When romance leads to a reprimand - Westfair Communications

Matters of the heart can and do have real ramifications for the workplace, but they can be as difficult to define as love itself.

The Supreme Court recently ruled 8-0 that the fiancÃ© of a fired worker possessed protections against retaliation, in his case getting fired. In so ruling, however, the justices acknowledged the broad swath of human relationships from family member to “mere acquaintance” and said there must be room for individual circumstances to be heard.

In this case, a female engineer at a steel factory filed sex-discrimination charges against the company. Three weeks later, her fiancÃ© was fired by the same company.

The Supreme Court ruled that the male”™s relationship with the fired female who had filed the sex-discrimination claim made him eligible for protection under anti-retaliation provisions of federal civil rights law.

Those civil rights clauses bar employers from retaliating against workers who allege workplace violations.

In response to written questions about the case, Jonathan B. Orleans, partner in the labor and employment section and litigation department of Pullman & Comley L.L.C., and who is admitted to practice in both Connecticut and New York, said, “The fact that the decision in Thompson vs. North American Stainless was unanimous is probably a signal that it wasn”™t a hard case and doesn”™t break new ground. Even a Supreme Court as ideologically divided as the current one didn”™t disagree on the correct result.”

As for the unanimity, said Orleans: “Actually, a number of commentators have noted that the Roberts court issues a high proportion of unanimous decisions. Sometimes unanimity is achieved by deciding cases on very narrow grounds, so their precedential effect is limited. But it certainly appears that this court is unanimous in taking a broad view of the protection provided to employees by the anti-retaliation provisions of our employment discrimination laws.”

Line-drawing may be necessary

Does this open companies up to a “walking on eggshells” scenario where, in effect, to discipline one worker is to refrain from disciplining another?

“It”™s easy to see that an employee who complains that she has been a victim of discrimination and is then fired will have a claim for retaliation if she can show that she was fired for making her complaint,” Orleans said. “Similarly, it”™s easy to see that an employee who complains or reports that someone else has been a victim of discrimination, and is then fired, will have a claim for retaliation if he can show that he was fired for making the complaint or report.

“Employers should make decisions about employees ”“ whether to hire, whether to discipline, whether to promote, whether to discharge ”“ on each employee”™s own merits. This decision simply says that an employer who fires Employee A because of his relationship to Employee B, who made a discrimination complaint, may be sued by Employee A for retaliation, even though the retaliation was actually directed against Employee B and Employee A made no complaint or report.

“The court reasoned that the employer actually intended to harm Employee B by firing Employee A, so it was no stretch to characterize the firing as retaliatory. If the employer can show that a discharge was motivated by the performance of the fired employee, or other factors unrelated to the discrimination complaint brought by the other employee, the employer will not be liable. (Note that in Thompson, the employee has yet to prove that his discharge was actually retaliatory. The question before the court was whether he should even have the opportunity to do so; that is, would he be entitled to damages if he can prove he was discharged to get back at his fiancÃ©e. The court said “yes.”)

“I don”™t see a major ”˜walking on eggshells”™ problem here, but there will be some line-drawing necessary in future cases. The court says that retaliation claims may be brought by persons within the ”˜zone of interests”™ that the anti-retaliation statutes seek to protect. A fiancÃ©e is within the ”˜zone,”™ but what about a good friend? How about a golfing buddy? It seems likely that future decisions will relate this issue to the employer”™s motivation for the discharge; that is, if the firing decision doesn”™t stand on its own merits, but was made because another employee complained about discrimination of some kind, the person fired will have a right to sue for retaliation.”

A familiar lesson for employers

What about discouraging fraternizing among employees.Â Is this legally enforceable?

Said Orleans: “Non-fraternization policies are legally enforceable provided that they are not implemented in a discriminatory manner (for example, when two employees get involved in a relationship it shouldn”™t always be the woman who is discharged or transferred), but may have more downside than upside. They are difficult to enforce as a practical matter, and can damage employee morale and divert focus away from productive work. Employees may feel that the employer is unjustifiably interfering with their right to associate with whom they wish. It is better, in my view, to maintain a clear and consistently enforced policy against sexual and other forms of harassment, and to deal promptly and sensitively with situations where a relationship (or former relationship) interferes with work performance.

“The lesson here for employers is a familiar one ”“ before taking action against any employee it is essential to have thorough documentation or other evidence that the action is taken due to the employee”™s performance, economic necessity, or some other reason legitimately related to the needs of the business, and not for a discriminatory or retaliatory reason.”

Brendan O”™Rourke, principal of O”™Rourke & Associates L.L.C. in New Canaan, Conn., and a past president of the New Canaan Bar Association, in written response to the issues raised by the decision, said, “There is still a gray area as to whether a company can ban consensual relationships among their employees. There are some that claim that a broad ban on such relationships may be unlawful, however, the jurisprudence (case law) in this area is still open.

“Generally, relationships that are consensual between supervisor and subordinates are the most problematic because of concerns of the potential for favoritism and tainting the work environment. Of course, non-consensual relationships (kind of an oxymoron ”“ really harassment) are a violation of law and a company can terminate an employee for that conduct.”

Said O”™Rourke: “The issue of retaliation is always a problem for a company which has other valid reasons for terminating an employee. For example, the fiancÃ© may have been a chronic poor performer and the company had other, legitimate reasons for the termination. The fiancÃ© can claim he was fired in retaliation for what his girlfriend did, which is a valid claim. However, at trial the company can defend the claim by presenting evidence that other, nondiscriminatory reasons existed to justify the termination. Having said that, the termination of any “protected class” (for example, someone who claims that they were fired because of color, creed, as a form of retaliation, etc.) always carries a risk of a claim of discrimination, and thus employers are advised to, and often do, exercise extreme care in documenting other non-discriminatory reasons for the termination.”