David Petraeus wasn’t the only high-profile Beltway executive to resign because of an affair in recent days.
The same day news broke of the CIA director’s departure, Christopher Kubasik, the incoming head of Lockheed Martin, a defense contractor with $46 billion in annual sales to the U.S. government, also left his post. Kubasik’s infraction was a “close personal relationship with a subordinate employee.”
Petraeus and Kubasik resigned their positions on November 9. Although the two men stepped down for different reasons, both cases raise questions about what rights employees can expect to privacy and individual pursuit of happiness while carrying on sexual liaisons in or around the workplace. The short answer: none.
If you live in an at-will employment state—a work agreement in which your job is terminable by either the employer or employee for any reason whatsoever—or if your employer issues an employee handbook counseling against workplace romance, and you’re fired for engaging in one, forget about a wrongful termination suit. Odds are a lawyer won’t touch your case.
“For every 1,000 people who contact me, I’ll speak with 10, and I’ll take one claim,” John A. Klassen, a Minnesota-based employment law and sexual harassment attorney, tells TakePart. “Winning a plaintiff-sought employment case is a long and steep row to hoe unless you’ve got a smoking gun.”
One problem with the zero tolerance policy is that workplace liaisons aren’t rare.
In the case of a sex-in-the-workplace termination case, the claim would need to hinge on you being treated differently than other employees in the same situation. For instance, a female employee fired for a liaison with a male colleague when a male in the same office did the same thing and didn’t get fired would have a better chance of winning a suit.
In a current Minnesota case, former legislative staffer Michael Brodkorb was fired from his position in the Senate last year after his affair with then-Senate Majority Leader Amy Koch (R) was discovered. Brodkorb has filed a lawsuit against the Senate claiming gender discrimination, saying while he was fired, female staffers who did the same with male lawmakers have kept their jobs.
In most cases of this type, says attorney Klassen, employers fight back hard against former employees. “The company will bring up all sorts of dirt,” he says. “[The tactic] is often successful.”
One problem with the zero tolerance policy is that workplace liaisons aren’t rare. A recent survey by CareerBuilder, the job listing website, found that 38 percent of workers had dated a coworker at least once over the course of their career.
Moreover, more than a quarter of the workers who said they’d dated a co-worker, had dated someone above them in the company hierarchy, and nearly one-in-five (18 percent) admitted to dating their boss. Women are more likely to be in the latter category than men, according to the survey.
Liaisons outside the workplace are a different ball game, says Klassen, who has 18 years of experience with these cases. “It’s hard for most employers to say you can’t have an affair that has no connection with the workplace,” he says.
But it can become an issue. “If the employee’s using company time to communicate with a paramour in an at-will employment state, that’s probably going to justify a termination.”
Petraeus and his paramour Paula Broadwell tried to be sneaky about their communications, but even one of the country’s top spies was caught in the virtual act. So just imagine how easy it will be to uncover the average office drone’s affair.
Most employers don’t have the FBI on their side, but they still have a lot of tools at their disposal.
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