concurring:
Sister Mary Lauretta, a Roman Catholic nun, once counseled:
To be successful, the first thing *169to do is fall in love with your work.
She should, of course, now have to add:
Just don’t fall in love at work.
Although I concur in my colleagues’ decision, I do so grudgingly. We have been unable to find in the record before us persuasive evidence that the New York Court of Appeals would reach a conclusion different from that reached by the Appellate Division, Third Department, in Wal-Mart. I harbor the hope that, if given the chance, it would.
On the record before us, it appears that Jess McCavitt and Diane Butler, both unmarried, committed no crime (either religious or secular), and their relationship (the romantic aspect of which was explored solely outside the office, during non-working hours) adversely affected neither their job performance nor the business interests of Swiss Re.
Ms. Butler, however, made one fatal mistake — she told Swiss Re’s Senior Vice President of Human Resources (who apparently serves as the Senior Vice President of Employee Relations as well), that she was involved in a personal relationship with Mr. McCavitt. Immediately, what had been nobody’s business became everybody’s business. And, as it is no secret that is known by three, Mr. McCavitt’s relationship with Swiss Re came to an abrupt end.
Concededly, New York continues to adhere to the common-law rule of employment-at-will. Major incursions, however, have been made into that hoary doctrine, not the least of which is N.Y. Labor Law § 201-d, barring employers from firing workers because of “legal recreational activities outside work hours, off of [sic] the employer’s premises and without use of the employer’s equipment or other property.” Not especially enlightening is the statute’s definition of recreational activities as “any lawful, leisure-time activity ... which is generally engaged in for recreational purposes, including, but not limited to sports, games, hobbies, exercises, reading and the viewing of television, movies and similar material.”
Romance has a distinctly distinguished history of originating in office contacts. It is one of the most elichéd of movie plots— see notably the Katharine Hepburn and Gig Young (or, if you prefer, Spencer Tracy) roles in the holiday classic “Desk Set.” As Justice Frankfurter observed, “[Tjhere comes a point where this Court should not be ignorant as judges of what we know as men.” Watts v. Indiana, 338 U.S. 49, 52, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949).
I fully endorse the reasoning of Justice Paul J. Yesawich, a most learned and distinguished member of the Appellate Division, Third Department, who wrote in his dissent in Wal-Mart:
In my view, given the fact that the Legislature’s primary intent in enacting Labor Law § 201-d was to curtail employers’ ability to discriminate on the basis of activities that are pursued outside of work hours, and that have no bearing on one’s ability to perform one’s job, and concomitantly to guarantee employees a certain degree of freedom to conduct their lives as they please during nonworking hours, the narrow interpretation adopted by the majority is indefensible.
207 A.D.2d at 153, 621 N.Y.S.2d at 160. Nevertheless, I agree with my colleagues that we are bound by the majority opinion in Wal-Mart.
If, when deciding to protect “recreational activities,” the Legislature saw fit to protect an employee’s right to engage in such historically revered activities as riding a motorcycle and hang-gliding, it certainly should have extended protection to the pursuit of a romantic relationship with whomever an employee chooses — even a fellow, unmarried employee — outside the office, during non-working hours. This is compellingly so in today’s society, where ostracizing anyone associated with one’s office from the acceptable dating pool *170would doom the majority of the population to the life of a Trappist monk.
It is repugnant to our most basic ideals in a free society that an employer can destroy an individual’s livelihood on the basis of whom he is courting, without first having to establish that the employee’s relationship is adversely affecting the employer’s business interests. Lest our faith in this free society be dampened, it is my sincerest hope that, if given the chance, the New York Court of Appeals will find that the necessary protection lies within N.Y. Labor Law § 201-d. If not, may the State Legislature amend the statute accordingly.