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“(When) when Brad was away, I was the best thing in the world. I did everything correctly. (…) But when Brad was there, I couldn’t do anything right.

This is a testimony from a recent case, Starling v. General Motors, LLCin the Southern District of Mississippi, where the plaintiff alleged that his supervisor “favored” his co-worker Brad. The colleagues were long-time colleagues and got along well. But according to the complainant, even Brad admitted that he was the favorite of the two men.

This raises an interesting question: Is it illegal for a supervisor to favor one employee over another?

Favoring an employee because of their good performance is perfectly legal

Supervisors play favorites all the time. A manager may assign a difficult project to his most capable employee or assign the most profitable account to his best salesperson.

No federal or state law prohibits performance-based favoritism in the workplace. The general principle is this: if you perform well, you should be rewarded.

Favoring an employee because of a protected characteristic is illegal

The employee in Starling alleged that he complained to upper management that his supervisor was treating Brad more favorably. However, his lawsuit added an additional accusation: that the supervisor favored Brad over the plaintiff because Brad is white and the plaintiff is black. Favoritism based on a protected characteristic, such as an employee’s race, gender, or age, is illegal.

Supervisors must be very transparent about the reasons for their decisions and must document them. Employees do not need to present evidence of discrimination to file a lawsuit. Instead, all it takes is for an employee perceive that they are victims of discrimination. In fact, the plaintiff in Starling testified that the supervisor “treated him differently from his peers” because, according to him, the manager refused to address their behavioral problems.

So what should an employer do when an employee has this perception?

Investigate complaints of employee favoritism

It is much less expensive to handle employee complaints internally than to go through the court system. Employers should investigate employee complaints about favoritism just as they would investigate harassment, discrimination, unethical conduct or any violation of workplace policies. The goal is to ensure that a supervisor does not, in fact, favor an employee for an illegal reason and to address an employee’s perception of favoritism so that it does not escalate into legal action.

The investigation must take into account the following elements:

1. Is there favoritism? If so, why does the supervisor favor one employee over another? Is the supervisor’s reasoning lawful or is there implicit and illegal bias at play?
2. Does this also impact other employees? What do other employees think of the supervisor’s decisions or the employee’s perceptions? Are policies involved, and are they fair and properly implemented?
3. Does the employee have the impression that the favoritism is based on an illegal reason, such as discrimination? If so, how will we respond to this perception? Can we be more transparent? Should we address performance issues with the employee?
4. Do we need to take corrective action to address the supervisor’s actions?

What about nepotism?

Nepotism is a form of favoritism in which a supervisor favors an employee because of a family relationship with that employee. In Starlingthe plaintiff also alleged that the supervisor replaced him with his own son.

Even if it is legal to favor a family member, the same concerns about perceived discrimination can arise. The plaintiff, an employee protected by the Age Discrimination in Employment Act, also filed a claim of age discrimination against General Motors because the supervisor’s son was a young man “just out of the university.”

The reason given by the supervisor for replacing the complainant with his son was legal: it is legal to hire and favor a family member. However, because of their age difference, the manager’s decision laid the groundwork for an age-based claim based on the perception that he was seeking to replace an older worker with a younger worker.

Ultimately, the district court denied General Motors’ motion for summary judgment, and as of publication, the case is proceeding to a jury trial.

Takeaways

• Legal or illegal favoritism: Favoritism is lawful when it is based on a legitimate reason, such as favoring a more successful artist. Favoritism is illegal when an employee is favored for an illegal reason, such as their age, gender, or race.
• Investigating allegations of favoritism: Employers should investigate employee favoritism complaints in the same way they would other workplace complaints. The goal is to address any internal wrongs if they occur and attempt to address employee perceptions of discrimination or injustice.
• Document, document, document: Document performance issues, complaints, and decisions such as reasons for hiring, demotion, promotion, project assignment, and termination.
• Train supervisors: Train supervisors on the importance of consistency and transparency in decision-making.
• Legal advisor: Do not hesitate to consult an employment counselor to help you assess the risks and manage a work situation involving favoritism.