Manager’s Termination for Pursuing Intimate Relationship with Subordinate Did Not Violate Manager’s Privacy Rights

Volume 2, Issue 19
December 18, 2003

The California Court of Appeals recently upheld the grant of summary judgment in favor of Household Automotive Finance Corporation ("HAFC") and against its former sales manager, Robert Barbee, who sued after he was terminated for dating a subordinate employee, alleging a violation of his state constitutional right of privacy.

In its conflict of interest policy, HAFC required supervisors desiring to enter into consensual intimate relationships with any employee in the supervisor's direct or indirect control to bring the matter to management's attention for appropriate action, including possible reassignment to avoid a conflict of interest. Management questioned Barbee about the nature of his relationship with Melanie Tomita, a sales employee under his direct supervision. When he admitted to having a "special relationship", Barbee was informed that he would have to end the relationship, or alternatively, either Barbee or Tomita could resign. Barbee failed to end the relationship and was terminated.

Barbee filed suit alleging an invasion of privacy and wrongful termination in violation of his state constitutional right of privacy. In entering a judgment in favor of the employer, HAFC, the court noted that Barbee had no reasonable expectation of privacy to pursue intimate relationships with workplace subordinates. The court recognized that such relationships between a supervisor and employee created the potential for conflicts of interest, favoritism, perceived favoritism, and sexual harassment.

While not controlling in Nevada, the Barbee case is important to Nevada employers. Unlike California, Nevada does not have an express constitutional provision protecting the enjoyment of privacy. Instead, Nevada has what is referred to as a "common law" right of privacy, i.e. a judicially recognized legal right that has no express statutory or constitutional basis. The fact that a court in a state with an express constitutional right of privacy finds no reasonable expectation of privacy in the workplace for those supervisors seeking to pursue intimate relationships with subordinates, offers a persuasive argument that no such expectation of privacy should be recognized in a state with just a common law right of privacy. As California is a sister-state from which the Nevada courts typically look to for guidance, the Barbee case may carry some additional weight for Nevada employers seeking to enforce workplace consensual relationship polices.

Given the continued focus on harassment by supervisors, reflected in cases such as Holly D v. California Institute of Technology, 339 F.3d 1158 (9th Cir. 2003), which clarified that employers are strictly liable for supervisors coercing employees into performing unwanted sexual acts, employers are increasingly forced to monitor and regulate workplace romances, despite concerns about employee privacy. The Barbee case provides employers with at least a modicum of assurance that, if they act reasonably, their consensual relationship polices will survive legal scrutiny based on assertions of privacy violations.

Barbee v. Household Automotive Finance Corp., 6 Cal. Rptr. 3d 406 (Ct. App. 2003).

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.