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Home / Expert Opinion / Workplace Issues: Why anti-fraternization policies are disfavored

Workplace Issues: Why anti-fraternization policies are disfavored

Lindy Korn

An employer’s policy forbidding continued employment after an employee marries his or her supervisor does not violate civil rights laws and an African-American employee failed to offer sufficient evidence of disparate treatment, the U.S. Court of Appeals for the Sixth Circuit held, (Ayers-Jennings v. Fred’s Inc., 6th Cir., No. 10-6228, Feb. 13).

The result of this case is to alert employees to make sure that they are not in the supervisory chain of their soon-to-be spouse before marriage in order to secure continuation of their employment. To avoid unnecessary liability, employers may want to rethink the value of such policies.

Dollie Ayers began working at Fred’s in 1979. Fred’s is a retail chain with its headquarters in Memphis, Tenn., and stores across the southeastern United States. In 2006, Ayers began dating her future husband, Willie Jennings. Jennings was one of approximately 10 area managers in the Distribution Center, a Fred’s warehouse in Memphis.

Ayers was a strategy control clerk — a clerk who redirected misdirected merchandise within the same warehouse. Jennings was not Ayers’ direct supervisor, but under the organizational structure in the warehouse, divided into at least four areas, it appears any warehouse employee could fall under the supervision of any area manager, depending on the circumstances.

Prior to their wedding, both Jennings and Ayers mentioned their wedding plans to their supervisors, none of whom cautioned them about the impact of their marriage on their employment status.

After their wedding and honeymoon, which senior vice president Reggie Jacobs had been unaware of, he called them into his office and made the determination that there was a problem since their marriage brought them into violation of the company’s anti-fraternization policy, and that one of them would have to resign. There was no discussion at the time; Jacobs simply gave them 24 hours to talk it over and decide.

The anti-fraternization policy in relevant parts provided:

(4) No relative shall work in the same department except as approved in advance by the vice president of personnel;

(5) One relative is not placed under the supervision of another; and

(7) Should any two employees marry each other after working for the company while single, there is no requirement under this policy that one of them resign. However, items 4 and 5 would be in effect.

Fred’s made an inquiry into the possibility of transferring Ayers-Jennings to a different position in the corporate division, but there were no positions available for which she was qualified. She was discharged on July 31, 2007. Feeling unfairly forced to resign, Ayers-Jennings commenced an action asserting race discrimination, based on more favorable treatment of similarly situated employees.

The court held that there is no evidence that Fred’s ever allowed married couples of any race or color to continue employment in the warehouse or corporate division under circumstances where one was subject to the possibility of supervision by the other. Because of the dissimilarities between plaintiff’s situation and those of her comparators, the fact that Fred’s allowed each of the comparable couples to continue their employment after marriage does not give rise to a reasonable inference that less favorable treatment received by the plaintiff was motivated by race discrimination.

The decision also recognized that no reasonable person would disagree that plaintiff deserved better. A loyal employee of some 28 years was given 24 hours to decide whether she or her husband would resign — not because of misconduct of any kind — but because of a blessed event: their matrimonial union. A cruel irony, indeed.

Yet, though we fail to understand such inflexible adherence to company policy, the civil rights laws do not give the courts license to micromanage the workplace in the absence of evidence of unlawful discrimination. 

Although the employer avoided liability on the basis of race discrimination, the loss of a veteran employee cannot be seen as a win for the employer. The anti-fraternization policy needs to have better guidelines or broader notice and transfer opportunities to allow the employer to operate by keeping valued employees.

The strictly adhered to anti-fraternization policies may not actually serve any purpose, if the implementation is viewed as unfair, causing workplace disharmony and resentment.

And then, what happens if the vice president has an affair with a subordinate, and the anti-fraternization policy remains dormant?

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at lkk75atty@aol.com or (716) 856-KORN (5676).

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