Privacy Issues in the Workplace

Indirect public disclosure can also support a claim for violation of privacy rights. In the unpublished Ninth Circuit case Tecza v. University of San Francisco 15 , the university promised in its Student Handbook to keep all information about a student’s disability confidential. However, university official discussions in front of others revealed that the student was receiving testing accommodations. This in essence revealed that the student had a disability. Thus, the court permitted a lawsuit to move forward on the theory of breach of contract and tortious disclosure of private facts. The court also suggested that the lower court should also have considered a claim for violation of the student’s constitutional right of privacy.

NOTE : Public agencies should be very careful to treat all medical information confidentially. Supervisors and managers should only be informed of restrictions on the work or duties of employees with disabilities and necessary reasonable accommodations. Co-workers should not be informed of the nature of the disability affecting an employee. Divulging medical information can violate a number of California and federal laws, including the Fair Employment and Housing Act, the California Family Rights Act, the Confidentiality of Medical Information Act (CMIA), and the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

A publication is privileged and is not actionable if it is made by someone with an interest in the matter to another person also holding an interest in the matter. 16 Courts have found an interest exists between an employer and its employees, and between a prior employer and a prospective employer. 17 The privilege to speak can be lost, however, if malice exists in the communication or if the publication goes beyond what is necessary to satisfy the mutual interest that creates the privilege. In contrast, a claim of intrusion upon seclusion does not involve a publication, but rather an unreasonable and highly offensive intrusion upon a person’s solitude or private life. 18 These types of claims can arise when an employer requires an individual to divulge information about himself or herself or when an employer conducts an investigation of an employee. To determine whether an intrusion is reasonable, courts examine factors including whether the means used are abnormal and whether the purpose for intruding is proper.

Not all intrusions are improper. For example, no right of privacy exists for matters or things within the public domain or in places one typically expects others to be. 19

The final type of privacy tort is seldom, if ever, asserted in the employment relationship. It involves use of someone’s name or likeness for commercial purposes without his or her consent.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 11