Spotlight: Potential Pitfalls of Non-Fraternization Policies

Many employers feel that a non-fraternization policy is essential to help protect management and the company from charges of sexual harassment or a hostile work environment due to relationships that develop in the workplace.  Also, there is concern that when personal matters are brought to work it could lead to unnecessary disruptions and problems in the workplace.  Most non-fraternization policies deal specifically with relationships between managers/supervisors and employees they directly or indirectly control or direct.

A recent decision of the Sixth Circuit Court of Appeals illustrates some of the problems that can arise even when a well-drafted and well-intentioned policy of non-fraternization is not applied evenhandedly.  Ayers-Jennings v. Fred’s Inc. (6^th Cir. 2012), No. 10-6228.  In the Ayers-Jennings case, an African-American employee who was terminated under her employer’s non-fraternization policy after she married a manager filed suit under Title VII asserting discrimination.  She alleged that her termination was brought about pursuant to a policy that was not strictly enforced as to others and was, instead, motivated by race.  In particular, she pointed to evidence of three white employee couples who were all allowed to keep working even after they married.  The employer moved for summary judgment contending that the white employees were not similarly situated in all relevant respects.  The trial court granted the motion and the plaintiff then appealed the decision.

While the Court of Appeals did uphold the granting of summary judgment, the Ayers-Jennings case still stands out as a pointed reminder that when utilizing non-fraternization policies strict compliance and enforcement is crucial.

Because Ms. Ayers-Jennings case did not involve evidence of direct discrimination, she had to rely upon circumstantial evidence under the burden shifting framework provided under the McDonald-Douglas case. To establish a prima facie case of discrimination, the plaintiff must show that:

1. She was a member of a protected class;
2. She was discharged or subject to adverse employment action;
3. She was qualified for the position that she lost; and

This case hinged upon an analysis of the fourth element.  In upholding summary judgment, the Sixth Circuit Court emphasized that there was clear evidence that the Plaintiff’s husband, while not her direct supervisor, did hold a position where there was a “possibility that [he] could be in a position to supervise her in the warehouse after their marriage.”  In particular, the Court specifically reviewed the management structure set up at the warehouse and the roles played by the managers.  The plaintiff identified three other white couples who were allowed to marry and maintain their jobs with the employer.  The Court, however, distinguished each couple and found that none of the white couples included a man and a woman who worked in the same facility or department.  Instead, one worked in the warehouse and the other in the corporate division.  There was not even a remote opportunity for direct supervision between these couples.  In one instance where there was a potential for direct supervision, a transfer was given to the male spouse to avoid any such interaction.  While Ms. Ayers also complained that she had been denied a transfer, she failed to provide any evidence to establish that she was qualified for any position in the corporate division.

Again, while the Court did uphold the employer’s use and enforcement of its non-fraternization policy, the case illustrates how any variation in the application of that policy can lead to hard feelings amongst employees and potential litigation.  For these reasons, employers should be very careful in both drafting their non-fraternization policies and enforcing those policies.  A hard line in enforcement is necessary even when the results may involve loss of a long term productive employee.  For these reasons, employers should weigh carefully their decisions to utilize non-fraternization policies.

Again, while the Court did uphold the employer’s use and enforcement of its non-fraternization policy, the case illustrates how any variation in the application of that policy can lead to hard feelings amongst employees and potential litigation.  For these reasons, employers should be very careful in both drafting their non-fraternization policies and enforcing those policies.  A hard line in enforcement is necessary even when the results may involve loss of a long term productive employee.  For these reasons, employers should weigh carefully their decisions to utilize non-fraternization policies.