May 8 2024
Josh Goodbaum: Hi, Amanda.
Amanda DeMatteis: Hi, Josh. What are we gonna talk about today?
Goodbaum: I wanna talk about a potential client who came to us and said basically, “I was in a consensual, romantic, sexual relationship with my coworker. She broke up with me. I respected it. I left her alone. And a couple of days later, I heard from HR that she’s complained that I’m harassing her. And the evidence of this harassment is the text messages that we exchanged back when we were in this consensual relationship. I got fired, and that doesn’t feel fair because how can they fire me over something I did outside of work when I did nothing wrong? And, why are they memorializing my former intimate partner trying to get back at me over something she didn’t like that I did in our relationship? Can they do that?”
DeMatteis: This is a tough one, Josh, and we’ve talked about it before when it comes to interpersonal relationships or sexual relationships in the workplace. These are really difficult, and if you can, try to avoid them. But, handling this example as you presented to us, what can we do?
Can you be terminated for legal conduct that you participate in outside of work? Simple answer? Usually, yes. The default in Connecticut, as we’ve talked to you about many times, is at-will employment. So, your employer can terminate you for no reason or whatever reason they choose as long as it’s not a violation of the law.
Now, there are exceptions to that, of course. If you are terminated for participating in constitutionally-protected speech outside of work, that is actionable. But in the example that you’ve given us here, Josh, that’s not the case. This is a consensual sexual relationship that’s taking place outside of work hours, and can this guy be terminated for that? Simple answer in Connecticut – yes.
Goodbaum: Okay, but what if he says, “Wait a minute. It seems like you are taking the side of my former girlfriend. You’re believing her because she’s a woman who complained about sexual harassment, and you’re not believing me, a man, who is the victim here of a complaint about sexual harassment just because I’m a man. You’re basically believing women, not believing men. Isn’t that sex discrimination?”
DeMatteis: And that’s exactly where I was going. It could potentially be sex discrimination, right? Because it sounds like there’s just inherent bias. “I’m going to believe the woman. I’m going to discredit everything the man says.” It could, of course, be vice versa. But in the example that we’re working with right now, if your employer is only taking the version of fact that the woman is presenting, not crediting anything that you’re saying as a defense to it or explaining that this was, you know, off-premises, outside of work time, consensual, legal activity, maybe it’s sex discrimination.
So, I think each case under these types of facts needs to be analyzed really independently because everything is very, very different and very fact-specific. But I think you have those two different lenses to view this through. Number one, is whatever you did off duty – whether it be legal – is it an exception to the at-will employment rule in some way? And number two, is there some type of discrimination taking place which is causing your employer to believe one party over the other?
Goodbaum: Really helpful information. Thanks, Amanda, and thank you all for watching. We’ll see you next time.
Posted by Garrison, Levin-Epstein, Fitzgerald & Pirrotti, P.C. in Commentary
Tagged Amanda DeMatteis, Joshua Goodbaum
