Is It Illegal for the Boss to Play Favorites?

This week I had an interesting e-mail about bosses that play “favorites” with their employees. I’m not qualified to give you legal advice and what is shared in this forum is personal observation and opinion. With that said, when managers create a two-tiered work environment where some employees perceive they are not being treated fairly, it is bad for the department’s morale and dangerous for the company if the supervisor steps over the line into behavior that is illegal. At a high level it is not illegal for the boss to have favorites, even though it creates an unpleasant work environment.

In April 2011, there was an appealed case where the 10^th Circuit Court upheld a ruling that favoritism by a hiring manager was not illegal (Villalpando v. Salazar). In this case, the issue was about a promotion. When the employee didn’t get the job, he sued under Title VII claiming discrimination due to race & national origin. The court agreed there was evidence of a poor working relationship between the manager and the plaintiff and confirmed the plaintiff’s evidence of favoritism toward the candidate selected. Prior to the promotional opportunity opening, the person selected for the position was given additional training and supervisory experiences to overcome weaknesses in his credentials and work history. The plaintiff scored higher on tests for the promotion, but had lower written evaluations by his manager. The lower court found that three other more qualified candidates were also passed over that did not have a claim of race/national origin. The plaintiff appealed. On appeal, the situation was deemed unfair, but not illegal.

There are laws against age discrimination (ADEA) protecting workers 40+ as well as a host of other federal employment laws and acts protecting employees against a wide range of inequality. This case illustrates that the law can only protect you to a certain extent in the workplace. There are many types of unfairness that are legal. It is stressful to work in a situation where you find yourself outside of the “inner circle.” Most people who spend a long time in the workforce experience this and just because it is sandbox mentality it can happen at any age, not just for those 40+. There are several alternatives if you experience an unfair boss and talking with them doesn't work: (1) wait them out—if you were there first, the manager may be on a fast track and working in your area is just one stamp they need on their passport to a job far beyond their capabilities. (Remember the Peter Principle)? (2) transfer to another department—the boss may offer to help you; (3) if waiting them out or working it out does not seem to be an option and you can retire—consider it; (4) get some (career) counseling to deal with the situation—many companies offer an Employee Assistance Plan (EAP) and employees don’t realize the many facets of services they offer. It’s like Las Vegas, what happens at EAP, stays at EAP; (5) if your supervisor’s behavior begins to affect your health (physically, emotionally, mentally)—get the professional help you need and consider your long-term options with a qualified member of your personal support network.