An employee who is terminated for alleged sexual harassment based on a consensual out-of-work romantic relationship with a coworker, where no complaint of sexual harassment was ever made and where the employer’s investigation revealed no good-faith basis for concluding sexual harassment had occurred, can serve as the basis for a public-policy wrongful discharge claim pursuant to Pierce v. Ortho Pharmaceutical Corp, 84 NJ. 58 (1980) (holding that it is unlawful to discharge an employee in violation of a clear mandate of public policy) and Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993) (requiring employers to conduct fair and thorough investigations of sexual harassment allegations). Both the New Jersey Supreme Court and the Appellate Division have held that consensual romantic relationships between coworkers do not constitute sexual harassment, even if one of the parties to the relationship is favored by the other to the detriment of third parties in the workplace.
In Erickson v. March & McLennan Co., Inc., 117 N.J. 539 (1990), a unanimous New Jersey Supreme Court held that (1) there was “no reason to extend the protection of the LAD to sex-discrimination claims based on voluntary personal relations in the workplace” and (2) “favoritism in the workplace, based solely on personal romantic preference as opposed to coercion, does not constitute discrimination on the basis of gender.” Id. at 557. Similarly, while addressing the discoverability of consensual sexual relationships between partners and employees at a law firm in a case in which the plaintiff associate alleged that she had been raped by one of the partners, the Appellate Division relied upon the distinction between sex in the workplace and sexual harassment in the workplace to bar discovery of such consensual sexual relationships. K.S. v. ABC Professional Corp., 330 N.J. Super. 288 (App. Div. 2000). The Appellate Division noted that “[s]ex is not congruent with sexual misconduct” in holding that “whether any partner ever had a consensual and welcomed relationship with an employee is irrelevant to plaintiffs’ claim that a hostile work environment was created or tolerated by defendants.” Id. at 297. Hence, in New Jersey consensual sexual relationships in the workplace, even between superiors and subordinates, do not constitute sexual harassment, and therefore cannot be used as a predicate for firing an employee for sexual harassment. Given this, it may be gainsaid that an employer violates a clear mandate of New Jersey public policy by firing an employee for alleged sexual harassment based on the employee’s consensual romantic relationship with a coworker. Such a discharge violates a clear mandate of public policy and therefore is unlawful Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980).
In Grasser v. United Healthcare Corporation, MID-L-12026-99, the company fired plaintiff Grasser after learning he had been involved in a romantic relationship with a female coworker even though no one (including the female coworker) had complained plaintiff Grasser had done anything inappropriate and despite the female coworker’s clear statement the relationship was entirely consensual. Moreover, the employer’s investigation uncovered absolutely no evidence that either plaintiff or the female coworker had done anything inappropriate in the workplace. Notwithstanding this, defendant-employer fired plaintiff anyway, asserting his relationship with the female coworker violated the company’s sexual harassment policy. In denying the defendant corporation’s motion for summary judgment, New Jersey Superior Court Judge Yolanda Ciccone, J.S.C. stated in part:
“As to the … public policy discharge claims, it is established that the public of New Jersey mandates employers conduct fair and through investigations when they of potential sexual harassment in the workplace. It is established that an employer violates clear public policy by firing an employee for alleged sexual harassment based on employee’s consensual romantic relationship with a coworker. Such a wrongful discharge is a violation of the clear mandate of New Jersey public policy.” (emphasis added).
Do not hesitate to call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help, if you were fired or otherwise suffered an adverse employment action because you were involved in a romantic consensual relationship with a coworker. At Mashel Law, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.