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May/June 2006
Municipal Lawyer
By Scott Tiedemann
and Jennifer Rosner
As
printed in the
May/June 2006 issue
of Municipal Lawyer.
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THE NEW (AND IMPROVED) DATING GAME:
EMPLOYERS ENDEAVOR TO CHANGE THE RULES TO LIMIT LIABILITY
The stakes of the dating game, at least the
popular workplace version, are greater than they have ever
been before. While love often flourishes at work, liability
lurks. Consequently, employers are increasingly interested in
regulating workplace romances in fearing that such
relationships are fertile sources of liability claims.
However, employers who want to shield themselves from
liability claims for sexual harassment by regulating workplace
romances must be careful to balance the rights of their
employees in the process. This article briefly identifies the
competing interests at stake and offers guidance for public
employers considering regulating inter-office dating.
The Rights of Public Employees
The Right to Privacy
An employer’s regulation of its employees’
dating/sexual relationships triggers employee privacy rights
under state and federal laws. For example, in Shuman v. City
of Philadelphia et. al., [i]
a police officer was dismissed for refusal to answer
investigative questions pertaining to his private sexual
activities with a woman who was not a member of the employing
agency. The officer alleged that his dismissal violated his
right to privacy. In analyzing the case, the district court
stated that “the kinds of [privacy] interests protected have
never been completely and exhaustively articulated.” Citing
Roe v. Wade,[ii]
the district court acknowledged that the “kinds of rights
protected have related primarily to personal decisions
concerning “marriage,…procreation,… contraception,… family
relationships, and child rearing and education.” However, the
court held that there are other matters that fall within a
protected zone of privacy “simply because they are private;
‘that is, (they do) not adversely affect persons beyond the
actor, and hence (are) none of their business.’”[iii]
The court therefore held that, absent a showing that the
officer’s off-duty personal activities have an impact upon his
or her job performance, inquiry into a police officer’s
private life and sexual behavior violate his or her
constitutionally protected right to privacy.[iv]
Similarly, the Ninth Circuit Court of Appeals
held that an employer violated the rights of a female
applicant for a police officer position when she was asked on
a polygraph about a miscarriage she had suffered and who the
father of the child was. [v]
The applicant revealed that the father was actually a married
officer still with the police department and was then
questioned about possible relationships with other department
personnel. The Ninth Circuit, in ruling for the applicant,
stated that, “[i]n the absence of any showing that private,
off-duty, personal activities of the type protected by the
constitutional guarantees of privacy and free association have
an impact upon an applicant's on-the-job performance, and of
specific policies with narrow implementing regulations, we
hold that reliance on these private non-job-related
considerations by the state in rejecting an applicant for
employment violates the applicant's protected constitutional
interests and cannot be upheld under any level of scrutiny.”[vi]
However, other decisions demonstrate that an
employer’s regulation of workplace romances can withstand a
privacy challenge if the regulation focuses on the job-related
impacts of workplace romances. In Shwago v. Spradlin, [vii]
for instance, two police officers sued their former employer
for disciplining them for dating/cohabiting in violation of
employer regulations. The Fifth Circuit concluded that the
regulations did not offend the plaintiffs’ privacy rights.
“We agree with the district court that, in the present
circumstances, the plaintiffs' right to privacy has not been
infringed by the scope of the regulation proscribing, as
conduct prejudicial to good order, cohabitation of two police
officers, or proscribing a superior officer from sharing an
apartment with one of lower rank.”[viii]
Likewise, in Wieland v. City of Arnold, [ix]
the district court stated that it was “uncomfortable
announcing a new, general rule that all dating relationships
are Constitutionally protected, especially when that rule is
advocated by a government employee who works in the sensitive
area of law enforcement.” The court held that although the
plaintiff’s relationship with a convicted felon did not impact
his job performance, it was not “unreasonable to assume a very
likelihood that it could affect the chain of command as well
as the public image of the department.”
The Freedom of Intimate Association
Employer regulation of workplace romances also
implicate employees’ associational rights under the First
Amendment and Due Process Clause of the Fourteenth Amendment.
