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Employees may feel that their employer’s right to know about their lives ends when they walk out of the workplace — but that’s not always true. Much out-of-work conduct can affect the employment relationship. If an employee is arrested, for example, or held to public disrepute, an employer is usually well within its right to end the employment relationship. The intersection between an employee’s private life and an employer’s policy was examined in the recent case of Andy v. United Parcel Service, F.Supp. 2d (E.D. Pa. 2003). ANTI-FAVORITISM POLICY Adam Andy worked for UPS from 1972 to 2000. During this time, he held a number of supervisory positions, including, at one point, that of Human Resources supervisor. In this particular position, Andy became quite familiar with UPS’ “anti-favoritism” policy. This policy stated, in part, that “relationships between employees, other than professional relationships, can lead to detrimental effects in the workplace … and may incur liability on the part of our company. Unprofessional relationships potentially expose participants and our company to allegations of sexual harassment, favoritism, conflict of interest and breach of confidentiality.” RELATIONSHIP WITH SUBORDINATE Andy was, by all accounts, close to a model employee until May, 2000, when rumors that he was engaged in a personal relationship with a female subordinate named Alison came to light. At this time, Andy was serving as the operations manager of UPS’ facility in Lancaster, Pa. The rumors of his relationship with Alison first surfaced when Alison complained that her co-workers were using code names to refer to her and Andy as a couple. UPS confronted Andy about his purported relationship and Andy said that “it had been taken care of.” Over the next month, the relationship between Andy and Alison seems to have been a topic of almost daily conversation at UPS. This was fueled, no doubt, by allegations that the couple had been seen dining together and were planning to purchase a home together. UPS began a formal investigation into the relationship in mid-June. During a meeting with his supervisor and a UPS Security Manager, Andy refused to answer questioning about his relationship with Alison outside of work. He took the same approach the next day when his supervisor again questioned him about the relationship. Finally, the decision was made to terminate Andy’s employment. Given one final opportunity to cooperate in the investigation, Andy flatly refused to do so. At this point, he was given the opportunity to either resign or be terminated based upon “favoritism” and “dishonesty.” AGE DISCRIMINATION CLAIM Andy, who was 52 years old at the time of his termination, brought suit against UPS for age discrimination. During litigation, UPS relied on its policy prohibiting inappropriate relationships, based on the perception of favoritism and the need to prevent claims of sexual harassment. While Andy had refused to respond to questioning about his relationship with Alison during his employment, he denied the relationship during litigation. The denial, however, was too late. By failing to respond to UPS’ legitimate questions during his employment, Andy had lost his opportunity to question this sincerity of his supervisors’ perception. As the court noted: “Because [Andy] refused to answer … questions [about the extent of his relationship with Alison], he kept pertinent information locked up and away from those who would ultimately determine the further status of his employment.” NO INCONSISTENCY Andy also attempted to defeat summary judgment by pointing to a slight inconsistency in the company’s initial emphasis on preventing sexual harassment in the workplace when, during litigation, UPS also relied on the desire to prevent the perception of favoritism as an explanation for the termination. The court, in essence, “squared this circle” by again relying on Andy’s refusal to participate in the investigation which left UPS to maintain a belief that Andy was in violation of the company’s policy, which notes both favoritism and sexual harassment as justifications. Andy’s final salvo was simply that, given his exemplary record at UPS, his termination was too harsh. The court noted that once a violation of the policy had occurred, UPS “became free to apply whatever punitive step was available to it. Just because UPS chose the most extreme measure does not bear on … whether or not discriminatory animus motivated that decision.” UNFAIR BUT NOT ILLEGAL The court discussed, in a lengthy footnote, what it perceived to be the justification for UPS’ concern regarding favoritism, which is often called “paramour discrimination” — that is, when one employee claims that he or she was denied a promotion or a favorable assignment in favor of an employee with whom the supervisor was intimately involved. While such an arrangement is clearly unfair and may destroy workplace morale, there is no question but that “paramour discrimination” does not violate any federal anti-discrimination statute. As the 11th Circuit noted in Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385 (11th Cir. 1998), “[even] the EEOC [has run] up the white flag on the issue” having issued policy guidance on what the commission called “sexual favoritism” in 1990. The Andy case emphasized, however, that an employer can have virtually any facially reasonable policy, so long as it is applied across the board; and an employee under investigation refuses to participate in the investigation at his or her own peril. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, (www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

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