Can supervisor be fired for e-mails to lover-subordinate?

I am a supervisor having a relationship with one of my reports.
We communicate via e-mail during the day. Can I be terminated for this? Our relationship is consensual. There is nothing in the employee handbook regarding dating. There is nothing regarding e-mail policies either.

If I am terminated for this do I have a case of wrongful termination?

Rita Risser's Response:

Although it is advisable for companies to have policies on sexual harassment and e-mail, employers are allowed to fire employees for violating the law. For example, if an employee kills a co-worker, an employer does not need a policy prohibiting murder before it can fire the employee.

The law of sexual harassment prohibits supervisors from abusing their positions of power over subordinates in order to have sexual relationships. The U. S. Supreme Court in Meritor Savings Bank v. Vinson, 477 US 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) ruled in a case where a supervisor propositioned a subordinate. At first, she said, she didn't welcome his advances, but when he persisted, she agreed and they had a relationship for four years. After four years, she quit and sued for harassment. The Supreme Court, in a unanimous opinion, ruled that if she did not initially welcome his advances, even though she consented to have sex with him, she still had a claim for sexual harassment. The Court reasoned that she may have felt pressured by the fact that he was her supervisor.

Because of this danger of abuse of supervisorial power, many employers, including IBM and UPS, historically have had policies prohibiting relationships between supervisors and subordinates. Employers also have anti-fraternization policies to prevent actual or perceived sexual favoritism, which at the very least causes morale problems among the other subordinates.

Turning to your situation, if a claim of sexual harassment or sexual favoritism were made against you, in most states the company would be required to investigate, including hearing your side of the story. If the other side is believed after an impartial investigation, your employer can discipline you, up to and including termination. Termination would be appropriate in my opinion in such a case.

If it came to the company's attention that you are having an affair, but no complaint has been made, no sexual favoritism has taken place, and your lover agrees that it is consensual, the employer has the right to minimize the potential for future claims. This could be done by demoting you, transferring you or your lover, or some other accommodation. Some employers have given supervisors ultimatums to "stop the affair or be fired." In one case, when the supervisor refused to stop the affair, he was fired. He sued and LOST. The California Court of Appeals ruled the employer had the right to terminate him in that context.

Now to the e-mails. Under the Electronic Communications Privacy Act, your employer owns the e-mail and the contents of it. Your employer has a right to read those e-mails, and take any action it deems reasonable. And although there is no policy, I think a court would allow an employer to discipline you for unreasonable personal use of the e-mail if the number or length of the messages is excessive, just as you could be disciplined for unreasonable personal use of the phone system.

Now might be a good time to consult a local attorney for specific recommendations suited to your particular situation.

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