Privacy Issues in the Workplace

Employment and Housing and the Federal Equal Employment Opportunity Commission often request such files in connection with investigation of discrimination, harassment or retaliation complaints. These requests often have a potential for violating employees’ privacy rights. Failure to cooperate, however, may result in adverse consequences or impact upon the employer. The courts have generally held that an employee’s privacy rights are not violated when his or her personnel records are released to an investigatory agency constrained by confidentiality requirements. For additional protection, any disclosure of personnel files or information of uninvolved employees should be accompanied by a statement regarding confidentiality and a notice of liability of unauthorized disclosure. The statement and notice should read substantially as follows: 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 405 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. 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. 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

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 116