through pervasive sexual harassment. Thus, we agree with
the district court that Maner’s sex discrimination claim can
succeed only if Title VII bars employment decisions
motivated by a “paramour preference.”
In this appeal, we must decide whether the district court
erred in adopting the consensus view among the other
circuits and the EEOC that Title VII’s prohibition on
discrimination against any individual because of such
individual’s sex does not prohibit an employer’s favoritism
toward a supervisor’s sexual or romantic partner. Maner
argues that the text of Title VII gives rise to “paramour
preference” claims because the statutory term “sex”
encompasses sexual activity between persons as well as sex
characteristics. Maner also argues that the “paramour
preference” theory finds support in the Supreme Court’s
recent interpretation of Title VII in Bostock v. Clayton
County, 140 S. Ct. 1731 (2020). Finally, Maner argues that
Title VII’s implementing regulations endorse the “paramour
preference” theory as a form of sexual harassment that
impacts third parties. For the following reasons, we reject
these arguments and join the consensus view that an
employer does not violate Title VII’s prohibition on
discrimination because of an individual’s sex by favoring a
supervisor’s sexual or romantic partner over another

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employee; that is, Title VII is not violated by exercising a
“paramour preference” for one employee over another
because of a workplace romance.
1.
Title VII makes it unlawful for a covered employer “to
fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual . . . because
of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). The Supreme Court and
the lower courts have interpreted this language as giving rise
to at least three types of sex discrimination claims: disparate
treatment (adverse employment actions motivated by sex);
quid pro quo sexual harassment (conditioning employment
benefits on submission to sexual advances); and hostile work
environment harassment (unwelcome sexual advances so
severe as to alter the terms and conditions of employment).
See Bostock, 140 S. Ct. at 1741; Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 64 (1986); Brooks v. City of San Mateo,
229 F.3d 917, 923 (9th Cir. 2000). While each claim
involves different elements, all proceed from the
understanding that Title VII prohibits discrimination against
an individual in whole or in part because of that individual’s
“protected characteristic.” See Bostock, 140 S. Ct. at 1739
(“The only statutorily protected characteristic at issue in
today’s cases is ‘sex.’”); Vinson, 477 U.S. at 64 (“Without
question, when a supervisor sexually harasses a subordinate
because of the subordinate’s sex, that supervisor
‘discriminate[s]’ on the basis of sex.”).
The “paramour preference” theory of Title VII liability
on which Maner relies would have us read the term “sex”
broadly enough to encompass sexual activity between
persons. Discrimination “because of . . . sex” includes
adverse employment actions motivated by romantic and

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sexual liaisons, the theory goes, because an employer who
exhibits favoritism toward a supervisor’s paramour over
other employees has discriminated against other employees
“because of” romantic relationships or sexual activity.
As the district court correctly noted, every circuit to
consider the question has rejected the “paramour preference”
reading of Title VII. The leading case is the Second Circuit’s
decision in DeCintio v. Westchester County Medical Center,
807 F.2d 304 (2d Cir. 1986). In DeCintio, seven male
employees alleged that their employer discriminated based
on sex by passing them over for promotion in favor of a
female employee who had an affair with their supervisor. Id.
at 305–06. The court rejected the argument that “sex” as
used in the statute meant “sexual liaisons” and “sexual
attractions.” Id. at 306. Instead, the court interpreted “sex”
in context alongside “race,” “color,” “religion,” and
“national origin,” the “other categories afforded protection
under Title VII,” as a characteristic and not as an activity.
Id. Ultimately, the court held that sex “logically could only
refer to membership in a class delineated by gender” and that
the complaint failed to state a sex discrimination claim under
Title VII because the male plaintiffs “faced exactly the same
predicament as that faced by any woman applicant for the
promotion: No one but [the paramour] could be considered
for the appointment.” Id. at 306, 308.
The Fourth, Fifth, Seventh, Eighth, Tenth, and Eleventh
Circuits have since adopted DeCintio’s holding and rationale
to reject “paramour preference” claims as a standalone
source of sex discrimination liability under Title VII. See
Tenge v. Phillips Modern Ag Co., 446 F.3d 903, 908–10 (8th
Cir. 2006); Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 382
(5th Cir. 2003); Schobert v. Ill. Dep’t of Transp., 304 F.3d
725, 733 (7th Cir. 2002); Womack v. Runyon, 147 F.3d 1298,

