It might be tempting to hire the man or woman you are dating in times like these. Perhaps the gal answering the phone or the fellow making deliveries is just not working out, and the person you love just lost his or her job. You may be thinking, "Why not keep it in the family?"

Here is why not. If your relationship fails, it may not be legal to end the employment. This sounds horrific, that a "Mom and Pop" operation might be forced to keep going after Mom and Pop are no longer together, but in some states the one forced to leave the small operation could have a cause of action against its owner.

You would be better off in family court. Even in the often female biased family court, the rights of the breadwinner (in Family Law vernacular, "Payor Spouse") are better protected than those of the employer at the Equal Employment Opportunity Commission.

So why the comparison? I make this comparison because, when, as it often does, love crosses socio-economic boundaries, the high income mate may be less reluctant to hire his or her sweetheart than to get married. This is not an objection to the crossing of socio-economic boundaries in affairs to the heart, but quite the contrary. A person finding himself or herself single in middle age is better advised to be "picky" as to sense of humor, chemistry, mutual interests, etc., instead of income. Just do not extend that to a job offer.

Under the laws of this country, you are better off getting married than giving your honey a job. Family Court, even in a rigid no-fault community property state like Nevada, takes into account such factors as the length of a marriage, how much the marital estate increased during that time and whether that increase was the result of active or passive efforts. Spousal support is not even considered for a union of less than five years, and when awarded is generally about half of the difference between incomes for half the length of the marriage. Yes, it is a big chunk of change but a manageable chunk, and a predictable chunk.

Under 42 USC 2000e et seq, the Civil Rights Act of 1964, commonly known as Title VII, it is unlawful to terminate a person's employment because a personal relationship has come to an end. It is considered sexual harassment, even if the relationship was consensual and even if it was the only reason the job was offered to begin with. This is why many companies have policies that will terminate a manager or supervisor for "fraternizing" with a lower level employee.

The amount of damages are endless, as he or she is entitled to the current salary up until the time of the judgment, and reinstatement. The emotional angst of having to work besides a person you had been intimate with, consensuality of no consequence, does not exempt your company from its duty not to make employment decisions on this basis. To legally terminate the employment of a person who can make a presumptive showing of a discriminatory reason, such as no longer dating the companies owner, the company must show a "non-pretextual" reason. In most circuits, even evidence discovered after the discharge, such as falsification of a resume, is not adequate grounds if the real reason for the discharge was illegal. The employee can also get attorneys' fees. The employee may not even need to interest a plaintiffs' attorney in taking the case on contingency, but can file a complaint with the Equal Employment Opportunity Commission, which can then file suit under its own behalf.

Fortunately, Title VII only applies to companies with 15 or more employees, but the states have similar statutes that requires various, and often lower, numbers of employees requires for an employee to bring an action under this statute. Title VII makes clear that it does not exempt any person from liability under similar State statutes, 42 USC 2000e-7.

It would be particularly tough to find a "non-pretextual" reason for the discharge from a position that was pretextual to begin with, and this can happen for many reasons. Boss Arny met Receptionist Katy on a flight from Oregon to Austin, and they hit it off. She was going to visit a friend, he was returning from a sales convention. A year later, he'd like her to move to Austin but her joint custody order from the last marriage requires her to get Court permission to leave Oregon. All the Oregon Family Court is asking for is a reason other than avoiding visitation by the natural father. So rather than tell the judge that she'd like to go live with her boyfriend, could he just hire her, say, to do some data entry and answer the phones?

Arny may not realize it, but if things do not work out with Katy in Austin, he is looking at a much bigger judgment for the discharge than he would if they married and divorced. Katy may get back pay from whenever the case goes to judgment, even if the job only lasted a month.

This would never happen in Family Court.

If it was later learned that the old friend that Katy was visiting on that first flight was really her lesbian lover, and that she allowed Arny to seduce and hire her for the sole and specific purpose of pleasing that Oregon Family Law judge, it would not help Arny in defending a case brought by the EEOC. The "unclean hands" defense is inapplicable against the EEOC. Katy would bring her child to Austin, and get paid a lot more from Arny on the job than she would be entitled to as spousal support.

With the DOW plummeting and companies firing loyal employees because they simply can no longer pay them, it might be tempting to hire the person you are living with or dating. Hopefully this article will make a business owner think twice about that treacherous proposal.

Nancy Lord, MD
Attorney at Law

www.nancylordltd.com