NCJ Number
86432
Journal
FBI Law Enforcement Bulletin Volume: 51 Issue: 10 Dated: (October 1982) Pages: 24-31
Date Published
1982
Length
8 pages
Annotation
This article examines judicial decisions relevant to the right to privacy in sexual conduct, and implications are drawn for the development of law enforcement agency policy bearing upon the sexual activity of employees outside of work.
Abstract
An analysis of U.S. Supreme Court and lower court cases bearing upon the right to privacy in consensual sexual activity reveals various interpretations of the law. While it is difficult to make definitive predictions about how courts will resolve employee privacy claims in future litigation, there is some general agreement. While a law enforcement employee cannot be required to surrender constitutional rights as a condition of employment, the agencies can restrict to some degree the constitutional freedoms of their employees because of the peculiar needs of the employer-employee relationship. The degree of restriction permissible depends on the nature of the right affected; e.g., if a fundamental right such as freedom of speech is infringed, the government would be required to show a compelling justification. However, if the right is not fundamental, such as the choice of hair length, then only a rational reason is required to justify a departmental regulation. The courts are divided over the issue of whether an employee's private consensual sexual conduct is entitled to protection as a fundamental constitutional right. Before discipline is used on the basis of a restrictive policy, the agency should determine (1) if the conduct is criminal within the jurisdiction of the agency, (2) whether the conduct was private and discreet or open and notorious, (3) whether the conduct substantially reduced public confidence in the agency, (4) whether the conduct damaged agency efficiency or morale, and (5) whether the conduct impaired the employee's ability to perform work requirements. Seventy-four footnotes are listed.