In Roberts v. United States Jaycees, the United States Supreme
Court “concluded that choices to enter into and maintain
certain intimate human relationships must be secured against
undue intrusion by the State because of the role of such
relationships in safeguarding the individual freedom that is
central to our constitutional scheme.” [x]
Therefore, in addition to marriage, courts have recognized
both personal friendships and non- marital romantic
relationships as the types of “highly personal relationships”
within the ambit of intimate associations contemplated in
Roberts.[xi]
In Anderson v. La Vergne, a police officer sued
his employer alleging that the police chief’s order
prohibiting him from dating a higher- ranging civilian
employee of the police department violated his freedom of
intimate association right under the First and Fourteenth
Amendment. [xii]
The Sixth Circuit stated that heightened scrutiny review will
apply when an employer’s regulation constitutes a direct and
substantial interference with an employee’s intimate
associations. As one court explained, a direct and
substantial interference only occurs “where a large portion of
those affected by the rule are absolutely or largely prevented
from [forming intimate associations], or where those affected
by the rule are absolutely or largely prevented from [forming
intimate associations] with a large portion of the otherwise
eligible population of] people with whom they could form
intimate associations].”[xiii]
However, in Anderson, the Court of Appeals
determined that the Plaintiff continued to enjoy the ability
to form intimate associations with anyone other than fellow
police department employees of different rank. Therefore, the
Court held that the employer’s policy was only subject to
rational basis review. [xiv]
The Court further held that the employer’s regulation
satisfied rational basis review because the regulation was
rationally related to a legitimate government interest in
avoiding sexual harassment suits. The Court noted that “such
preventative policies are common among municipal employees.”
A similar decision was reached in another Sixth
Circuit case in which a county employee sued her employer
after she was terminated for becoming engaged to an attorney
who was married to another county employee. [xv]
The county’s reason for the termination was that it was
unacceptably disruptive to the workplace for a woman employed
in the office of one of the county’s courts to be openly and
“deeply involved in a romantic relationship with a man still
married to a woman employed in the other county court down the
hall…”[xvi]
The Court determined that the employer’s action did not have a
direct and substantial influence on Plaintiff’s right to form
intimate associations, and that Plaintiff’s termination did
not bar her from seeking employment in any other sector of
society. Therefore, in applying rational basis review, the
court found that the employer had a plausible policy reason
for the decision and upheld the employer’s decision to
terminate Plaintiff.[xvii]
Hence, while courts recognize a limited right
of employees to form intimate associations in the workplace,
courts have also upheld the right of employers to regulate
those relationships when the regulations are rationally
related to legitimate business interests.
State Labor Laws
Employers must also be wary of state statutes
which may impact their ability to regulate workplace
romances. Several states have enacted statutes prohibiting
employers from taking adverse employment action against
employees for engaging in lawful off duty- conduct. For
instance, New York State Labor Law section 201-d prohibits an
employer from refusing to hire, discharge or otherwise
discriminate against an individual because of “legal
recreational activities outside work hours off the employer’s
premises.” [xviii]
At present, New York courts appear to be split as to whether
dating constitutes a protected “recreational activity” as
defined in Section 201-d.[xix]
Similarly, Colorado makes it an unfair
employment practice to discriminate against employees for
engaging in “lawful activities,” either outside of the office
or while working, [xx]
and North Dakota makes it unlawful to hire or fire an employee
for engaging in a “lawful activity outside work” that does not
interfere with the employer’s business interests.[xxi]
At the time of writing this article, there were
no cases where plaintiffs have successfully used these laws to
attack the application of an employer fraternization policy to
supervisor- subordinate romances. Nonetheless, employers
should take state labor laws into account in formulating
policies which seek to regulate workplace romances.
The Rights of Employers to Regulate
Dating in the Workplace
In spite of the employee rights discussed
above, courts have upheld the right of employers to regulate
workplace romances. Workplace romances can create a plethora
of problems from lovers’ squabbles, to lower morale to
dereliction of duty. Of course, the concerns are greatest
when the relationship is between a supervisor and a
subordinate. However, concerns also exist when the
relationship is between co-workers. In light of these
problems, courts have proven sympathetic to reasonable
employer regulations which are motivated by employer’s
legitimate business interests.