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1300 (11th Cir. 1998) (per curiam); Taken v. Okla. Corp.
Comm’n, 125 F.3d 1366, 1369–70 (10th Cir. 1997); Becerra
v. Dalton, 94 F.3d 145, 149–50 (4th Cir. 1996); see also
Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs,
716 F.3d 10, 14 (2d Cir. 2013) (per curiam) (reaffirming
DeCintio, 807 F.2d 304).2
The Eighth and Eleventh Circuits relied in part on a
guidance document in which the EEOC took the position
that “Title VII does not prohibit isolated instances of
preferential treatment based upon consensual romantic
relationships.” See Tenge, 446 F.3d at 908; Womack,
147 F.3d at 1300 (citing Policy Guidance on Employer
Liability Under Title VII for Sexual Favoritism, EEOC
Notice No. 915-048 (Jan. 12, 1990)). The guidance
distinguished “paramour preference” claims from quid pro
quo sexual harassment and hostile work environment claims
recognized by Title VII and the EEOC regulations
promulgated to implement the statute. EEOC Notice No.
915-048 (citing 29 C.F.R. § 1604.11). “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,” the guidance explained,
“since both are disadvantaged for reasons other than their
genders.” Id. (citing, inter alia, DeCintio, 807 F.2d 304).
The district court adopted the holding of these out-of-
circuit authorities after concluding, correctly, that our circuit
has yet to pass definitively on the “paramour preference”
2 The Third and Sixth Circuits have affirmed similar reasoning in
unpublished dispositions. See McDaniels v. Plymouth-Canton Cmty.
Sch., 755 F. App’x. 461, 470 (6th Cir. 2018); Miller v. Aluminum Co. of
Am., 679 F. Supp. 495, 501 (W.D. Pa.), aff’d mem., 856 F.2d 184 (3d
Cir. 1988).

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theory. The closest case on point is Candelore v. Clark
County Sanitation District, 975 F.2d 588 (9th Cir. 1992) (per
curiam), in which the plaintiff alleged that her employer
violated Title VII and its implementing regulations by
treating another employee more favorably because of that
employee’s affair with a supervisor. Id. at 590. We
distinguished between the plaintiff’s favoritism claim and a
hostile work environment claim. Id. Because the plaintiff
failed to allege “benefits or opportunities denied as a result
of discrimination,” however, we affirmed the dismissal of
the complaint without passing on the validity of the
“paramour preference” theory. Id.; see also id. at 592
(Kleinfeld, J., concurring) (“Our decision should not be read
as . . . establishing any doctrine on whether discrimination
on account of a coworker's consensual romantic relationship
with a supervisor violates Title VII.”).3
2.
The question whether employers may be liable under
Title VII for the consequences of favoritism toward a
supervisor’s sexual or romantic partner is squarely presented
for decision in this case. Binding precedent and ordinary
principles of statutory interpretation compel us to agree with
the other circuits and the EEOC that Title VII does not
“prevent employers from favoring employees because of
3 Our circuit has refused to countenance the “paramour preference”
theory of Title VII liability in unpublished decisions issued since
Candelore. See, e.g., Pullela v. Intel Corp., 467 F. App’x 553, 554 (9th
Cir. 2012) (in context of retaliation claim); Knadler v. Furth, 253 F.
App’x 661, 664 (9th Cir. 2007); Oleszko v. State Comp. Ins. Fund, 10 F.
App’x 419, 420 (9th Cir. 2001); Parker v. Otis Elevator Co., 9 F. App’x
615, 617 (9th Cir. 2001) (in context of retaliation claim); cf. Kieffer v.
Tractor Supply Co., 815 F. App’x 142, 143 (9th Cir. 2020) (rejecting
“paramour preference” claim for lack of evidence).

