Privacy Issues in the Workplace

emphasized that an employer’s intrusion into an employee’s private sexual activity must have a workplace nexus to be legitimate. “In the absence of any showing that private, off-duty, personal activities of the type protected by the constitutional guarantees of privacy and free association have an impact upon an applicant's on-the-job performance, and of specific policies with narrow implementing regulations, we hold that reliance on these private non-job-related considerations by the state in rejecting an applicant for employment violates the applicant's protected constitutional interests and cannot be upheld under any level of scrutiny.” 519 Shawgo v. Spradlin A City disciplined male and female police officers for off-duty dating and alleged cohabitation in violation of applicable department regulations. The Chief of Police defended the regulations on the ground that they proscribed conduct which “if brought to the attention of the public, could result in justified unfavorable criticism of that member of the department.” The Fifth Circuit found no infringement of the employees’ privacy rights. It reasoned: “We agree with the district court that, in the present circumstances, the plaintiffs’ right to privacy has not been infringed by the scope of the regulation proscribing, as conduct prejudicial to good order, cohabitation of two police officers, or proscribing a superior officer from sharing an apartment with one of lower rank.” 520 Perez v. City of Roseville A City discharged a former probationary police officer after an internal affairs investigation determined that she had had an off-duty sexual relationship with a fellow officer. The investigation found no evidence of on-duty sexual contact between the officers. Although the investigation found a number of calls or texts between the officers while one or both were on duty, which “potentially” violated Department policy, the Police Chief testified that the calls and texts were not enough to warrant termination. The Ninth Circuit in an opinion authored by Judge Stephen Reinhardt prior to his death found terminating a police officer for engaging in an off-duty, extramarital affair with a co-worker could violate the officer’s right to privacy under the U.S. Constitution. Such termination was said to violate the “constitutional guarantees of privacy and free association” unless the department can demonstrate that “such conduct negatively affects on-the-job performance or violates a constitutional permissible, narrowly tailored regulation.” 521 On May 21, 2019, the Ninth Circuit filed a new opinion and a dissenting opinion, and the opinion and concurring opinion in Perez filed on February 9, 2018 were withdrawn. The Ninth Circuit, in an opinion authored by Judge Sandra Ikuta and Judge A. Wallace Tashima, held that a police department is not “constitutionally prohibited from considering an officer’s off-duty sexual relationship in making a decision to terminate her, when there is specific evidence that the officer engaged

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