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Courts tell employees to MYOB about workplace affairs; but they can have devastating consequences

July 28th, 2011  |  Ron Miller

In two recent decisions, courts told employees to essentially mind their own business with respect to workplace affairs between a supervisor and a subordinate. In Zimpfer v Aramark Mgmt Servs, LP, a federal district court in Utah concluded that a grounds worker who encountered the housekeeping supervisor engaged in sexual activity with a housekeeper in the janitorial supply closet could not assert a prima facie retaliation claim that he was discharged for lodging a complaint about the incident. According to the court, the employee could not have held a good-faith, reasonable belief that the conduct he opposed constituted a violation of Title VII. Because the complained-of activity was not directed at him or his status as a man, the court found the employee did not engage in protected opposition to sexual harassment and could not sustain a Title VII retaliation claim.

Oppositional activity. Similarly, the Idaho Supreme Court, in Patterson v State of Idaho Dep’t of Health and Welfare, affirmed the dismissal of a state employee’s discrimination and retaliation claims under the Idaho Human Rights Act (IHRA), after finding that the lower court properly found the employee did not engage in protected oppositional activity when she complained about an intra-office romance between her supervisor and a coworker. Here, the court found that the employee could not have reasonably believed that the romance created a hostile work environment, and so her complaints about the romance did not give rise to an actionable retaliation claim.

Upon concluding that an improper relationship existed, the employer gave only a mild admonishment to the supervisor. Although the employer had an internal policy discouraging intra-office relationships, the employee’s complaints did not constitute protected oppositional activity, concluded the court. After surveying court cases addressing paramour favoritism, the state high court found the overwhelming case law holds that paramour favoritism is not violative of Title VII, so that the employee had no grounds to believe that she was engaging in protected activity. Moreover, the court noted, the alleged favoritism, even if shown, affected all concerned on a gender-neutral basis. As such, the employee could not show that the romantic relationship or the alleged favoritism was directed against, or had an unfavorable effect upon, a person or group protected by the Act, affirming dismissal of her claim.

Strictly speaking, an employee’s personal life is really of no concern of an employer. However, in the instance of an office romance, an employer may find that an employee’s personal life may intrude on its own operations. Workplace affairs can have devastating consequences, and it is not uncommon for a relationship that started out as consensual to devolve into a case of sexual harassment in the aftermath of a failed relationship.

One such disastrous affair was highlighted in U-Haul Co of Nevada, Inc v Gregory J. Kamer, LTD, where an affair between an NLRB attorney and a paralegal in the law firm retained by U-Haul to defend it against Board charges resulted in a legal malpractice suit against the law firm.

In 2004, the NLRB initiated proceedings against U-Haul and appointed Board attorneys to prosecute the case. U-Haul hired a law firm to provide legal representation during the NLRB proceedings. While the case was proceeding, a paralegal employed by U-Haul’s law firm carried on an illicit sexual relationship with one of the NLRB attorneys. During the course of the affair, the paralegal provided the Board attorney with confidential information that he used in the proceedings. Moreover, the attorney and paralegal discussed all aspects of the case during their affair. The paralegal participated in witness preparation, served as custodian for the trial record, and was present throughout the proceedings.

During the NLRB investigation into the matter, it was determined that no one in the law firm had informed U-Haul of the Board attorney’s conduct. After the law firm informed U-Haul of the affair, the company filed a malpractice action. Of course, U-Haul loss the unfair labor practice charges brought the NLRB. It was essentially defenseless because Board attorneys had prior knowledge of its plans and strategies.

While proceedings in the malpractice are still moving forward, already the law firm has loss on its initial attempts to quash U-Haul’s suit. Regardless of the eventual outcome, this case may have the potential to spill beyond the borders of the malpractice suit itself and seriously impair the ability of the law firm to attract clients or, at the very least, require it to have to offer assurances that it has put safeguards into place to protect the confidentiality of client records and integrity of the client-attorney relationship.