Supervisor Can Be Fired for Dating Subordinate

Nearly one-third of long-term relationships begin at work, so it’s no surprise that Robert, a national sales manager, began dating Melanie, a member of the sales staff. The only problem is that he was her supervisor and the company had a rule against supervisors dating subordinates. According to the company, the rule was put in place to avoid the appearance of favoritism, conflicts of interest, and unprofessional or disruptive conduct in the workplace. The policy required that the supervisor who is in an intimate relationship with a subordinate report that fact to management, so the company could reassign one or both of them. Robert didn’t tell, but someone did, and the company gave the couple the choice of breaking off their relationship or one of them – Robert – would face termination. They didn’t break off the relationship (who honestly expected that they would?) and Robert was fired.

Robert sued the company, claiming its policy violated his right to privacy and trampled on his right to "engage in lawful conduct" outside the workplace under Labor Code 96, subsection (k), a relatively new amendment to the wage claim statute.

The San Diego trial court granted the company’s motion for summary judgment, and dismissed the case. Robert appealed, but the Court of Appeals agreed with the trial judge and sided with the company, both on the privacy issue and the interpretation of Labor Code section 96(k). (Robert Barbee v. Household Automotive Finance Corp., 2003 Cal. Daily Opin. Svc. 10008)

The right to privacy only applies where there is a "reasonable expectation of privacy," and in this case, said the court, the sales manager could not expect his romantic life to be kept private, particularly in light of the clear written policy the company put in place. The company has a right to protect the workplace against conflicts of interest between work-related and family-related obligations; it has the right to minimize favoritism or the appearance of favoritism; and the right, and in some cases the obligation, to prevent family conflicts from affecting the workplace. The court also recognized that relationships between a supervisor and subordinate can involve unwanted sexual behavior that the company has an obligation to prevent.

What about Labor Code section 96(k), which gives the Labor Commissioner the power to recover damages for an employee who is fired for engaging in lawful activity outside the workplace? The court held that the lawful activity referred to in that section includes only those rights granted by Article I, Section I of the California Constitution. It’s only purpose is to give the Labor Commissioner the authority to pursue those rights on behalf of an employee. So, without the "right to privacy" argument, Barbee could not use that Labor Code section to collect from the finance company.

An employer who is concerned about the effects of interoffice dating should have a clear policy aimed at reducing the risks, such as conflicts of interest, favoritism, and harassment claims. In particular, supervisors who get involved with subordinates should be put on notice that it may result in a reassignment or termination, and must be reported to management. Employers should also be careful to enforce the policy fairly and consistently.