The 2nd Circuit Court of Appeals affirmed in January 2001 a district court ruling that romantic dating does not constitute a "recreational activity" as defined in New York Labor Law §201-d.

The case involves JESS D. McCAVITT v. SWISS REINSURANCE AMERICA CORPORATION. McCavitt appealed a judgment of the United States District Court for the Southern District of New York (Charles L. Brieant, Judge) dismissing the his complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. The complaint was dismissed on the ground that romantically dating a co-worker is not a protected "legal recreational activit[y] outside work hours" under New York Labor Law § 201-d.

Since 1999, McCavitt was involved in a personal relationship with Diane Butler (also a Swiss Re officer). McCavitt and Ms. Butler dated and spent time together after working hours. (At oral argument McCavitt, through counsel, confirmed that by "personal relationship" and "dated," he meant that he and Ms. Butler were romantically involved with one another.)

His complaint about being improperly dismissed alleges that even though "the personal relationship between he and Ms. Butler has had no repercussions whatever for the professional responsibilities or accomplishments of either" and "Swiss Re . . . has no written anti-fraternization or anti-nepotism policy," he was passed over for promotion and then discharged from employment largely because of their dating.

Later Swiss Re filed a motion to dismiss arguing that romantic dating is not a protected "recreational activity" under §201-d. The district court (Charles L. Brieant, Judge) agreed and on that basis granted Swiss Re's motion to dismiss.

The 2nd Circuit Court reviewed the district court's decision to dismiss the complaint for failure to state a cause of action and affirmed the court's judgment. They, like the district court, found no persuasive evidence -- nothing in logic, the language of § 201-d, its legislative history, or New York state case law -- that leads us to conclude that the New York Court of Appeals would hold that romantic dating is a "recreational activity" under New York Labor Law § 201-d(1)(b).

The judgment of the district court was affirmed.

This case is limited to the law of New York but we have included it as a reminder that the interpersonal relationships of employees continue to be a minefield for employers. Stay tuned as romance in the workplace appears to be a hot, steamy and romantic topic oft visited by employees, the EEOC and the courts. Normally in that order.