Privacy Issues in the Community College Workplace

The Proksel case relied, in part, on a policy statement put out by the Equal Employment Opportunity Commission (EEOC) in 1990:

Not all types of sexual favoritism violate Title VII. It is the Commission’s position that Title VII does not prohibit isolated instances of preferential treatment based on consensual romantic relationships.

Even when no sexual favoritism exists in a consensual supervisor-subordinate relationships, such relationships can result in other forms of serious liability exposure. There are numerous cases involving claims of harassment brought by the paramour employees themselves, after their consensual relationships with a supervisor ended. For example, in Samson v. Allstate Insurance Co ., an attorney had a consensual romantic relationship with his legal secretary for two years, after which the secretary ended the relationship. 493 After the secretary left the job, she filed a claim against her employer alleging sexual harassment (that her employer made advances to her within the first weeks of her employment and she acquiesced and continued in the relationship out of fear of losing her job) and retaliation (that after she ended the relationship, her employer changed the terms of her employment). Clearly, the potential exists for consensual romantic relationships between supervisors and subordinates to later form the basis for harassment claims. The upshot of these sexual harassment cases is that employers have a very strong interest in learning of and regulating workplace romantic relationships to insure no unlawful harassment develops. As the above cases demonstrate, romantic relationships in the workplace can result in harassment claims by one of the persons in the relationship or by coworkers affected by it. This strong employer interest exists notwithstanding employee claims that they have privacy interests in such relationships. As with other aspects of privacy law, neither the Courts nor the Legislature have delineated “bright line” standards to guide employers in this area. In general, a Court will more likely find an employer’s investigation and response to a workplace relationship legitimate if the employer’s conduct has a strong relationship to the detection and prevention of harassment and if it is narrowly tailored to avoid unnecessary intrusions into private matters. It is more likely that employers will have protection from privacy claims when one party to the relationship complains to management. In that circumstance, an employer’s anti-harassment policy should mandate an investigation or other response. A Court will likely find that the employer’s interests in responding to a harassment claim will supersede privacy interests. Federal (not California law when the alleged harasser is a supervisor) law allows an employer to avoid vicarious liability if the employer proves, among other things, that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior . . . .” 494

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 159