Privacy Issues in the Workplace

5. I NVESTIGATION OF W ORKPLACE R OMANCES AND S EXUAL F AVORITISM An employer’s investigation and regulation of its employees’ workplace, sexual and dating relationships triggers employee privacy rights. The following cases provide some guidance on the contours of these rights. Although many of the cases are from more than twenty years ago, they remain good law. They also illustrate the continued theme of regulating workplace romances – whether regulation and investigation is legitimate turns on the extent to whether the activity in question has a job performance or other workplace nexus.

Shuman v. City of Philadelphia The City dismissed a police officer for refusing to answer investigative questions pertaining to his private sexual activities with a woman who was not a member of the employing agency. The officer alleged the dismissal violated his privacy. The Court agreed, holding that absent a showing that a police officer’s off-duty personal activities had an impact upon his or her job performance, the City’s inquiry into the officer’s private sexual conduct violated the officer’s constitutionally protected privacy rights. 521 Thorne v. City of El Segundo A female clerk typist in the police force applied for a police officer position, but the City denied the application, in part, based on a polygraph test session in which the employee admitted she had suffered a miscarriage and that the father of the child was an officer on the police force. The applicant sued for invasion of privacy among other things. The Ninth Circuit upheld the claim. It 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.” 522 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

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 166