In Barbee v. Household Automotive Finance Corporation, (2003 WL 22724732), the California Court of Appeal, Fourth Appellate District, addressed the issue of whether an employer’s termination of an employee for dating a subordinate violated the employee’s right of privacy or amounted to a termination in violation of public policy.
The chief executive officer of Household Automotive Finance Corporation (Household) informed Robert Barbee, a national sales manager, that dating someone within the Household sales force “was a bad idea” after he learned that Mr. Barbee was dating another member of the sales force, Melanie Tomita. Household’s conflict of interest policy requires that, if a supervisor wants to be involved in an intimate relationship with an employee in his or her direct or indirect area of responsibility, the supervisor has a responsibility “to bring this to management’s attention for appropriate action (i.e., possible reassignment to avoid a conflict of interest).” Mr. Barbee later admitted that he had a “special relationship” with Ms. Tomita. Household informed Mr. Barbee that, because the relationship created a potential conflict of interest, he would have to end the relationship, or in the alternative, either Mr. Barbee or Ms. Tomita would have to resign. Thereafter, Mr. Barbee informed the company that both he and Ms. Tomita wanted to keep their jobs. Household officials later found out the two were still dating and terminated Mr. Barbee’s employment.
Mr. Barbee filed a lawsuit alleging invasion of privacy, wrongful termination in violation of public policy, and sex discrimination by Household. The trial court granted summary judgment in favor of Household and Mr. Barbee appealed.
Appellate Court Decision
The Court of Appeal found that the trial court properly granted summary judgment in favor of Household. The Court concluded that Mr. Barbee could not establish a necessary element of his invasion of privacy claim under article I, section 1 of the California Constitution – that he had a reasonable expectation of privacy in pursuing an intimate relationship with Ms. Tomita. Employers have a legitimate interest in avoiding the conflicts of interests that can arise when a supervisor becomes involved in an intimate relationship with a subordinate. Employers also have an interest in avoiding sexual harassment claims that may arise when an employee dates a subordinate. These legitimate concerns weigh against a finding that a supervisor has a right to engage in a relationship with a subordinate. Here, Mr. Barbee’s expectation of privacy in pursuing a relationship with Ms. Tomita was also diminished by the fact that he had advance notice that Household believed the relationship would present a potential conflict of interest.
The Court also rejected Mr. Barbee’s claim that he was terminated in violation of the public policy embodied in California Labor Code section 96, subdivision (k), which authorizes the Labor Commissioner to act on behalf of employees who have experienced negative employment decisions as a result of their “lawful conduct occurring during nonworking hours away from the employer’s premises.” The Court concluded that subdivision (k) does not create a new public policy that provides employees with substantive rights, but instead establishes a procedure for the Labor Commissioner “to vindicate existing public policies in favor of individual employees.” The Court concluded that, in order for Mr. Barbee to prevail on a public policy claim under subdivision (k), he must first establish that Household terminated him for asserting a civil right guaranteed by article I of the California Constitution. However, because Mr. Barbee’s only civil rights claim was that Household violated his right to privacy, and the Court already determined Household did not violate his right of privacy, he failed to establish wrongful termination in violation of public policy.
The Court noted that Labor Code section 98.6 was amended in 2001 to provide that an employer shall not discharge or discriminate against an employee, or an applicant for employment, for any “conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96.” However, the Court did not consider the amendment in deciding the appeal because neither party relied on the provision.
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