Can you get fired not for having an affair at work – but just because someone else thinks the boss has “personal feelings” for you?‎

Maybe.  A California case is testing the idea that you can get in trouble at work – or even fired – for having an affair even if you’re not having an affair.  Even if, in fact, you’re not actually doing anything that would make someone think you were having an affair.  Can you recover damages if you’re fired under these circumstances?  We’ll have to see, as explained below. 

Let’s start at the beginning.  It’s generally considered good career advice to keep your love life and your work life separate.   For their part, companies often encourage their employees to do so.  Others ask coworkers in relationships to sign “love contracts,” which may or may not mitigate the ultimate impact if the relationship goes awry. 

But sometimes, an executive can get into trouble even if her boss just suspects she’s having an affair with another boss.  How can this come about, you ask?  The answer is in a complaint filed earlier this month in California, entitled Alexander v. The Original Footwear Company. 

The plaintiff, Lexi Alexander, is “an Academy Award nominated director and filmmaker” with “numerous film credits to her name,” according to her complaint.  Original Footwear Company is a California business whose mission as  described on its website is “to make a better boot for Law Enforcement, Military, EMT’s and others who work for a living.”   It is owned by two other defendants, husband and wife Kevin and Jennifer Cole.  Alexander asserts causes of action for breach of contract, fraud, intentional interference with economic relations, and unjust enrichment, among others.  Curiously, she does not allege wrongful termination – a count we’ve discussed rather extensively. 

Alexander was hired by Kevin Cole as the “Senior Vice President of Marketing,” and, she alleges, she immediately revamped the company’s website, “developed a multifaceted marketing plan…including directing a number of commercials” for the company, and “dramatically increased the company’s exposure and profile.”  The Coles allegedly thought Alexander was doing great work and wanted her to stay longer than she had initially intended, because just one month after she was hired, they provided her a Land Rover on a 36-month lease to use.  The following month, the complaint continues, Alexander made appearances for the company at trade shows around the country, wrote, produced and directed more marketing videos, tripled the company’s social network followers, and “dramatically increased traffic to the website, sales, and profitability for the company.” 

Wow, all that in two months?  Sounds like Alexander was off on a great upward trajectory at Original Footwear.  It turns out, though, her upward path was more like that of a shooting star: somewhere along the line, something had gone dreadfully wrong and it had to come crashing down.  At least in the eyes of Jennifer Cole. 

In mid-May of this year – almost exactly two months after Alexander was hired in mid-March – Kevin Cole emailed Alexander, telling her wife Jennifer had “ ‘flipped out’ in a jealous rage and was accusing [Kevin] of having personal feelings” for Alexander,” and instructing her husband to give Alexander the old heave-ho.  The complaint adds, somewhat curiously, that the next day, the Coles “fraudulently created an invoice” from Alexander, apparently as a way to minimize any ultimate compensation they might be liable to pay her for her work. 

What’s missing in this complaint is any allegation of an actual affair between Alexander and Kevin Cole, or even an allegation of an untoward relationship between them that could make an observer think that they were having an affair.  Alexander was, according to her complaint, fired just because one of the company’s co-owners thought that the other owner had “personal feelings” for her.  Alexander asks for her unpaid compensation, along with the standard damages sought in these types of cases for her emotional distress, breach of her employment contract, and other theories. 

Now, it’s very likely that there is more to this story.  So far, we’ve only heard from Alexander.  Surely the Coles will have an interesting side of this tale to tell when they respond to this complaint, and we’ll be watching this case closely. 

In the meantime, what can we learn from Alexander’s complaint?  This doesn’t pigeonhole easily into the types of claims that could arise out of a relationship between co-workers.  For example, “quid pro quo” sexual discrimination – where “tangible job benefits [are conditioned] on acquiescence to requests for sexual favors or other conduct of a sexual nature,” as a California court in Priest v. Rotary defined it – can give rise to a sexual discrimination claim under Title VII of the Civil Rights Act of 1964.  But we don’t have that here, because we don’t have even an allegation of “conduct of a sexual nature” – only perhaps Jennifer Cole’s jealousy. 

Could a “love contract” have prevented this outcome?  Maybe, but likely not.  The “love contract” is not the “love boat,” but like that great 70’s era TV show it is also apparently “exciting and new”: a Westlaw search finds only three cases which have even mentioned this type of bargain, and they do so only in passing.  Under such an agreement, the employees agree – either formally or informally (like in this model letter addressed "Dear [insert name of object of affection]" -- to act professionally in the workplace, and acknowledge that their relationship is not harassment.  But somehow, I can’t see Jennifer Cole even agreeing to hire Alexander if hubby Kevin told her he wanted to have a “love contract.” 

So we’re going to have to see how Alexander v. Original Footwear plays out. Hopefully, we’ll learn something about whether or not you can be fired even if s co-worker only has “personal feelings” for you. 

• Breach of Contract