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personal relationships . . . as long as [such favoritism] is not
based on an impermissible classification.” Schobert,
304 F.3d at 733 (citing DeCintio, 807 F.2d at 306). We hold
that an employer who singles out a supervisor’s paramour
for preferential treatment does not discriminate against other
employees “because of [their] . . . sex.” 42 U.S.C. § 2000e-
2(a)(1).
Our analysis of the text of Title VII begins, and pretty
much ends, with the Supreme Court’s decision in Bostock.
In Bostock, the Court interpreted the “ordinary public
meaning” of the phrase “because of . . . sex” to determine
whether employers violated the law by discharging
employees on account of their sexual orientation and gender
identity. 140 S. Ct. at 1738. The Court began by observing
that the “[t]he question isn’t just what ‘sex’ meant, but what
Title VII says about it.” Id. at 1739. Next, the Court
proceeded to derive an all-purpose test for assessing whether
an adverse employment action violated Title VII:
If the employer intentionally relies in part on
an individual employee’s sex when deciding
to discharge the employee—put differently,
if changing the employee’s sex would have
yielded a different choice by the employer—
a statutory violation has occurred.
Id. at 1741. Applying this test, the Court concluded that
discrimination based on sexual orientation and gender
identity is sex discrimination under Title VII. If an employer
fires a male employee “for no reason other than the fact he
is attracted to men, the employer discriminates against him
for traits or actions it tolerates in his female colleague.” Id.
Similarly, if an employer fires an employee who was born
male but now identifies as female, “the employer

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intentionally penalizes a person identified as male at birth
for traits or actions that it tolerates in an employee identified
as female at birth.” Id. In both cases, “the individual
employee’s sex plays an unmistakable and impermissible
role in the discharge decision.” Id. at 1741–42.
Maner’s “paramour preference” reading of Title VII fails
Bostock’s test. To determine whether an employer
discriminated based on sex in violation of Title VII, we ask
“if changing the employee’s sex would have yielded a
different choice by the employer.” Id. at 1741. In the
“paramour preference” scenario, the answer is no. The
employer discriminates in favor of a supervisor’s sexual or
romantic partner and against all other employees because
they are not the favored paramour, no matter the sex of the
paramour or of the complaining employees. Changing the
sex of the complaining employees would not yield a
different choice by the employer because the identity of the
favored paramour would remain the same. The motive
behind the adverse employment action is the supervisor’s
special relationship with the paramour, not any protected
characteristics of the disfavored employees.
Maner’s contention that “sex” means sexual activity also
contradicts the “fundamental canon of statutory construction
that the words of a statute must be read in their context and
with a view to their place in the overall statutory scheme.”
Home Depot USA, Inc. v. Jackson, 139 S. Ct. 1743, 1748
(2019) (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S.
803, 809 (1989)). Statutory language surrounding a word or
phrase with multiple possible meanings “typically
establishes” which meaning controls or “that one of the
possible meanings would cause the provision to clash with
another portion of the statute.” A. Scalia & B. Garner,
Reading Law: The Interpretation of Legal Texts 168 (2012).

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Application of this principle leaves no room for doubt that
Title VII’s prohibition on discrimination because of an
individual’s “sex” does not encompass consensual sexual
activity or romantic relations between persons.
To begin with, Title VII bars discrimination “against any
individual . . . because of such individual’s . . . sex.”
42 U.S.C. § 2000e-2(a)(1) (emphasis added). Use of the
singular possessive “individual’s” means “sex” is something
the individual personally owns or possesses. Cf. Barber v.
Gladden, 327 F.2d 101, 103 (9th Cir. 1964) (use of “the
apostrophe ‘s’, denot[es] possession or ownership” by the
preceding term of those that follow). Ordinary speakers of
English would say an individual possesses “sex” as a
characteristic and that multiple “individuals” can “have sex.”
But no one would use “such individual’s . . . sex” to refer to
sexual activity between persons without converting sex into
an adjective and appending a noun (“sexual activity”) or
creating a compound noun (“sex act”). The United States
Code is replete with examples of the latter formulations
when referring to sexual relations between persons.4 But
statutes using “sex” as a standalone term, many of which
cross-reference Title VII, similarly indicate through context
that “sex” refers to an individual’s characteristics, not an
4 See, e.g., 18 U.S.C. §§ 1737 (barring “sexually related mail
matter”), 2241–44 (punishing “sexual abuse,” “sexual act[s],” and
“sexual conduct”); 2421–27 (punishing coercion, enticement, or
transportation “to engage in . . . sexual activity” or “illicit sexual
conduct”); 34 U.S.C. § 20913 (requiring “sex offender” registration for
sex offenses); cf. FED. R. EVID. 412(a)(2), (b)(1)–(2) (restricting
evidence of “a victim’s sexual predisposition” and “a victim’s sexual
behavior”).

