No employee ‘right’ to affair with subordinate

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in Discrimination and Harassment,Human Resources

The U.S. Constitution guarantees citizens the right to free association without government interference. Courts have used that right to strike down laws that prevent members of different ethnic backgrounds from marrying each other.

However, the right has limits. For example, states can outlaw incestuous relationships and set minimum-age requirements for marriage, among other things.

But what about the right of public employees to free association? Can a public employer punish an employee for having a romantic relationship with a subordinate? That was the question recently answered by the 11th Circuit Court of Appeals.

The court concluded that concern over sexual harassment and maintaining a harmonious workplace outweigh any potential constitutional right to free association with a subordinate.

Recent case: Randolph Starling was a firefighter and rescue captain for the Palm Beach County Fire Department. Starling apparently arranged for another county employee to be transferred to his command—an employee with whom he wished to have a relationship. Once she became his subordinate, they began a romance. Starling was married at the time, but soon filed for divorce.

Eventually, the two married. Starling began spending even more on-duty time with his new wife. His boss took note of what he considered an inappropriate relationship and disciplined Starling by demoting him. Starling sued.

In court, the county argued that its employees didn’t have the right to adulterous relationships with subordinates. The county pointed out that allowing such conduct affected morale among other employees and increased the potential for a sexual harassment lawsuit.

The 11th Circuit Court of Appeals agreed. It said the county’s legitimate workplace concerns outweighed Starling’s right of free and intimate association. (Starling v. Palm Beach County, et al., No. 09-11168, 11th Cir., 2010)

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