Love Can Get You Fired: Dating is Not a “Recreational Activity” Within the Meaning of New York’s “Lawful Activities” Law

According to one source, four out of 10 employees have dated someone at work. This, according to that article, “makes perfect sense [because] [t]here are more singles in the workforce than ever before, spending more than half their waking hours on the job[ and] [w]ith co-workers there’s a familiarity and commonality, not to mention proximity and convenience.”

What if you suffer an adverse employment action (e.g., demotion or termination) simply because of your relationship with a co-worker? Do you have any legal recourse?

Under New York law, “absent a Constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer’s right at any time to terminate an employment at will remains unimpaired.” See McCavitt v. Swiss Reinsurance Am. Corp., 237 F.3d 166, 168 (2d Cir. 2001).

One statute that restricts an employer’s ability to terminate an at-will employee is New York Labor Law § 201-d, the so-called “lawful activities” law. That statute provides, in part:

2. Unless otherwise provided by law, it shall be unlawful for any employer … to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of: … c. an individual’s legal recreational activities outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property. (Emphasis added.)

The statute, in turn, defines “recreational activities” as

any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.

Courts have concluded that romantic dating is not a “recreational activity” as that term is used in the statute.

For example, in McCavitt v. Swiss Reinsurance Am. Corp., 237 F.3d 166, 168 (2d Cir. 2001), plaintiff (one of defendant Swiss Re’s officers) was involved in a personal relationship with an officer of Swiss Re. The two dated and spent time together after working hours. Furthermore, plaintiff alleged

that even though [t]he personal relationship between plaintiff and [the officer] has had no repercussions whatever for the professional responsibilities or accomplishments of either and Swiss Re … has no written anti-fraternization or anti-nepotism policy, the plaintiff was passed over for promotion and then discharged from employment largely because of their dating.

The court concluded that the plaintiff had no recourse:

We agree with the district court that our decision in this case is governed by the Third Department’s decision in [State v. Wal-Mart Stores, Inc., 207 A.D.2d 150, 621 N.Y.S.2d 158 (3d Dep’t 1995)]. … We, like the district court, find no persuasive evidence-nothing in logic, the language of § 201-d, its legislative history, or New York state case law-that leads us to conclude that the New York Court of Appeals would hold that romantic dating is a “recreational activity” under New York Labor Law § 201-d(1)(b) contrary to the holding of Wal-Mart.

The court disagreed with two district court decisions – Pasch v. Katz Media Corp., No. 94 Civ. 8554, 1995 WL 469710, 1995 U.S. Dist. LEXIS 11153 (S.D.N.Y. Aug.8, 1995) (deciding that New York Court of Appeals would deem co-habitation to be a protected recreational activity under § 201-d); Aquilone v. Republic Nat’l Bank of New York, No. 98 Civ. 5451, 1998 WL 872425, 1998 U.S. Dist. LEXIS 19531 (S.D.N.Y. Dec.15, 1998) (holding that an employee’s friendship with another person, where contacts between them took place off the employer’s premises and not on the employer’s time, was protected recreational activity under § 201-d) – that suggested a contrary result.

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