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activity.5 See Reading Law 172–73 (“The presumption of
consistent usage applies also when different sections of an
act or code are at issue. . . . [T]he more connection the cited
statute has with the statute under consideration, the more
plausible the argument becomes.”).
Moreover, Title VII’s bar on sex discrimination appears
within a list of related prohibitions on discrimination
because of “race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2(a)(1). This is a textbook case for
applying the principle of noscitur a sociis, “a word is known
by the company it keeps.” Yates v. United States, 574 U.S.
528, 543 (2015). When a word appears in a list of similar
terms, each term should be read in light of characteristics
shared by the entire list to “avoid ascribing to one word a
meaning so broad that it is inconsistent with its
accompanying words.” Id. (quoting Gustafson v. Alloyd Co.,
513 U.S. 561, 575 (1995)); see also Reading Law 195
(“When several nouns . . . are associated in a context
suggesting that the words have something in common, they
should be assigned a permissible meaning that makes them
similar.”). The only common denominator among “race,
color, religion, sex, or national origin” is that each refers to
a characteristic that signals membership in a protected class.
See DeCintio, 807 F.2d at 306 (concluding “‘[s]ex’ . . .
logically could only refer to membership in a class
delineated by gender”). Just as “such individual’s race”
refers to membership in a class and not participation in an
5 See, e.g., 42 U.S.C. § 2000e(k) (defining “because of sex” to
include discrimination “on the basis of pregnancy, childbirth, or related
medical conditions; and women affected by” the same); 20 U.S.C.
§ 1681(a) (prohibiting discrimination in federally funded education
programs “on the basis of sex” and distinguishing between institutions
that admit “one sex” and “both sexes”).

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M ANER V . D IGNITY HEALTH 19
athletic event, so too does “such individual’s . . . sex” refer
to a characteristic and not sexual activity.
3.
Maner reads the Supreme Court’s decision in Bostock to
bar as unlawful sex discrimination any “effect[s] on an
individual” that can be correlated with sex regardless of
causation. Relying on the Court’s statement that “our focus
should be on individuals, not groups,” 140 S. Ct. at 1740,
Maner argues that Bostock requires the lower courts to find
a Title VII violation whenever an employer’s preferential
treatment for a supervisor’s paramour increases the
statistical chance that male or female employees will be
subject to an adverse employment action. If an employer
protects a supervisor’s female paramour from termination in
a reduction in force, the argument goes, the chance that a
male will be selected for termination increases because
fewer females are available for termination. We disagree
with this reading of Bostock and reject the implication that
the consensus view among the circuits against the “paramour
preference” theory of Title VII liability is inconsistent with
Bostock’s rationale.
Maner’s statistical argument flatly contradicts the
Supreme Court’s emphasis on the individual claiming
discrimination. The gravamen of Bostock’s reasoning is that
courts must focus on the causal relationship between an
individual employee’s sex and the employer’s decision to
take an adverse employment action against that individual.
“So long as the plaintiff’s sex was one but-for cause of that
decision, that is enough to trigger the law.” Id. at 1739.
Because this causal relationship is distinct in every case,
“our focus should be on individuals, not groups.” Id.
at 1740.