For instance, the California Court of Appeal
previously upheld a “conflict of interest” policy which
required a supervisor to inform management whenever a
supervisor was involved in a consensual intimate relationship
with an employee within the supervisor’s direct or indirect
area of responsibility. [xxii]
In upholding the policy, the court noted that employers have
legitimate interests in "avoiding conflicts of interest
between work-related and family-related obligations; reducing
favoritism or even the appearance of favoritism; [and]
preventing family conflicts from affecting the workplace."[xxiii]
Therefore, the Court of Appeal held that the plaintiff had no
reasonable expectation of privacy in pursing an intimate
relationship with a subordinate. The court further noted that
managerial-subordinate relationships present issues of
potential sexual harassment.[xxiv]
Moreover, as hinted in the introduction of this
article, employers now have reason to be concerned about the
impacts of workplace dating on those other than the persons
directly involved in the dating relationship. In Miller v.
Department of Corrections, [xxv]
the California Supreme Court held that an employee who was not
the direct recipient of her supervisor’s sexual advances could
nonetheless establish an actionable claim under California’s
Fair Employment and Housing Act (a collection of statutes
offering employee protections similar to Title VII and the
Americans with Disabilities Act) for sexual harassment based
upon widespread sexual favoritism shown by her supervisor.
In Miller, the named plaintiff learned that the
chief deputy warden of the facility where she worked was
having sexual affairs with his secretary, the associate
warden, and third employee. The plaintiff complained to the
warden and the associate warden was subsequently transferred
to another facility where he eventually became the warden.
Subsequently, the plaintiff was transferred to the same
facility.
The warden’s former secretary, with whom he was
having an affair, applied for a promotion and the plaintiff
was a member of the interview panel for the position.
Although the interview panel did not recommend the secretary
for the promotion, she was selected anyway.
Thereafter, the plaintiff competed for a
promotion herself with third woman with whom the warden was
having an affair. Although the plaintiff had a higher rank,
superior education and greater experience than the warden’s
paramour, the plaintiff was passed over for the promotion.
When the same two women later competed for yet another
promotion, the plaintiff was passed over again in favor of the
warden’s lover, causing employees to make comments like,
"’what do I have to do? ‘F’ my way to the top?’"
Based upon the above facts, as well as other
sordid details to lengthy to recount here, the California
Supreme Court held that an employee may establish an
actionable claim of sexual harassment under California’s Fair
Employment and Housing Act by demonstrating widespread sexual
favoritism that was severe or pervasive enough to alter his or
her working conditions and create a hostile work environment. [xxvi]
Miller aside, other courts have held such
sexual favoritism actionable as gender discrimination under
Title VII. In King v. Palmer, [xxvii]
for example, the court held that a prima facie case of sex
discrimination existed where a promotion sought by plaintiff,
a nurse, was given to another nurse who had a sexual
relationship with the doctor who promoted her. The court held
that the “employer may be held liable for unlawful sexual
discrimination against other persons who were qualified for
but denied employment opportunity or benefit.” And, in
Toscano v. Nimmo,[xxviii]
the court stated that “sexual harassment in the context of
employment can form the basis for a Title VII claim” and held
the employer liable where the supervisor promoted a
subordinate employee with whom he was having an affair over
the plaintiff. Thus, employers have increasing cause to be
concerned about sexual harassment claims by employees who feel
that their co- workers are receiving special treatment by
their significant others/supervisors.
Effective Anti- Fraternization/Dating
Policies
Growing numbers of employers have decided to
adopt prophylactic “dating” policies in an attempt to shield
themselves from litigation and potential liability. For
example, some employers prohibit supervisors from dating their
subordinates on the theory that they will reduce their
exposure to quid pro quo harassment claims. Other employers
require their employees to sign consent forms when they enter
into romantic relationships with co-workers, hoping that they
will have documentation to defend themselves from liability if
a claim against them is later brought as a result of the
relationship.
