Written by Galen T. Shimoda and Jennet F. Zapata
The right to privacy is protected by the California Constitution, as well as the U.S. Constitution and various other statutes. In California, for instance, Civil Code section 56 and Government Code 12940(e) protect medical information. Civil Code section 56 protects the confidentiality of medical information of all persons, including employees, while Government Code section 12940 prohibits employers from asking job applicants, or employees, non-job related inquiries about a mental or physical condition. At times, employees may complain that they feel their employers are invading their right of privacy, but employers also may have a right to certain private, job-related information. This article provides a brief overview of the right to privacy.
In order to prove an invasion of privacy claim in the workplace, a claimant or employee has to show the following: (1) that there was an intrusion upon the person's reasonable expectations of privacy, and 2) that such intrusion was offensive, in light of any justification or other relevant interests. Courts analyze widely-accepted community norms to determine if a particular act can be considered an intrusion upon reasonable expectations of privacy. In the workplace, the reasonableness of privacy expectations is linked to such factors as the identity of the intruder, the extent to which other persons had access to the subject place and whether they could see or hear the claimant, and the means by which the intrusion occurred.
The level of offensiveness is measured by looking into whether the invasion raises up to the level of an "egregious breach" of the social norms underlying the privacy right. For instance, in certain relationships where confidentiality is expected, such as in a doctor-patient relationship, the right of privacy is invaded by a less than public dissemination of information. Protective measures, safeguards, and other alternatives may minimize the privacy intrusion.
Employers may also assert certain defenses that may negate an invasion of privacy claim. For instance, justification or countervailing interests can be a defense. In other words, an invasion is not a violation of the right to privacy if the invasion is justified by a competing interest. For instance, in a seminal case, the Supreme Court of California found that college athletes who participate in sport competitions have a diminished expectation of privacy. There, the athletes were on notice of a drug testing program and had provided consent to be bound by it. Also, the defendant organization was promoting important interests, such as safeguarding the integrity of athletics and promoting the health and safety of the student athletes that were participating in athletics. This justified such intrusive drug testing measures and the Court found no violation of the right to privacy. In a different scenario, the Court also found that a supervisory employee had no reasonable expectation of privacy in pursuing a romantic relationship with a subordinate because the supervisor had a legitimate interest in avoiding potential conflicts of interest and avoiding claims of favoritism or sexual harassment at the workplace. Moreover, consent to intrusions that are reasonable under the circumstances may be a defense as well.
However, employees may rebut an employer's assertion of countervailing interests by showing there are feasible and effective alternatives to the employer's conduct which have a lesser impact on privacy interests. Whether countervailing employer interests justify such intrusions is determined on a case-by-case basis.
Medical exams or medical inquiries are often an issue of contention between employers and employees. Examples can include: requiring an employee to disclose medications that he or she is currently taking or authorizing the employer to acquire information concerning the internal state of the tested individual's body. These requests intrude upon privacy interests protected by the State constitution. In one instance, the Court found that an employer violated an employee's constitutional right to privacy when it obtained detailed private information about the employee from a psychiatrist retained to evaluate whether the employee was entitled to a stress-related disability leave.
Whether there is a breach of the right of privacy requires an analysis of the specific facts involved in each situation. This inquiry becomes even more complicated where employees suffer from disabilities that require accommodations. It is advisable to consult an attorney to discuss if you may have a viable intrusion claim or if you have grounds to defend against an alleged violation of the right to privacy.
If you think you may have potential claims, contact our office to have your claims evaluated.