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It may be true that, all else being equal, protecting a
female employee from termination in a reduction in force
would make it more likely that a male will be terminated.
But this statistical observation tells us nothing about the
employer’s motivation as to the individual ultimately
selected for termination, who could end up being another
female employee. Without evidence that the employer
selected the employee for termination “because of such
individual’s . . . sex,” we cannot know whether “the
individual employee’s sex play[ed] an unmistakable and
impermissible role in the discharge decision” or whether the
case is one of the “countless others where Title VII has
nothing to say.” Id. at 1741–42.
To be sure, the district court and the circuits which have
previously addressed the “paramour preference” theory of
Title VII liability lacked the benefit of the Supreme Court’s
decision in Bostock. But the Court relied in Bostock on the
same well established Title VII principles that animated the
outcome in those prior decisions. Compare id. at 1743–44
(citing Los Angeles Dep’t of Water & Power v. Manhart,
435 U.S. 702 (1978)), with DeCintio, 807 F.2d at 307 (citing
Manhart, 435 U.S. at 707 n.13). The other circuits
effectively anticipated Bostock’s rationale by concentrating
on the causal relationship between the plaintiff’s sex and the
employer’s adverse employment decision. In DeCintio, for
example, the court rejected the plaintiffs’ sex discrimination
claims because there was no “causal connection” between
the plaintiffs’ sex and the employer’s decision to pass them
over for promotion in favor of a supervisor’s paramour.
807 F.2d at 307. Changing the plaintiffs’ sex would not have
produced a different outcome because they would still have
“faced exactly the same predicament as that faced by any
woman applicant for the promotion.” Id. at 308.

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M ANER V . D IGNITY HEALTH 21
4.
Finally, Maner asserts that the “paramour preference”
theory of Title VII liability finds support in an EEOC
regulation interpreting the statute to prohibit sexual
harassment in the workplace. See 45 Fed. Reg. 74,677 (Nov.
10, 1980), as amended 64 Fed. Reg. 58,333 (Oct. 29, 1999).
29 C.F.R. § 1604.11(g) provides:
Other related practices: Where employment
opportunities or benefits are granted because
of an individual’s submission to the
employer’s sexual advances or requests for
sexual favors, the employer may be held
liable for unlawful sex discrimination against
other persons who were qualified for but
denied that employment opportunity or
benefit.
Maner reads this regulation to impose liability whenever a
qualified employee is denied opportunities extended to a
supervisor’s sexual or romantic partner because, in Maner’s
view, any such relationship entails “submission” by that
partner to sexual advances. We disagree.
Subparts (a) through (f) of the EEOC regulation are
consistent with our case law recognizing two sources of Title
VII liability for sexual harassment: quid pro quo sexual
harassment claims and hostile work environment claims.
See Brooks, 229 F.3d at 923. Employers engage in quid pro
quo sexual harassment when an employee is subject to a
“tangible employment action” and the employer “explicitly
or implicitly condition[s] a job, a job benefit, or the absence
of a job detriment, upon an employee’s acceptance of sexual
conduct.” Craig v. M & O Agencies, Inc., 496 F.3d 1047,
1054 (9th Cir. 2007) (cleaned up); accord 29 C.F.R.

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22 M ANER V . D IGNITY HEALTH
§ 1604.11(a) (harassment occurs when “submission to such
conduct is made either explicitly or implicitly a term or
condition of an individual’s employment”). Relatedly,
employers create a hostile work environment by subjecting
an employee to unwelcome verbal or physical conduct of a
sexual nature that was “sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create
an abusive working environment.” Craig, 496 F.3d at 1055
(cleaned up); accord 29 C.F.R. § 1604.11(a) (harassment
occurs when “conduct has the purpose or effect of . . .
creating an intimidating, hostile, or offensive working
environment”).
Subpart (g) extends the scope of Title VII liability for
quid pro quo harassment in cases where “an individual’s
submission to the employer’s sexual advances or requests for
sexual favors” deprives third parties of job benefits for
which they were otherwise qualified. 29 C.F.R.
§ 1604.11(g) (emphases added). On its own terms, the
regulation does not apply until and unless an employer
makes sexual advances or requests to which an employee
submits. That means Title VII liability cannot attach for the
indirect harms of quid pro quo harassment without evidence
that the employer coerced someone into exchanging the
“quid” of sexual favors for the “quo” of workplace benefits.
Cf. McDonnell v. United States, 136 S. Ct. 2355, 2372
(2016) (explaining the concept of “quid pro quo” exchange
in the context of political corruption). The regulation’s
“submission” requirement indicates such a case “clearly
involves a lack of consent and implies a necessary element
of coercion or harassment” that is absent from consensual
workplace relationships. DeCintio, 807 F.2d at 307–08; see
also Tenge, 446 F.3d at 909 (distinguishing “consensual
sexual conduct with a supervisor” from “claims of coercion
or widespread sexual favoritism”).