The cases referenced above support an employers
right to institute such policies so long as they strike an
appropriate balance between employees’ rights to
privacy/association and the employer’s legitimate interests in
preventing sexual harassment, avoiding or minimizing
litigation and liability, and promoting a positive and
conflict- free work environment with high morale and maximum
productivity. An employer should put its policy in writing
and, in the policy itself, articulate its business related
reasons for instituting the policy. For example, a policy
might state: “Public trust, safety and City morale require
that employees avoid relationships which may negatively impact
the efficient operation of the City. In order to promote
efficient operation of the City and to avoid formation of
cliques and factions, claims of sexual harassment and gender
based discrimination, and the blurring of professional and
personal responsibilities and relationships in the workplace,
romantic and/or sexual relationships or dating between
co-employees in the same Department are prohibited.”
It is also critical for an employer to
specifically define the types of relationships that are
prohibited. Employees might easily skirt legitimate
regulations, for instance, by denying that they are involved
in “dating relationships” asserting instead that they are
“just having sex.” Thus, an employer may consider carefully
defining the type of relationship being prohibited in the
following way: “A ‘romantic and/or sexual relationship’ exists
when two City employees become personally involved with each
other to the point that there is dating, exchange of personal
affection, emotional attachment, any form of sexual or
physical intimacy and/or cohabitation.”
Of course, each employer has different needs
and operates under different circumstances, let alone
different state and local laws. Therefore, employers are
discouraged from adopting boilerplate policies regulating
workplace romances. Any policy which is established must be
tailored to the needs and circumstances of the individual
employer.
Importantly, employers must ensure that their
dating/anti-fraternization policies are enforced consistently
and in a gender- neutral manner. Failure to do so may itself
create liability for an employer. In Zentiska v. Pooler Motel
Ltd., [xxix]
an employer laid off the female plaintiff for dating a male
supervisor in violation of company policy. Yet, when another
male supervisor dated and then married a female employee, no
adverse action was taken. Thus, the court held the employer
liable for sex discrimination due to the fact that the anti-
fraternization policy was applied unevenly.
Also, supervisors must be trained regarding
appropriate enforcement of anti-fraternization policies of the
nature described in this article. In particular, supervisors
should be trained regarding the timing and extent of
appropriate inquiries regarding an employee’s dating/sexual
relationships. A well meaning supervisor might nevertheless
create liability through clumsy inquiries which violate an
employee’s right to privacy.
Conclusion
Provided that an employer carefully balances
its legitimate interests with its employees’ reasonable
expectations of privacy, it is possible (and even necessary)
to adopt policies restricting workplace romances. These
policies, when reasonably and consistently enforced, can help
limit employer exposure to harassment claims. The only prizes
to be won by an employer when the dating game is played in the
workplace are booby prizes.
[i]
470 F. Supp. 449 (1979).
[ii]
410 U.S. 113 (1973).
[iii]
Id. at 458-459.
[Citing Ravin v. State, 537 P.3d 494 (Alaska
1975).]
[v]
Thorne v. City of El Segundo, 726 F.2d 459 (1983).
[vii]
701 F.2d 470, 482-83 (5th Cir. 1983).
[ix]
100
F. Supp. 2d 984, 988 (E.D. Mo. 2000).
[x]
468 U.S. 609, 617-618 (1984).
[xi]
500 F.Supp. 867, 868 (W.D. Pa. 1980).
[xii]
Anderson v. City of LaVergne, supra, 371 F.3d 879.
[xiii]
352 F.3d 1030, 1040 (6th Cir. 2003).
[xiv]
Anderson, supra, 371 F.3d 879 at 882.
[xv]
Beecham v. Henderson County 422 F.3d 372 (6th Cir. 2005).
[xix]
See
McCavitt v. Swiss Reinsurance America Corp. 237
F.3d 166 (2nd Cir. 2000).
[xx]
Colo. Rev. Stat. Ann. Section
24-34-402.5.
[xxi]
N.D. Cent. Code section 14-02.4-.8.
[xxii]
Barbee v. Household Automotive Finance Corp., 113
Cal.App.4th 525 (2003).
[xxv]
36 Cal.4th 446 (2005).
[xxvii]
598 FSupp. 65, 67 (D.D.C.
1984), (rev’d on other grounds 778 F.2d 878 (D.C.
Cir. 1985).
[xxviii]
570 F.Supp. 1197, 1199-1203 (D. Del. 1983).
[xxix]
708 F.Supp. 1321, 1322-25 (S.D. Ga. 1988).
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