U.S. Appeals Court Tells Public Employers to Stay Out of Employee's Bedrooms - Off Duty Sex Between Co-Workers Is Protected By Constitutional Right to Privacy

Category: Blog Posts
Date: Mar 1, 2018 11:08 AM
U.S. Appeals Court Tells Public Employers to Stay Out of Employee's Bedrooms - Off Duty Sex Between Co-Workers Is Protected By Constitutional Right to Privacy

This blog was authored by Megan Lewis.

Earlier this month, in Perez v. City of Roseville, the U.S. Court of Appeals held that terminating a police officer for engaging in an off-duty, extramarital affair with a co-worker could violate the officer’s right to privacy under the U.S. Constitution.

Background Facts

Perez, a probationary police officer, was initially reprimanded after an internal affairs investigation revealed that she had been involved in an off-duty sexual relationship with a fellow officer. (The investigation was initiated by a complaint from the second officer’s wife.) Though the investigation found no evidence of on-duty sexual contact between the two officers, the investigator found a number of calls and texts between them while one or both was on duty, which “potentially” violated Department policy. Perez was reprimanded for “conduct unbecoming” and “unsatisfactory work performance.”

The officer appealed the reprimand and, after her appeal hearing, she was terminated by the Police Chief without explanation. The Chief claimed he made the decision to terminate Perez based on performance issues that arose after the internal affairs investigation that were unrelated to the affair.

The Court of Appeals’ Ruling

The officer filed an action in federal court alleging among other things that her termination violated her constitutional rights to privacy and intimate association because it was impermissibly based in part on management’s disapproval of her private, off-duty sexual conduct. The trial court granted summary judgment for the City, but the Court of Appeals reversed as to the privacy and intimate association claims because Perez had presented sufficient evidence that “[a] reasonable factfinder could conclude that [the Internal Affairs Captain overseeing the investigation] was motivated in part to recommend terminating Perez on the basis of her extramarital affair, and that he was sufficiently involved in Perez’s termination that his motivation affected the decisionmaking process.” Perez now has an opportunity to prove her allegations at a trial.

The appellate court stated it has “long held” that public employers must take care not to “encroach excessively or unnecessarily upon the areas of private life,” or to “eliminate the development of ordinary human emotions from the workplace...unless such development is incompatible with the proper performance of one’s official duties.” Therefore, the Court held, terminating a police officer for private, off-duty sexual conduct violates the “constitutional guarantees of privacy and free association” unless the department can demonstrate that “such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation.”

What does this mean for your agency?

The Court viewed the case as addressing “how much control the government can force individuals to cede over their private lives in exchange for the privilege of serving the public by means of government employment.” The answer seems to be not much (at least in terms of off-duty sexual conduct) unless the conduct negatively impacts the employee’s performance or violates a legitimate policy.

The majority opinion was authored by Judge Stephen Reinhardt with full agreement from a Montana federal court judge sitting temporarily with the Court of Appeals. Judge A. Wallace Tashima issued a strongly worded concurrence that also included major disagreements with Reinhardt. Whether either side seeks review by the U.S. Supreme Court remains to be seen. However, the bottom line is that this decision was not a final victory for Perez. The case was returned to the trial court in Sacramento where Perez will need to prove at trial that the true reason for her termination was her managers’ personal disapproval of her off duty conduct. As a probationary employee, she was subject to termination for any reason, or indeed no reason, as long as the reason was not an illegal one.

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