We are closing in on the thirtieth anniversary of the seminal decision that defined sexual harassment in the workplace. In 1986, the United States Supreme Court opined in Meritor Savings Bank v. Vinson that when a boss coerces a subordinate into having sex, it’s against the law—in particular, a violation of Title VII of the Civil Rights Act of 1964. By 2006, twenty years later, AB 1825 established mandatory sexual harassment training for California employees. But, this post is not about unlawful sex or sexual harassment in the workplace, as that topic has been well covered over the past three decades. So, let’s talk about sex in the workplace that is lawful (or at least starts that way) but nonetheless ends up in litigation, and whether a fraternization policy is the employer’s metaphorical shield against a lawsuit.
In a 2013 survey conducted by the Society for Human Resources Management, the number of employers with fraternization policies increased from twenty to forty-two percent since 2005. Ninety-nine percent of those surveyed prohibit romantic relationships between supervisor and subordinate. Even though the supervisor/subordinate relationship could start as consensual, the risk for employers associated with these types of relationships is significant. When one person is in a power position, whether male or female, the subordinate will generally be in a position of vulnerability. Additionally, a supervisor engaging in a consensual relationship with a subordinate risks his or her employment when the subordinate claims the relationship was not consensual. This type of claim happens—frequently.
In the California case Barbee v. Household Automotive Finance Corporation, a national sales manager was terminated from his employment because he was involved in a consensual relationship with a subordinate. The employer’s policy required supervisors to notify management of such relationships so the employer could evaluate whether there was a conflict of interest. The sales manager did not follow the company’s policy. When management learned of the relationship, the sales manager was allowed to end the relationship or resign. He did neither and was terminated. In reaching its conclusion that the sales manager’s claims against the employer failed, the court aptly noted that employers are “legitimately concerned with . . . possible claims of sexual harassment . . . created by romantic relationships between management and non-management.” The court also noted that widely accepted community norms support a finding that supervisors do not have “a privacy right to engage in intimate relationships with their subordinates.”
The fraternization policy in Barbee did not stop the employer from being subject to a lawsuit. In fact, the terminated sales manager sued the company for various causes of action, including invasion of privacy. The policy did, however, ultimately serve as a metaphorical shield, by putting an end to the lawsuit — as Perseus’ shield put an end to Medusa.
As in Barbee, California courts since have consistently found that employers have an interest in prohibiting supervisor/subordinate romantic relationships. However, it is less clear whether employers may restrict relationships in other circumstances, such as those involving relationships between co-workers or between company employees and clients or customers. A policy that strictly prohibits co-workers from dating possibly could violate the employees’ Constitutional right to privacy. Barbee established that there is no reasonable expectation of privacy for supervisor/subordinate romantic relationships; however, the same is not necessarily true for some other types of workplace relationships.
Several California court decisions affirm that individuals, including in the employment context, have a recognized right to privacy in their sexual relationships or habits. Employers, nevertheless, still have options. For example, if co-worker romantic relationships interfere with the employer’s business, the employer may be able to take reasonable action to correct the situation—employers should use caution though in disciplining employees under these circumstances.
When an employer drafts or reviews its fraternization policy, there are some key elements to consider:
- Clearly define what types of subordinate/supervisor relationships are prohibited;
- State what behavior is acceptable in the workplace regarding romantic relationships;
- Describe consequences for violating the policy; and
- Offer employees the opportunity to understand the implications of the policy and how to comply.
Although fraternization policies may be a daunting task to develop, and unpalatable to employees, even a diminutive shield is better than none.