Can my employer be held liable for my affair?

My company distributed my cell phone number to all employees. The cell phone was registered in my fiancée’s name at the time. I had an affair with an employee at the workplace, which she has now found out. She is threatening to sue the company because the cell phone was utilized to promote the affair. Can she do this?

Posted  04-09-2013

Ann Kiernan replies:

Not successfully, anyway. A winning lawsuit depends on liability. Liability depends on a having a duty to do—or not to do—something. Employers have no obligation whatsoever to police their employees’ love lives (except to prevent and correct any sexual harassment or discrimination).

While most states abolished such laws long ago, a handful of states still have “alienation of affection” or “criminal conversation” in the statute books. The only recent case I could find on the subject is Smith v. Lee, 2007 U.S. Dist. LEXIS 78987 (W.D.N.C. 2007), where a man whose wife had an affair with her boss sued both the paramour and the employer. The federal court threw out the claim against the employer, saying: “

[T]his Court is loathe to apply vicarious liability against employer for torts of alienation of affection or criminal conversation. It is simply unreasonable to expect businesses to regulate the intimate and personal affairs of their employees…NC public policy disfavors the extension of marital torts to employers. Torts of alienation of affection and criminal conversation are private and personal. Holding employers to owe a duty to the spouses of their employees would extend the potential liability of employers infinitely.”

Thanks for the interesting question.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.


About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.