Can You Sue a Company for Showing Favoritism? Litigation Options to Know

What is Favoritism at Work?

Favoritism in the workplace is a term that most employers will laugh at and deny having in their company, because the implication is that they play favorites towards some employees and are not fair towards the rest. It is an obvious statement that a supervisor or manager is going to tend to pay closer attention to his or her best employee, but the favoritism that has been found to be illegal goes well beyond this . The issue of workplace favoritism involves pay differentials, disciplinary measures, and promotions. When an employer promotes one person over others without offering promotions to other employees who have as many or better qualifications, this is not favoritism, it is discrimination, especially if it can be proven that the person who was not promoted was treated differently from others in the base class of the discrimination.

Legal Basis to Sue a Company for Favoritism

The objective analysis and, understanding regarding favoritism is that in it’s nature, favoritism is an inherent part of the human experience. Most individuals can identify when in their own lives they have been both the victim of and contributor to favoritism; however, when on the job, favoritism all too often exists in an unhealthy and disproportionate, lopsided manner, creating instances of harassment at work, bullying at work, coercion, bribery or other forms of workplace harassment if not handled expeditiously and without bias.
A preferential treatment that violates discrimination law is against public policy and is therefore the kind of favoritism you may be able to sue a company for. The most obvious example is sexual harassment – if an employee can prove that he or she was preferred sexually, or otherwise, then that’s generally enough to award damages to the employee. But it is also against public policy to discriminate based on other characteristics, including race, religion, and age.
Joining a company where your supervisor already has favorites can be dangerous to your career. Being subjected to favoritism at work on an ongoing basis, either to be favored or to be unfavored, can create a hostile workplace. In some cases it is possible to file a lawsuit for interference with contractual relations. If favoritism is displayed on behalf of the employer through its agents or managers, it is possible to file a lawsuit for breach of contract.

Discrimination Claims and Favoritism

Preferences among employees can breed resentment and potentially lead to discrimination claims under federal and state laws. When favoritism lines up with protected categories, adverse employment actions against a less-favored employee may raise a red flag for discrimination. It is helpful therefore to know what categories are protected under federal and state laws as the first step in determining whether favoritism is the basis for a discrimination claim. The federal laws prohibiting discrimination provide employees with a right to sue for bias based on race, color, religion, sex, national origin, age (40 or older), genetic information, disability, and retaliation for complaining about discrimination. State anti-discrimination statutes provide additional protections. For example, California law adds 11 protected categories over and above the federal protections including: marital status, sexual orientation, religion, medical conditions, HIV/AIDS status, common-law marriage, denial of family care leave, military and veteran status, status as a victim of domestic violence, sexual assault, and stalking, gender identity and gender expression and genetic characteristics. Florida law protects employees from employment discrimination on the basis of race, color, religion, sex, national origin, age, handicap, and marital status.
Favoritism related to protected categories can manifest itself in discrete instances (e.g., allowing a favored employee to take time off over another employee without disabilities to whom it is more necessary, or giving promotions or other advancement opportunities to those of a certain race and gender). Or it can manifest in circumstances impacting several employees (e.g., unfair scheduling so that the same select group of employees are unable to take time off). The determination of whether favoritism caused discrimination is "an intensely factual one." Carefully scrutinizing the circumstances will help determine whether the violation of rights joined with the favoritism was so severe or pervasive as to give rise to a claim.

Proving Favoritism in Court

When it comes to proving favoritism in court, the burden of proof lies with the plaintiff. Essentially, the plaintiff needs to prove that favoritism has occurred and that it is detrimental either to them or to the company as a whole.
However, attorneys specializing in employment law point out that this is often easier said than done. While what an employer does in the workplace can be difficult to prove, what they say is almost impossible to prove.
For example, someone who is being favored at work is not typically being talked about publicly or auditing their positions quietly. But if that same individual were to have a complaint lodged against them regarding something they said or did, that complaint could then be used as evidence for working conditions for the litigation.
It often becomes a matter of proving that favoritism exists and is a direct result of discrimination. That means demonstrating that the favored person has been systematically given advantages a direct result of their demographic nature.
Also important is that the favoritism is directly connected to the cause of the discrimination and is not a benefit given out to all employees. For example, if a Caucasian employee is promoted into a managerial position that is restricted to people of a certain race, this could be a sign of favoritism if there is written evidence of this policy existing or if it is verbalized in some way.

