Policing Infidelity: The Circuit Split on Public Employer’s Right to Discipline for Off-Duty Conduct

Bender’s Labor & Employment Bulletin April 2018

David W. Garland, Member of the Firm, and Amy B. Messigian, Senior Attorney, in the Employment, Labor & Workforce Management practice, in the firm’s New York and Los Angeles offices, respectively, co-authored an article in Bender’s Labor & Employment Bulletin, titled “Policing Infidelity: The Circuit Split on Public Employer’s Right to Discipline for Off-Duty Conduct.”

Following is an excerpt (see below to download a full version in PDF format):

The Fourteenth Amendment prohibits a state from depriving any person of “life, liberty, or property, without due process of law.” The Supreme Court has described two strands of the substantive due process doctrine. One strand protects an individual’s fundamental liberty interests, while the other protects against the exercise of governmental power that shocks the conscience. A fundamental right or liberty interest is one that is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” The government may only infringe fundamental liberty interests if the infringement is narrowly tailored to serve a compelling state interest. Conduct that shocks the conscience, on the other hand, is deliberate government action that is “arbitrary” and “unrestrained by the established principles of private right and distributive justice.” This strand of substantive due process is concerned with preventing government officials from “abusing their power or employing it as an instrument of oppression.”

In 2003, the United States Supreme Court found Texas’ consensual anti-sodomy law unconstitutional in the watershed decision of Lawrence v. Texas. The Court opined that intimate consensual sexual conduct was protected by substantive due process under the Fourteenth Amendment.

While it may be argued that Lawrence pronounced a fundamental right to sexual privacy, many courts have refused to interpret Lawrence so broadly, finding instead that Lawrence merely invalidated an arbitrary and oppressive anti-sodomy law. This conflict has caused a circuit court split between the Ninth, Fifth and Tenth Circuits in the context of whether a public employer may discipline an employee over his or her off-duty sexual behavior or whether such conduct is off limits unless it is narrowly tailored to serve a compelling state interest. While the Tenth and Fifth Circuits have upheld the discipline of law enforcement officers whose off-duty sexual conduct violated their agencies’ codes of conduct, on February 9, 2018, the Ninth Circuit ruled that off-duty sexual conduct is protected by the Constitution in Perez v. City of Roseville and is therefore off limits from disciplinary action in the absence of a compelling state interest.

The conflict between the circuits is understandable considering the differing views on the meaning of Lawrence. Moreover, the conflict is unlikely to be resolved unless and until the Supreme Court clarifies whether a fundamental right to sexual privacy exists, such that the lower courts know whether to apply strict scrutiny or the more deferential rational basis test to laws or practices that infringe on an individual’s sexual privacy.