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M ANER V . D IGNITY HEALTH 23
The EEOC took the position in the 1990 Policy Guidance
discussed above that the sexual harassment claims covered
by 29 C.F.R. § 1604.11 “may take the form of implicit ‘quid
pro quo’ harassment and/or ‘hostile work environment’
harassment.” EEOC Notice No. 915-048. But the EEOC
determined that “isolated” instances of favoritism toward a
supervisor’s consensual sexual or romantic partner fall
outside the scope of Title VII and its implementing
regulations. Workplace romance crosses the line into
“widespread” sexual harassment under the terms of the
EEOC regulation when, for example, “a message is
implicitly conveyed that the managers view women as
‘sexual playthings’” or “that the way for women to get ahead
in the workplace is by engaging in sexual conduct . . . [as] a
prerequisite to their fair treatment.” Id.
Maner argues that the district court relied on the 1990
Policy Guidance in error because the document is an
interpretive rule that cannot bind private parties. To be sure,
courts may not defer to an agency’s interpretation of its own
regulation unless the regulation is genuinely ambiguous and
the interpretation is reasonable, authoritative, and reflective
of the agency’s substantive expertise. Kisor v. Wilkie, 139 S.
Ct. 2400, 2414–18 (2019). Moreover, “before concluding
that a rule is genuinely ambiguous, a court must exhaust all
the ‘traditional tools’ of construction.” Id. at 2415 (quoting
Chevron USA, Inc. v. NRDC, 467 U.S. 837, 843 n.9 (1984)).
But it is well established that courts may take judicial notice
of an agency’s position to the extent that it carries the “power
to persuade.” Id. at 2414 (quoting Christopher v. SmithKline
Beecham Corp., 567 U.S. 142, 159 (2012)); Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944). The EEOC’s 1990
Policy Guidance reflects the agency’s longstanding and
considered view on the meaning of Title VII and its

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24 M ANER V . D IGNITY HEALTH
implementing regulations, and the district court did not err
in referencing it as part of a broader statutory analysis.
Setting aside the fact that they are not controlling here,
none of the district court authorities on which Maner relies
persuade us that 29 C.F.R. § 1604.11(g) endorses the
extension of Title VII liability to “paramour preference”
claims. In Toscano v. Nimmo, 570 F. Supp. 1197, 1199 (D.
Del. 1983), the court found that an employer coerced an
employee into submitting to sexual advances in exchange for
a promotion which, in turn, was denied to another otherwise
qualified employee. Submission to employer coercion
distinguishes that case from the consensual relationships
involved in “paramour preference” claims. See DeCintio,
807 F.2d at 307. Similarly in Thompson v. Department of
State, 400 F. Supp. 2d 1, 20, 20 n.26 (D.D.C. 2005), the court
held that an agency had the right to obtain the plaintiff’s
personnel files to assess whether the agency could be liable
under Title VII because the plaintiff “submitted to her
supervisor’s sexual advances.” By contrast, the court in
Prowell v. Oregon, No. Civ. 03-80-HA, 2003 WL 23537979,
at *7 (D. Or. Aug. 11, 2003), indeed cited 29 C.F.R.
§ 1604.11(g) to deny a motion to dismiss a claim based on
favoritism toward a supervisor’s romantic partner. But the
court reached this conclusion with precious little analysis
and without considering Title VII’s text or then-existing out-
of-circuit authorities reaching the opposite conclusion.
Here, Maner presented no evidence that Garfield
implicitly or explicitly conditioned Shi’s favorable treatment
on the receipt of sexual favors or that Shi submitted to
coercion by consenting to the couple’s ongoing relationship.
The existence of a consensual relationship between a
supervisor and an employee is insufficient as a matter of law
to establish a claim for sex discrimination under Title VII