Possible Results and Remedies

If a lawsuit succeeds in proving that employment discrimination actually took place based on favoritism, a number of remedies are available to the court. These remedies can address the specific harm to the employee who initiated the suit, as well as aim to fix systemic issues within the company and prevent future discrimination from occurring.
One remedy that might be awarded in cases of favoritism is compensation. This matching of harms and losses extends from the punitive damages that can be awarded to the employee who sued to the expenses related to hiring a lawyer and court costs that are often awarded in these cases. While some of these costs are already covered by the employer, a successful lawsuit could lead to additional payments to the suing employee to account for damages not already addressed .
The court may also order the company involved to reinstate the suing employee. While this is another remedy that employers already have to provide, the provision of back pay in cases of wrongful termination can be beneficial for the employee. By ordering the company to provide this payment, the court is allowing the employee to collect any wages that would have been earned had favoritism not taken place. Reinstatement and back pay also have a preventative benefit in that it may prevent the company from engaging in further employment discrimination. Multiple instances of favoritism in a company can lead to lower morale and higher turnover, which can ultimately cost the company money, so the court can motivate companies to change their policies toward favoritism.

Other Ways to Resolve the Situation

One thing to consider before jumping to the conclusion that you can sue a company for favoritism is whether maybe you should consider other options besides litigation. For example, let’s talk about mediation. You could have a third-party mediator bring everyone in for a talk and try to come to a mutually agreeable resolution. This is an inexpensive solution and one that may help both parties keep their favorite employees and your relationship moving forward intact. And, typically the mediator can act as a neutral sounding board for both you and employer complaints against favoritism over time. It could, over time, even change the company culture, making favoritism less prevalent.
Another option is to try and work things out with HR (if the favoriter is in a supervisory role), explaining to HR what favors the other is receiving from the company and why this creates a hostile work environment for you or other employees. Bringing HR on board, especially if you and the other employee are representing different parts of the corporate structure, can produce positive results without the expense and lengthy litigation. If the HR appeal doesn’t work, you might decide to file an internal complaint about favoritism with your supervisor or with someone two levels about you; it really depends on your own position and that of the person being favored. And perhaps you could even be viewed as a whistleblower if you take this route. But be careful: if you file a claim with HR or some similar department, you may have to go through mandatory arbitration.
Perhaps the best option is to do nothing, at least in the beginning. Ask yourself if your case is strong enough for a lawsuit, whether on its own or combined with other rights under state or federal employment laws. Would the company rather settle with you? If they have been giving favoritism to one employee over others and if you have been part of this process yet somehow left out, then maybe they’ll see it your way. Even if they never agree with you, if they tell you as much then you may look at it not as being denied, but as being given clarity. And with that clarity, you’ll know the compensation you’ll likely win if you sue, or whether you want to continue fighting for your rights on an ongoing basis. If you decide you really want to go through with a lawsuit, there is a long list of claims you might be able to make against the company regarding favoritism, such as discrimination, retaliation, denials of promotions, raises, bonuses or other benefits, and also any issues of harassment or favorable treatment for the favored employee.

Talk to an Attorney

The above are merely "general" answers to the questions above, and they are not legal advice. No one, not even the most experienced employment lawyers in the United States knows your personal story. So, consult with seasoned, professional employment lawyers who are either specialists or have substantial expertise in litigation & employment law .
You will then be able to learn exactly what is the realistic chance of prevailing in your individual circumstance. If your chances of winning are slim, you will get useful, specific legal advice on how to serve your interests in employment litigation.