Privacy Issues in the Community College Workplace

Sample Employer Statement of Confidentiality

(Employer) objects to producing the records or files of (Employee) on the grounds that such records or files are protected by the employee's right to privacy. Without waiving these privacy rights, (Employer) will supply the requested information with the understanding that (requesting agency) will keep these records confidential. Any failure to do so on the part of (the agency) or any of its employees will be the responsibility of (the agency), and by acceptance of these records, (the agency) agrees to maintain the records' confidentiality and hold the (Employer) harmless from any unauthorized disclosure.

University of Pennsylvania v. EEOC 378 In this case, the United States Supreme Court held that the University of Pennsylvania was required to comply with a discovery request from the Equal Employment Opportunity Commission (EEOC) for the tenure review files of a professor who filed a discrimination claim with the EEOC, and against the University. The professor, Rosalie Tung, alleged that she had been denied tenure because the University did not want a Chinese-American woman in their school. She alleged that her qualifications were equal to or better than five named male faculty members who had received more favorable treatment. The EEOC undertook an investigation of Tung's charge and requested a variety of information from the University. The University refused to provide Tung's tenure-review file, and the tenure files of the five male faculty members identified in the charge. The University claimed that “confidential peer review information” should not be released, because it would destroy the ability to give candid evaluations of young professors for fear of being dragged into a lawsuit. The Supreme Court held that a charging party need only make a showing of relevance before peer review materials pertinent to charges of discrimination in tenure decisions must be disclosed. A higher standard, the Court held, would give employers a weapon to frustrate investigations.

4. S UBPOENAS FOR P ERSONNEL R ECORDS A frequent question for employers is whether to release personnel records pursuant to a subpoena or other form of discovery demand. The Legislature has addressed privacy concerns relating to producing confidential records of others pursuant to the judicial subpoena process. California Code of Civil Procedure Section 1985.3 sets forth some specific employee notification requirements. These requirements are generally applicable to public sector personnel records (except for peace officers, as discussed infra ) when such records are exempt from disclosure under the Public Records Act. 379

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 113