Can an Employer Fire Only One of Two Employees Having an Affair? #MeToo #TimesUp

March 19, 2018

The #MeToo and #TimesUp movements are changing the landscape in the workplace.  Are the #MeToo and #TimesUp movements having an impact in the legal world concerning employer liability issues in discrimination claims?  Maybe.  

 

Workplace relationships are a fact of life: many people spend more time with work colleagues than they do with their family and friends.  That often places a burden on employers, particularly when relationships sour and end.  However, even an ongoing workplace relationship can cause trouble for employers.  

 

A recent case out of the Ninth Circuit federal court of appeals addressed an interesting issue: when two employees are having an affair, can the employer fire only one of them?  In this case, it was the woman who was fired; the man kept his job.  

 

Ms. Perez was a police officer still within her probationary period when she and a male fellow officer, Shad Begley, who had been with a police department for seven years, began a romantic relationship. Both were married, but separated from their spouses. The male officer’s wife filed a complaint with the police department, alleging that Ms. Perez and her husband were having an affair and engaging in inappropriate sexual conduct while on duty. An internal affairs investigation revealed no evidence of on-duty sexual contact, but revealed that the two made a number of calls and texts to each other while on duty, which “potentially” violated department policy. Ms. Perez was fired; Mr. Begley kept his job.  

 

Perez sued the police department for violating her rights to privacy, free association, and due process, and for sex discrimination because she was fired but her male colleague was not. A federal trial court granted dismissed the case in favor of the police department.  However on appeal, the Ninth Circuit Court of Appeals reversed the dismissal of Ms. Perez's claims for violation of her constitutional rights to privacy and intimate association, stating: “We have long held that the constitutional guarantees of privacy and free association prohibit the State from taking adverse employment action on the basis of private sexual conduct unless it demonstrates that such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation.” (Perez v. City of Roseville (9th Cir., Feb. 9, 2018) 2018 U.S. App. LEXIS 3212.)

 

This case highlights the need for a thorough workplace investigation, and for legal advice with respect to the employer's discretion to take legal action against one or both parties involved in workplace relationships.  Though romantic workplace relationships cannot be stopped, employers can at least limit their liability for dealing with them. 

 

For a copy of the court's opinion, you can copy and paste the link here: 

 

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/09/15-16430.pdf

 

 

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