Privacy Issues in the Workplace

Crosier v. United Parcel Service, Inc. The employer, UPS, had an unwritten rule prohibiting social relationships between management and non-management employees. 517 The plaintiff, a management employee, claimed wrongful termination on the grounds that his dismissal for violation of this non-fraternization rule was not for good cause. In determining whether his dismissal based on this violation constituted good cause, the court reasoned that it must balance the employer’s interest in operating his business efficiently and profitably with the interest of the employee in maintaining his employment. The court found that the employer was legitimately concerned with appearances of favoritism, possible claims of sexual harassment and employee dissension created by romantic relationships between management and non-management employees.

Employers should consider the following in reviewing their policies:

 Does your agency’s interest in preventing workplace problems due to these types of relationships justify the invasion of employees’ privacy?  How would your agency determine whether employees were violating the policy?

 How would your agency ensure that the policy is being enforced uniformly?

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. 518 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

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