The #MeToo movement has understandably made employers more concerned about sexual relations between coworkers. An office romance may seem consensual, but is it really? This is especially problematic when there’s a power differential – such as a supervisor-subordinate relationship.

So what can employers do to prevent coworker relations that they fear may end in a sexual harassment claim? Certainly, employers can establish rules and internal policies discouraging coworker relations. But, as recently affirmed by the Ninth Circuit in Perez v. City of Roseville, there are constitutional limits on what public employers, like State and municipal governments, can do if they discover a consensual office romance.

In Perez, the City of Roseville, California investigated police officers Janelle Perez and Shad Begley after Begley’s wife reported that Begley and Perez engaged in sexual conduct while on duty. The investigation revealed that the officers were involved in an extramarital affair, but the City could not prove that they engaged in sexual conduct while on duty. Begley and Perez were written up for violating department policies. A short time later, Perez was fired, purportedly for performance reasons unrelated to the affair. Perez sued, alleging that “her termination violated her constitutional right to privacy and intimate association because it was impermissibly based in part on disapproval of her private, off-duty sexual conduct.” The lower court granted summary judgment for the defendants and Perez appealed.

The Ninth Circuit reversed in part, finding triable issues of fact as to whether Perez was fired for engaging in constitutionally-protected private sexual conduct. The court said: “[T]he 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 permissible, narrowly tailored regulation.”

In a nutshell, Perez establishes that, at least within the Ninth Circuit (including California), a public employer cannot take adverse action on the basis of an employee’s private, off-duty sexual activity, unless the employer demonstrates that the conduct caused the employee’s job performance to suffer. This holding arguably extends to employees in the private sector too, who are subject to the same constitutional right to privacy and intimate association.

Takeaway: The #MeToo movement has led many employers to believe that all office romances are off-limits and constitute a fireable offense. Not so. At least within the Ninth Circuit, public employers cannot fire employees for private, off-duty sexual conduct that does not adversely impact job performance. Of course, employers can and must address non-consensual conduct and conduct that creates a sexually hostile work environment. But that does not give employers the right to intrude into relationships outside of work that do not directly impact the workplace.

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