Workplace Privacy, Autonomy, and Dignity in Colorado: Part I

• Publication year: 1998
• Pages: 5

27 Colo.Law. 5 Colorado Lawyer 1998.

1998, November, Pg. 5. Workplace Privacy, Autonomy, and Dignity in Colorado: Part I

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Vol. 27, No. 11, Pg. 5

The Colorado Lawyer
November 1998
Vol. 27, No. 11 [Page 5]

Articles

Workplace Privacy, Autonomy, and Dignity in Colorado: Part I
by Craig M. Cornish

The importance of workplace privacy was poignantly described by former U.S. Supreme Court Justice Harry A. Blackmun

[T]he reality of work in modern time, whether done by public or private employees, reveals why a public employee's expectation of privacy in the workplace should be carefully safeguarded and not lightly set aside. It is, unfortunately all too true that the workplace has become another home for most working Americans. Many employees spend the better part of their days and much of their evenings at work.1

Because of the increasingly important role the employer plays in our everyday lives, protecting individual freedom in the workplace has recently come to the forefront as a legal issue.2

Part I of this article explores the legal and philosophical meaning of privacy in the workplace. Part II, which will be published in the December issue, covers specific judicial applications in the state and federal courts and procedural issues that arise in litigation

THE MEANING OF WORKPLACE PRIVACY

The meaning of privacy is derived from many sources, including a dictionary, philosophy, history, judicial precedent, and scholarly analysis. In constitutional law and the common law, protection of privacy is relatively recent and evolving.3 Judicial privacy decisions suffer from a dearth of discussion about the meaning or purpose of privacy in our society; that is, what we mean by privacy and why we should protect it in the first place.

As a legal concept, privacy is paradoxical in the sense that, while few agree on the scope of its meaning, everyone agrees that privacy is something the law should protect. What plagues the law in this area is the current and pervasive difficulty in identifying when an employee or applicant has alleged a cognizable claim under a right to privacy and, once such a claim has been asserted, how and when the individual's asserted interest should prevail over the employer's competing interest. Attorneys and judges need to understand the moral or social values that undergird workplace privacy claims as a critical first step in doing justice to such cases.4

Today, individuals generally press three distinct types of claims against employers brought under the label of privacy: (1) infringements on the individual's right to control personal information, exemplified by medical and drug testing, questionnaires, background checks, electronic mail searches, and video surveillance; (2) unreasonable restrictions on personal decision-making, such as dating, marriage, off-duty political activities, and personal appearance;5 and (3) insulting affronts to dignity inherent in strip searches, sexual or racial harassment,6 and discrimination on the basis of a person's sexual orientation.

While these categories are conceptually distinct, they also contain a common moral or philosophical root. The common thread among each of these types of cases is the closely related principles of autonomy, dignity, and privacy.

Autonomy

Immanuel Kant equated autonomy with his belief that "man and generally any rational being exists as an end in himself, not merely as a means to be arbitrarily used by this or that will."7 To Kant, autonomy was "the property of the will to be a law to itself," and "the basis of the dignity of humanity and every rational nature."8 Matthew Finkin, writing on employee privacy, states: "An axial principle around which the right to privacy turns is individual autonomy, a freedom from control or domination."9 As the Colorado Court of Appeals recently wrote, the common law right of privacy entails "interference with a person's autonomy. . . ."10

Dignity

Dignity is that which has intrinsic value that cannot be replaced by an "equivalent."11 It "invokes the values inherent in the integrity of one's personality and to be free from intrusion."12 Similarly, common law privacy has been referred to as protecting an "inviolate personality,"13 and the principle of "'inviolate personality' . . . posit[s] the individual's independence, dignity and integrity; it defines man's essence as a unique and self-determining being."14 Democratic societies such as ours are based on "the uniqueness of the individual, in his basic dignity and worth as a creature of God and a human being, and in the need to maintain social processes that safeguard his sacred individualities."15

Privacy

Privacy has been defined as the right "to control information about ourselves, . . . to govern access to ourselves, and . . . to make self-expressive autonomous decisions free from intrusion or control by others."16 Privacy is said to promote "a healthy, liberal, democratic, and pluralistic society; individual autonomy; mental health; creativity; and the capacity to form and maintain meaningful relations with others."17 Although most dictionary definitions of privacy tend to emphasize privacy's informational dimension, Black's Law Dictionary includes the liberty- or autonomy-based dimension within its definition of the "right of privacy."18 As a Harvard law student recently noted, "Privacy is central to dignity and individuality, or personhood."19

The boundaries between autonomy, dignity, and privacy are clearly blurred and overlapping. Indeed, the U.S. Supreme Court has sometimes used the words as though they were synonymous.20 The law confers a measure of individual control over who has access to personal information. Does it not do so, in part, because the individual should be afforded a degree of autonomy in making the choice about who has access to that information To the extent that the law prohibits employers from unnecessarily restricting with whom an employee develops an intimate relationship outside of work, is it not because employees should be afforded a degree of autonomy in choosing close personal relationships To the extent that the law prohibits employers from invidiously insulting employees by harassing them because of something as arbitrary as their gender, race, or genetic makeup, is it not because the law respects the autonomy or dignity of the person Each of these three categories of cases is grounded in some aspect of autonomy, dignity, and privacy. Privacy jurisprudence invokes all of these concepts and seems to protect each within the rubric of a legal right to individual privacy.

INFORMATIONAL PRIVACY

In today's information age, privacy is aptly concerned with the use and abuse of information about an individual. "[B]oth the common-law and the literal understandings of privacy encompass the individual's control of information concerning his or her person."21 Igniting the legal development of privacy is everyone's concern about his or her "data image." As Professor Laurence Tribe has explained:

Such control must be understood as a basic part of the right to shape the "self" that one presents to the world, and on the basis on which the world in turn shapes one's existence. "Am I not what I am, to some degree in virtue of what others think and feel me to be"22

The California Supreme Court has noted: "The claim is not so much one of total secrecy as it is of the right to define one's circle of intimacy-to choose who shall see beneath the quotidian mask."23

The concern about control of personal information is both intrinsic and instrumental. As an instrumental value, access to and disclosure of personal information can have both positive and negative consequences beyond depriving the individual of the right to control who accesses his or her personal information. Informational disclosure is regarded as valuable to the individual when it serves as a vehicle for obtaining tangible benefits in life, such as jobs and intimate relationships.24 Informational disclosure also can be harmful to the individual, and helpful to others, as when, for example, a drug test is positive, which causes an employer to reject a job applicant or terminate an employee.

However, the real life consequences of unauthorized access to or disclosure of personal information are not necessarily prerequisites to an actionable invasion of informational privacy. While an obvious instrumental benefit of protecting personal information is to aid the individual in reaching his or her potential, as in not blocking employment opportunities because of an individual's genetic makeup, a person's privacy is still wrongfully invaded without demonstrable consequences to the victim.25 It is the intrusion itself that breaches the intrinsically valuable "inviolate personality," regardless of its consequences to the person who has been invaded.

Informational privacy is implicated in the employment setting where an employer collects, disseminates, or denies access to personal information. Drug testing, accessing medical records, and searching computer data bases are examples of collecting or disseminating personal information. Where the employer searches an employee's computer, he or she is collecting information. Sometimes collection and disclosure occur simultaneously as part of the same transaction, as when a supervisor reads an employee's medical records. The information is collected by being accessed by the reader, and disclosed by allowing for a review of the record simultaneously. Whether information is collected or disclosed adds no qualitative weight to the privacy analysis. However it can be helpful analytically to identify the separate processes of...