We do have a law in New York that protects employees from discrimination because of legal recreational activities outside work hours, NY Labor Law § 201-d(2)(c). So far, this has not worked out well for lovers in our courts – but Don’t Give Up! There’s a new law that has been tested on this in the courts yet.
In one case, both of the employees were fired based on Walmart’s “fraternization” policy, which prohibited a “dating relationship” between a married employee and another employee, other than his or her own spouse. The judge who initially heard the case ruled in favor of the lovers, but unfortunately, Walmart appealed, and won, State v. Wal-mart Stores, 207 A.D.2d 150, (3rd Dept. 1995). Most of the appeals court judges just could not accept that dating was a “recreational activity”. The statute protected “any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes”, but gave examples like bowling and exercise (like anybody was going to get fired for bowling). One of the appellate judges disagreed, and in his separate opinion, (which is called a dissenting opinion), said that dating, whether it involved a romantic attachment or not, should be considered a recreational activity. He also had a problem with the fact that the fraternization policy prohibited romantic entanglements but did not prohibit other types of social interaction. The dissenting judge thought that the purpose of the law was to limit employers’ ability to discriminate on the basis of activities that are pursued outside of work hours, and that have no bearing on one’s ability to perform the job.
In a similar case, a federal appeals court ruled the same way, but again, one of the judges disagreed, or more accurately, he very grudgingly agreed. McCavitt v.Swiss Reinsurance Am. Corp. 237 F.3d 166 (2nd Cir. 2001), He felt his hands were tied, and ended with the following lament:
If, when deciding to protect “recreational activities,” the Legislature saw fit to protect an employee’s right to engage in such historically revered activities as riding a motorcycle and hang-gliding, it certainly should have extended protection to the pursuit of a romantic relationship with whomever an employee chooses – even a fellow, unmarried employee – outside the office, during non-working hours. This is compellingly so in today’s society, where ostracizing anyone associated with one’s office from the acceptable dating pool would doom the majority of the population to the life of a Trappist monk.
But There’s Hope:
First, the bad ruling came from a upstate appeals court a long time ago, and that ruling later forced the hand of the federal court. There might very well be a different result today in one of the downstate appeals courts. Not only that, if this situation comes up again and our star crossed lovers happen to work here in the City, they will get the benefit of the NYC Human Rights Law, which prohibits discrimination based upon marital status. Therefore, if the employer fraternization policy only prohibits dating if an infidelity is involved, there will be a good claim that this is discrimination based on marital status. If you find yourself in this situation and get fired for it, I will be waiting for your call, but you will probably be more anxious to find out what happens than I will. If they have a rule against all fraternization – well, we’re still working on that one, but look around for any couples that met at work and are now supervisors – That’s a sign that the policy hasn’t been enforced and that maybe you were both fired for something else