Privacy Issues in the Workplace

cause of action for public disclosure of private facts as facts can be just as widely disclosed through oral media as through written media.

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 In the unpublished Ninth Circuit case Tecza v. University of San Francisco 15 , the university promised in its Student Handbook to keep all information about a student’s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 Ninth Circuit 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 protected by the “common interest privilege” 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 In order for this privilege to apply, the communicator and the recipient must have a common interest, the communication must be made without malice, and the statements must be reasonably calculated to further that common interest. 17 Courts have found an interest exists between an employer and its employees, and between a prior employer and a prospective employer. 18 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. Civil Code section 47(c) defines privileged publications and broadcasts that can be used as a defense to claims of defamation, including the common interest privilege. AB 2770 expanded the categories of privileged communications not subject to defamation claims to include the following: (1) complaints of sexual harassment made by an employee, without malice, to an employer based on credible evidence; (2) communications between the employer and interested persons, without malice, regarding a complaint of sexual harassment; and (3) communications from an employer, without malice, regarding a current or former employee to a prospective employer of that employee to note if they would rehire the current or former employee and whether such decision is based upon the employer’s determination that the employee engaged in sexual harassment. The reference to “without malice” is generally interpreted to mean that the information disclosed must be objective and factual, and not based solely on an opinion.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 11