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 was done.
In 1986, the Meritor Savings Bank v. Vincent, the United States 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 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.
There could be harassment in various other form 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.
Protections afforded to employees due to their religion is different than other types of discrimination. Religious discrimination protections are like two rails that an employer must follow: one that requires a de minimus 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 which are not job-related or are only minimally job-related can lead an employer to run afoul of this protection.
This statute is a significant 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 to refrain from engaging in conduct or communications which 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 individuals 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.
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, discussed below. A novice mistake an employer can make is to produce personnel files to the EEOC which 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.
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 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 it 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 employees’ 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 an 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 a 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 they are an alcoholic or drug addict and that they need to attend classes to help them 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. A smart employer does not make that situation worse by taking it upon themselves to learn every intimate detail of that employee’s life. 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.