A&E Network’s short-lived reality show, Neighbors with Benefits—focusing on residents of a suburban neighborhood in Ohio who participated in partner swapping—featured a woman who lost her job when her employer learned of her extramarital activities. But is it actually legal to get the boot from your job if your open relationship becomes common knowledge?
Is non-monogamy a legitimate reason for dismissal?
In many states, employment is considered at-will, which means an employee can be fired for any reason, at any time, and for no reason at all. “An employer does not have to like the employee or his or her lifestyle, and can fire the person if they dislike the person or the lifestyle,” says Albert Rizzo, an attorney in New York City. While Rizzo makes it clear that this issue can vary from state to state, “It can generally be said that it is not illegal to fire someone solely for having an open relationship.”
And if it’s legal to give someone the boot because of their lifestyle, then there is no legal option to contest the termination. You can always try to fight back against an employer, citing discrimination, but that is unlikely to get you very far. “Illegal discrimination means an employer has treated an employee who is in a ‘protected class’ differently from other employees,” says Rizzo. “The relevant question is whether persons in an open relationship are considered a ‘protected class’—and they are not. The law protects employees against discrimination on the basis of race, gender, religion, national origin, etc.”
That list does not include people who choose to have open relationships.
Do open relationships compromise your job efficacy?
Some people classify open relationships as a form of adultery, but adultery is not a firing offense (outside of the military). However, “If an employee’s lifestyle affects or interferes with his or her work performance, then it could certainly complicate the employment situation,” says Rizzo.
Do you represent a brand? Are you the face of a corporation? Does your behavior outside of working hours influence how others will perceive you on the job—or how they perceive your employer? If the answer to any of these question is “yes,” then how you conduct yourself, whether in the office or within your personal life, can absolutely affect your job and your employer. The reputation of, for example, a teacher, pastor, doctor, or any authority figure—and the entity that employs them—could easily be called into question if that person’s participation in an open relationship became public.
Is it discrimination or not?
Avvo’s recent survey on relationships, marriage, and divorce found that some people are morally comfortable with non-monogamy while others are not—and the attitudes of the two groups differ strongly. If your boss happens to be in the naysayer faction, and learns about your open relationship, dismissal from your job might not be far behind—and your employer is totally within his or her rights to fire you.
In May 2016, a New York City yoga instructor filed a discrimination lawsuit claiming that she was fired from her job for being “too cute” because her boss’s wife considered her a threat to their marriage. But the case was thrown out because the judge stated that there wasn’t any evidence showing that she was fired “because of her status as a woman.” Gender discrimination—real. Hotness discrimination—no such thing.
While this situation is a far cry from participation in an open relationship, it’s a perfect example of the employer’s rights in at-will employment states. Ultimately, an employer’s opinion is what matters most. “From the employer’s perspective, they do not have to accept [an open lifestyle] and cannot be legally liable for firing the employee on this basis,” says Rizzo.
Read more about employment law and get help from an attorney.