An Administrator's Guide to California Private School Law

Chapter 10 - Privacy Rights Of Students And Employees

 Security - does the relationship raise questions about an individual’s ability to maintain the confidentiality or security of the employer’s property or matters to which the employer has a duty of confidentiality?  Morale - would or does the relationship pose problems for morale? Normally this would arise in connection with problems with supervision, safety or security.

3. C ONSENSUAL W ORKPLACE R OMANCES A ND S EXUAL F AVORITISM Similar problems with supervision, safety, security or morale may exist when co-workers have special off-duty relationships. For example, dating among co-workers is common. Occasionally, co-workers will develop long term relationships and perhaps live together. Employees have a strong expectation of privacy in these personal, off-duty relationships. However, an employer has a legitimate interest in controlling or preventing any adverse effects the relationship has on supervision, safety, security or morale. 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 a school’s investigation and response to a workplace relationship legitimate if the purpose was to detect and prevent harassment. The investigation should also be narrowly tailored to avoid unnecessary intrusions into private matters. It is more likely that schools will have protection from privacy claims when one party to the relationship complains to management. In that circumstance, a school’s anti-harassment policy should mandate an investigation or other response. A Court will likely find that the school’s interests in responding to a harassment claim will supersede privacy interests. 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 schools 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 a school 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. 1805 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 Appeal upheld the policy. The court found that even assuming the supervisor had a legally protected privacy interest in his intimate relationship with a

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