Off-Duty affair with co-worker is constitutional right – 9th Circuit

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How much can an employer control an employee's off-work conduct? Certainly less in the case of public employees because they have constitutional rights.

The 9th Circuit holds that a police officer has a constitutional right not to be fired for having an off-duty extramarital affair with a co-worker. Perez v. City of Roseville (9th Cir 02/09/2018) [PDF]. This case deviates significantly from cases in two other federal circuits by requiring that the police department show some negative effect on job performance or violation of "a constitutionally permissible, narrowly tailored regulation."

Janelle Perez was a probationary police officer who was discharged after an internal affairs investigation into her romantic relationship with a fellow officer. At the time, the police chief gave her no reason for the discharge. Perez sued the police chief and other ranking officers claiming a violation of her rights of privacy and intimate association, based on the 1st, 4th, and 14th amendments.

The trial court granted summary judgment for the defendant officers, and the 9th Circuit reversed. So there's been no trial, and all we have are pleadings and pre-trial depositions and documents.

During the litigation the police chief said his decision was based on additional information that he had learned about Perez’s performance and conduct since the completion of the initial investigation. And a captain and lieutenant said things that the court thought could lead a reasonable juror to conclude that they "morally disapproved of Perez’s private sexual conduct." Add to that: The court found "sufficient circumstantial evidence to raise a genuine factual dispute about whether the Department’s three proffered reasons for terminating Perez were pretextual attempts to conceal its true motive for terminating her: the extramarital affair."

On the constitutional issue, here is where the court stands:

"We have long held that the 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. See Thorne v. City of El Segundo, 726 F.2d 459, 471 (9th Cir. 1983) [PDF]."

The court nodded to the fact that the 5th and 10th Circuits have issued opinions "in some tension" with the 9th's position. Those cases applied a rational basis test, but the 9th Circuit is using "heightened scrutiny," and even using a rational basis analysis the police department's actions "cannot survive any level of scrutiny without either a showing of a negative impact on job performance or violation of a constitutionally permissible, narrowly drawn regulation."

The 9th Circuit also denied qualified immunity to the defendant police chief and officers on the claim of constitutional rights to privacy and intimate association because "these rights were clearly established by our precedent in [Thorne v. City of El Segundo, 726 F.2d 459, 471 (9th Cir. 1983) [PDF]] such that any reasonable official would have been on notice that, viewing the facts in the light most favorable to her, Perez’s termination was unconstitutional."

One judge concurring was in agreement on the result but would rely solely on pretext, which would be a question for the jury.

I have to wonder whether there ever would have been a lawsuit if the police chief had sat down with Perez and given her a reason why she was being fired.