Privacy Issues in the Workplace

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 . . . .” 514

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. 515 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 subordinate, he could not establish that he had a reasonable expectation of privacy in such a relationship. 516 The Barbee court noted that employers have legitimate interests in “avoiding conflicts of interest between work-related and family-related obligations; reducing favoritism or even the appearance of favoritism; [and] preventing family conflicts from affecting the workplace.” The court further noted that managerial-subordinate relationships present issues of potential sexual harassment.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 156