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Helping You Navigate Workplace Issues in California

Can A California Employer Fire Someone For Having A Workplace Romance?


Forbes magazine reports results from a recent survey finding that four out of 10 employees have dated someone at work; 17 percent have done it twice.

But what about those workplace policies banning fraternization or interoffice relationships?  Are they legal? And can you be subject to disciplinary action (or even termination) if your employer find about about your relationship?

At least one California court has held that employers are permitted to prohibit some types of workplace dating relationships. Those sorts of relationships may include ones that could impact morale in the workplace, security, or jeopardize supervision (like dating an employee in a subordinate position, which could lead to unfair treatment). If the relationship goes awry, the subordinate employee may assert a sexual harassment claim and the employer could be liable. As such, California courts have upheld policies requiring a supervisor to bring a consensual intimate relationship with an employee to management’s attention for appropriate action, like transferring one of the employees or reassigning to avoid unfair treatment.

While California Labor Code 96 (k) provides, simply, that an employer cannot discipline an employee for lawful off-duty conduct, an employer is not generally prohibited from taking disciplinary action if an employee is found guilty of engaging in unlawful conduct during his or her own off-duty time. To assert a claim under Labor Code 96(k) for wrongful termination, an employee would have had to assert that a legally recognized constitutional right had been violated, and historically, an interoffice relationship has not been considered a constitutional right under the law.

Ninth Circuit Upholds “Privacy and Intimate Association” Rights of Public Employees

When it comes to public employers–such as the State of California or a municipal government–there may also be certain constitutional restrictions on how an agency can go in policing workplace relationships. Recently the U.S. Ninth Circuit Court of Appeals in San Francisco issued a decision that suggests a public employer may violate an employee’s civil rights if they are disciplined or fired for private sexual conduct. Note that civil rights in this context refers to the Civil Rights Act of 1871–which broadly protects individuals from government action affecting fundamental liberties–rather than Title VII of the Civil Rights Act of 1964, the law commonly associated with employment discrimination.

In this particular case, the plaintiff worked as a police officer for a city in northern California. The department terminated the plaintiff’s employment after an internal investigation revealed she was having an extramarital affair with another police officer. The plaintiff argues this violated her constitutionally protected rights of “privacy and intimate association.”

Although the district court dismissed this claim, the Ninth Circuit held it had merit. The appeals court first noted the chief of police was “inconsistent” in his testimony as to why he fired the plaintiff. During a deposition, the chief said the plaintiff’s affair “was not a factor” in his decision, yet at another point he acknowledged it was “part” of the reason. As the Ninth Circuit explained, if an employment decision is even partially motivated by an intent to violate the employee’s civil rights, it may be grounds for a lawsuit.

As for those intentions, the Ninth Circuit held that the plaintiff’s “extramarital sexual conduct was protected by her rights to privacy and intimate association.” Essentially, a public employee cannot be fired for “private, off-duty sexual behavior” that does not affect “on-the-job performance.” The Ninth Circuit acknowledged that at least two other federal courts have reached a different conclusion on this same issue. Nevertheless, given recent U.S. Supreme Court decisions on “the constitutional right to sexual autonomy,” the Ninth Circuit said it stood behind its ruling here.

Get Advice Regarding Your Employment

When evaluating your particular situation in the workplace, whether you work for a private or public employer is important for evaluation. While you may lack certain protections while working for a  private business in California, those working for a public employer may find different rights.

If you have any questions or concerns about your own workplace’s dating policy and how it may affect your rights, contact a qualified California employment law attorney right away.



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* Cathleen Scott is licensed to practice in Florida only.

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