Privacy Issues in the Workplace

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 . . . .” 517

4. A NTI -F RATERNIZATION P OLICIES

Policies prohibiting “fraternization” or dating between supervisory employees and their subordinates are not unconstitutional or illegal per se, and employers may be able to demonstrate legitimate business reasons for prohibiting dating or sexual relationships between supervisory employees and their subordinates. However, it would likely be more difficult for an employer to prove that it had a legitimate business interest in prohibiting relationships between employees of equal status than between supervisory/subordinate employees.

Barbee v. Household Automotive Finance Corp. A California appellate court upheld a “conflict of interest” policy, that stated in part, that a supervisor involved in a consensual intimate relationship with an employee within that supervisor’s direct or indirect area of responsibility, must bring the relationship to management’s attention for appropriate action, including reassignment to avoid a conflict of interest. 518 A supervisory employee who had been given a choice of either terminating a romantic relation with a subordinate or resigning, challenged the policy. The California Court of

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