A firefighter demoted after having an extramarital affair with one of his subordinates maintained that his employer had violated his First Amendment right to intimate association.For a Limited Time receive a
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What happened. In May 2005, “Marshall” worked as a rescue captain for the Palm Beach County Fire Rescue Department. In that capacity, he arranged to have a female firefighter, “Rita,” transferred to his fire station as a subordinate.
Marshall, who was separated from his wife, began an intimate relationship with Rita. His wife filed for divorce in July 2005.
Shortly after Marshall moved into Rita’s home in October 2005, he learned that his direct supervisor had been using that home for extramarital trysts with another married firefighter and that that couple had twice invited Rita to join them in a sexual encounter.
The supervisor allegedly threatened disciplinary action against Marshall when Marshall asked Rita to stop letting the other couple use her home. In addition, the supervisor allegedly told Marshall to break up with Rita and made offensive comments about their relationship. The supervisor watched Rita closely, apparently trying to catch her doing something wrong.
Marshall and Rita did not end their relationship, and Marshall’s requests for transfers for himself and Rita were denied. After Marshall complained to his union representative, his supervisor allegedly threatened to demote Marshall.
The supervisor said Marshall’s relationship with Rita was hurting the effectiveness of his battalion. He issued an Employee Development Form (EDF) for Marshall on January 11, 2006, stating that his “preoccupation” with Rita was “caus[ing] a disruption for the station office and for the crew.”
The EDF warned that failure to return to his past level of performance could “lead to initiation of a special performance review or disciplinary action.”
On February 13, 2006, Marshall was demoted from captain to firefighter/paramedic by the county’s fire rescue administrator, who apparently had no knowledge of Marshall’s relationship with Rita before rendering that decision.
Marshall filed suit against his direct supervisor and the county, alleging that his First Amendment right to intimate association had been violated. The district court granted summary judgment to the supervisor and county, and Marshall appealed to the U.S. Court of Appeals for the 11th Circuit, which covers Alabama, Georgia, and Florida.
What the court said. The appeals court affirmed the decision, saying that the defendants “did not violate the [U.S.] Constitution because the county’s interest in discouraging extramarital association between supervisors and subordinates is so critical to the effective functioning of the fire department that it outweighs the firefighter’s interest in extramarital association with a subordinate,” even assuming—for argument’s sake—that extramarital association is protected as a fundamental right under the First Amendment.
According to the appeals court, “the county has a strong interest in regulating intimate relationships between supervisors and their subordinates in the fire department.” The court noted that the county’s Operational Procedure “strongly discourages” supervisors and subordinates from becoming romantically involved because of the “potential for abuse of power” and “sexual harassment.”
The court pointed to three examples of how Marshall and Rita’s relationship was damaging operational efficiency at the fire station:
- Internal discipline was impaired. The special attention that Marshall gave to Rita was “threatening the ‘harmony’ of the shift,” the court said.
- Favoritism. The court noted that Marshall had cancelled a training session so he could work exclusively with Rita.
- Performance issues. Marshall’s relationship with Rita “distracted him from his responsibilities and impeded his overall performance at work.”
Starling v. Board of County Commissioners, et al. No. 09-11168, U.S. Court of Appeals, 11th Cir., 4/6/10
The Law. Currently, federal law does not preclude businesses from prohibiting dating among employees. However, such policies are difficult to maintain and even harder to enforce. Generally, speaking, it is not a good idea to set up rules about behavior away from the job that may raise issues of privacy and personal freedom. It will, however, become a business necessity if it leads to behavior that negatively affects productivity, morale, customer relations, or effective supervision.
Office romances pose several potential legal issues for employers, but a company’s antiharassment policy can be used effectively to eliminate many of the issues associated with office romances after they have ended.
What to Remember
- Be consistent with discipline. The court ruling is silent on whether the direct supervisor’s own extramarital relationship with a married firefighter had a negative impact on the direct supervisor’s performance, whether he supervised the female firefighter involved, or whether any disciplinary action was taken against him.
- Be objective. The court noted that the administrator who decided to demote Marshall was unaware of Marshall’s relationship with Rita until after the demotion was made.