Employers should recognize an employee’s zone of privacy in the workplace. Business owners and managers need to understand that while they have their employees’ attention for much of the workday, there are limits. An employer must recognize how difficult it is to come to work day after day with the same individuals. Employees are often asked to accomplish difficult tasks. Employees are often required to perform these tasks in a very short time period. It only compounds the pressure and stress of everyday work life to have a boss who insists upon knowing every detail of his or her subordinates’ lives. That is often a warning sign, a red flag, for trouble. If an employer is intruding upon the subordinate’s life, I often see this as a sign there is going to be some type of workplace complaint. In fact, there are several laws that caution against such behavior.
Laws that Promote Employee Privacy
- Sexual Harassment. Years ago, I was asked to investigate claims of sexual harassment by female subordinates against the company president. I learned that the company president thought it was appropriate to discuss the details of his sex life with his wife with female subordinates, including his own secretary. This misguided company president thought this could not be considered sexual harassment because he was not making an inappropriate approach to these female subordinates, but rather talking about intimate details of his own sex life with his wife. Of course, the female subordinates felt quite the opposite. They were offended and had appropriate claims of sexual harassment in the workplace. The investigation was completed, and appropriate sanctions and education were done.
In 1986, in Meritor Savings Bank v. Vincent, the U.S. Supreme Court adopted regulations promulgated by the EEOC in 1980, which laid out a new form of sex discrimination called sexual harassment. 477 U.S. 57 (1986). In Vincent, like many cases in this area, the supervisor and subordinate had a relationship. These types of relationships at the workplace often turn into LGW or “love gone wrong.” The relationship in Vincent clearly qualified in this category.
There have been numerous other lawsuits in which love gone wrong has led to the court widening the range of sexual harassment. Sexual harassment in the workplace is one area where clearly the employee zone of privacy has been invaded. The results are often catastrophic to the employer.
This is not to say that there are not loving relationships established and marriages created out of workplace romances. However, this is an area fraught with danger. Employers must make sure that their managers are thinking clearly and respecting their employees’ zone of privacy.
- Other Types of Harassment. There could be harassment in various other forms such as race, ethnicity, disability, religion or age. Similar to sexual harassment cases, these lawsuits portend a failure of the employer to institute a rigorous standard among its supervisors that there is a limit to the interaction they should have with their subordinate employees. Respecting the employees’ zone of privacy means not telling racist, ageist or disability-related jokes. Respecting employees’ privacy means that supervisors and managers must be careful expressing political views or commentary on national and international events. These types of communications often result in trouble.
- Religious Discrimination. Protections afforded to employees due to their religion is different from other types of discrimination. Religious discrimination protections are like two rails that an employer must follow: one that requires a de minimis accommodation to employees who hold certain beliefs and one that prohibits discriminating against employees in the terms and conditions of employment.
Employers must be careful not to try to evangelize their employees. Such activity often leads to religious discrimination claims. By the same token, enforcing some dress or appearance standards that are not job-related or are only minimally job-related can lead an employer to run afoul of this protection.
- HIPAA. This statute actually has the word privacy included within it and therefore it is clearly a form of protection for the employees’ zone of privacy. For those covered entities, such as employers who provide some type of group health insurance plan, medical privacy is paramount. 42 USC 1320d-6 codifies the disclosure of individually identifiable health information as illegal. Even for those who are not covered by HIPAA, it is always a good idea for employers to refrain from engaging in conduct or communications that invade the privacy of their employees, especially when it comes to medical conditions.
“Protected Health Information” is safeguarded by HIPAA. This does not mean that any type of health-related information must be safeguarded. On the contrary, what HIPAA really protects is divulging protected health information that is used in insurance claims. However, the standards of HIPAA are being used to broaden privacy rights of individuals, which can clearly apply to the workplace as well.
Recently, HIPAA has been used in state court jury trials for claims under the common law tort of invasion of privacy. Plaintiffs have recovered over seven figures where their medical information has been divulged. Those cases are warnings to employers not to violate their employees’ medical privacy.
How might this occur in the workplace? Perhaps a company president learns that a particular individual is pregnant and decides to take it upon himself to send an email to all of the employees. Maybe that employee did not wish for that information to be spread throughout the workplace. Perhaps there are particular reasons why she wanted the information to remain private. Such a claim might include a claim of invasion of privacy as well as a sex discrimination claim.
The employees’ zone of privacy is amplified by HIPAA. Employers are wise to be careful when dealing with employees’ medical issues.
- The Family Medical Leave Act (FMLA) and Genetic Non-Discrimination Act (GINA). Provisions in the FMLA (29 C.F.R. 825.500 g) and GINA (29 C.F.R. 1635.9) require employers to keep medical information confidential. Employers are to keep medical information in a separate locked file apart from the regular personnel files. Such a provision also exists under the Americans With Disabilities Act (ADA), discussed below. A novice mistake an employer can make is to produce personnel files to the EEOC that include medical information protected by the FMLA, GINA and the ADA.
Not only do employers learn protected health information regarding their employees but also regarding their immediate family members. Extra caution should be given to protect that information. An invasion of privacy lawsuit by a spouse of an employee would not be subject to a workers’ compensation protection, and there could be large liability to an employer for exposing that information.
The only exceptions to these restrictions are the following:
- Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations.
- First aid and safety personnel may be informed (when appropriate) if the employee’s physical or medical condition might require emergency treatment.
- Government officials investigating compliance with FMLA (or other pertinent law) shall be provided relevant information upon request. 29 C.F.R. 825.500 f.
- The Americans with Disabilities Act. As discussed above, under the ADA, health information is to be kept in a separate medical file, not included within the personnel files. in a separate locked cabinet and only provided to those with the need to know. Individuals with the need to know might include the company nurse and the HR director. However, the owner of the company or the president of the company would not necessarily have the need to know and therefore should not gain access.
There is a major caveat regarding the employee zone of privacy as it relates to the ADA. This law requires that once an employee has established that he or she is a qualified individual with a disability, the employer is required to enter into the “interactive process” in order to determine what reasonable accommodations might be required. This interactive process may require some additional knowledge regarding the employee’s health condition.
For example, if an employee with cerebral palsy asks the boss for a reasonable accommodation related to that disease, certainly the employer may be in a position where it must learn more about the limitations caused by disease. However, word of warning: the employer needs to be focused on the essential functions of the job and physical limitations of the employee, not the details of particular illness or disease. For example, questions such as “How long have you suffered from cerebral palsy?” or “Was this a hereditary condition?” are really irrelevant to whether the employee can perform the essential functions of the job with or without reasonable accommodations and what those reasonable accommodations might be. The focus needs to be upon the physical tasks the employee can and cannot perform.
Let’s take another example. Suppose an employee says to his supervisor that he is an alcoholic or drug addict and that he needs to attend classes to help with that problem. An in-depth discussion regarding the drugs taken or the reasons for the alcoholism are really irrelevant, and more significantly, intrusive upon that employee’s privacy. What is relevant to the employer is that the employee can perform the essential functions and then, alternatively, what reasonable accommodation (in this case, perhaps treatment through an employee assistance program) the employee is seeking—that is the interactive process and nothing more. This is not an excuse to invade the employee’s health privacy.
Work is very difficult. We are often confined with the same individuals day after day and many times performing monotonous tasks in a difficult environment. Smart employers do not make that situation worse by taking it upon themselves to learn every intimate detail of their employees’ lives. A word of warning: employees will often try to divulge these details to an employer. All supervisors and managers should avoid these types of conversations. This can only lead to trouble, and trouble often leads to lawsuits.