A Terminable Affair: The Right to Intimate Association At Work
Two police officers work for the City of Roseville Police Department. Both are married but separated from their respective spouses. They begin an intimate relationship. The female officer, Perez, is a probationary officer. The male officer, Begley, has worked for the Department for approximately 7 years.
Begley’s wife makes a complaint against Begley and Perez claiming that they are having an affair and engaging in sexual conduct while on duty. The Department opens an Internal Affairs investigation. The investigation finds no evidence of sexual conduct while on duty. Both officers are issued reprimands.
Perez appeals the reprimand. There is a hearing with the Chief of the Department. At the conclusion of the hearing, Perez is told that she is being terminated from the Department. She is given no explanation for the termination.
The Right to Privacy and Intimate Association
Perez files a lawsuit against the Department and the City of Roseville. She claims that the Department violated her rights to privacy and intimate association because she was fired for engaging in an affair with a fellow officer. The trial court throws out her case.
On appeal, the Court of Appeal reinstates her lawsuit holding that she has a constitutional right of privacy and free association.
“We have long held that the constitutional guarantees of privacy and free association prohibit the State from taking adverse employment action on the basis of private sexual conduct unless it demonstrates that such conduct negatively affects on the job performance or violates a constitutionally narrowly tailored regulation.” [Janelle Perez v. City of Roseville, 2018 DJDAR 1361]
The Court of Appeal sends the case back to the trial court. Perez is entitled to pursue her case because a genuine factual dispute exists as to whether the City of Roseville and the Roseville Police Department terminated Perez at least in part on the basis of her extramarital affair. At trial, the City and the Department can argue the defense of whether such private sexual conduct negatively affected her job performance.
Employees have a right to privacy and intimate association in the workplace. Governmental employees are no exception. Employer that try to enforce policies that limit this right may be overreaching and subject themselves to claims for breach of the employee’s rights.
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