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M ANER V . D IGNITY HEALTH 25
and its implementing regulations. See Craig, 496 F.3d at
1054 (requiring the employer “condition” a benefit on the
“acceptance of sexual conduct” (cleaned up)); Brooks,
229 F.3d at 923 (“A quid pro quo claim . . . occurs when a
supervisor demands sexual favors in return for a job
benefit.”).
* * *
Workplace favoritism toward a supervisor’s sexual or
romantic partner is certainly unfair to similarly situated
workers and more than likely harms morale. But “Title VII
is not a ‘general civility code,’” and employment practices
are not unlawful simply because they are unwise. EEOC v.
Prospect Airport Servs., Inc., 621 F.3d 991, 998 (9th Cir.
2010) (quoting Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998)). For the foregoing reasons, we agree with
the district court and the broad consensus of out-of-circuit
authorities that “paramour preference” claims are not
cognizable under Title VII’s prohibition on sex
discrimination.
B. Retaliation Claim
Maner’s retaliation claim asserts that Dignity Health
terminated him in retaliation for opposing instances of
favoritism arising out of the relationship between Garfield
and Shi. Title VII prohibits retaliation against any individual
“because he has opposed any practice made an unlawful
employment practice by this subchapter.” 42 U.S.C.
§ 2000e-3(a). To establish a retaliation claim, the plaintiff
must show that he “engaged in a protected activity; []
suffered an adverse employment action; and [that] there was
a causal connection between the two.” Surrell v. Cal. Water
Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008).

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26 M ANER V . D IGNITY HEALTH
The district court held that Maner failed to establish the
protected activity element of his retaliation claim because
the conduct he opposed did not “fairly fall within the
protection of Title VII.” Maner, 350 F. Supp. 3d. at 909
(citing Learned, 860 F.2d 928). While the conduct alleged
in this case does not violate Title VII, our precedents have
long recognized that the statute protects an employee who
opposes employer conduct in the mistaken but reasonable
belief that the conduct is unlawful. See Learned, 860 F.2d
at 932; EEOC v. Crown Zellerbach Corp., 720 F.2d 1008,
1013 (9th Cir. 1983). We need not decide whether it was
unreasonable to believe Garfield’s favoritism toward Shi
violated the law, however, because we conclude that Maner
failed to establish any causal connection between the
claimed protected activity and the termination decision.
To establish a causal connection between opposition to
employer conduct and a retaliatory action, the plaintiff must
show “the defendant was aware that the plaintiff had
engaged in protected activity.” Raad v. Fairbanks N. Star
Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003).
The record leaves no doubt that Dignity Health eliminated
Maner’s position on October 1, 2011. Logically, only events
taking place before the decision to take an adverse
employment action and known to the employer at the time
could have caused the employer’s decision. Maner protested
the termination in the Vallier Letter of October 11, received
a response agreeing with the decision on October 17, and
received his last paycheck from the employer on October 29.
None of these post-termination events could have played a
causal role in the adverse action here.
The district court concluded, and we agree, that Maner
first voiced opposition to Garfield’s relationship with Shi in
the Vallier Letter of October 11. Maner, 350 F. Supp. 3d. at

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M ANER V . D IGNITY HEALTH 27
907. While the statements in the Vallier Letter lacked detail,
a reasonable jury could conclude that Maner put Dignity
Health on notice of his opposition to workplace favoritism
by referencing “EEOC articles,” “unfair labor practices,”
and the “nepotistic” allocation of funds. However, the
statements in the Vallier Letter could not have motivated
Maner’s termination because they clearly post-date the
October 1 termination decision.
Communications between Maner and Dignity Health
officials prior to October 1 in which Maner could have raised
the issue contain no references to “nepotism” or favoritism.
Maner concedes that he never complained about Garfield’s
relationship with Shi during Lukas’s investigation of the lab
after Dong’s termination. Neither Maner’s Review
Response nor the Lukas Letter referenced sex
discrimination, sexual harassment, preferential treatment for
Shi, or any discrimination or labor laws. These
communications were insufficient to put the employer on
notice of Maner’s opposition to Garfield’s relationship with
Shi. See Cornwell v. Electra Cent. Credit Union, 439 F.3d
1018, 1035 (9th Cir. 2006) (affirming summary judgment
because the protected activity occurred after the challenged
adverse employment action); Raad, 323 F.3d at 1197
(affirming summary judgment because of the lack of
evidence that employers were aware of the prior protected
activity). Because there is no evidence that retaliation
motivated Dignity Health’s termination decision, Maner
failed to establish the “causal connection” element of his
retaliation claim.
IV. CONCLUSION
Maner failed to adduce evidence sufficient to support
Title VII claims for sex discrimination or retaliation. We

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therefore AFFIRM the district court’s award of summary
judgment to Dignity Health.

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