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The U.S. Supreme Court has just dismissed a case that would have decided a longstanding question of whether disparate impact claims are available under the Age Discrimination in Employment Act (ADEA). Adams v. Florida Power Corp. What this means for employers is that, in the Eleventh Circuit at least, plaintiffs will not be able prevail on ADEA suits unless they can show that the employer intended to discriminate against them because of their age. There are two basic types of discrimination claims: disparate impact and disparate treatment. Disparate treatment claims require the person complaining to show that the employer intended to discriminate against him or her when it took the questionable employment action. Disparate impact claims do not require proof of intentional discrimination. Instead, disparate impact claims are based on the theory that an employer's policy that appears neutral on its face actually affects a protected group more harshly than an unprotected group. Disparate impact claims are available under Title VII, but the federal appeals courts are divided on whether they are available under the ADEA. The ADEA's language is slightly different from that of Title VII because it allows an employer to make decisions based on "reasonable factors other than age." Courts that do not permit disparate impact claims under the ADEA rely on this language. The First, Seventh, Tenth, and Eleventh Circuits do not allow disparate impact claims under the ADEA. The Second, Eighth, and Ninth Circuits have allowed them. The Supreme Court's dismissal of the case surprised many labor and employment attorneys because the Court had heard oral argument in the case and because of the split among the circuits on this issue. Investigating suspected employee theft, monitoring telephone usage, and random drug testing are just a few of the common practices used by employers to increase productivity and ensure safety in the workplace. Employers are well aware that such actions may expose them to claims for breach of contract if they depart from established employment policies, disparate treatment claims under Title VII if they treat similarly situated employees differently on the basis of a protected characteristic, and emotional distress claims if they do almost anything that upsets an employee. In addition to these common claims, however, such employer action may implicate a number of privacy issues. Increasingly, employees have relied on a variety of privacy protections as yet another avenue for asserting claims against employers. The most common claim asserted is invasion of privacy, sometimes called "intrusion upon the seclusion of another." The employee privacy area can be difficult for employers to navigate because cases generally turn upon whether an employee had a reasonable expectation of privacy while engaging in the act that is being monitored by an employer, and whether the employer’s means of monitoring was unreasonably offensive. As one might expect, it is difficult to predict what expectations of privacy courts will deem to be reasonable and what means of investigation they will find unreasonable. Analyzing some of the most recent court decisions in this area does, however, offer some guidance. I. Employee Investigation: The Johnson v Kmart Case In a recent Illinois case, the court found that an employer may have unreasonably intruded upon its workers' privacy rights when it hired undercover investigators to pose as employees and report their observations to management.1 The employer, Kmart, suspected that employees were stealing, vandalizing merchandise, sabotaging operations, and using and selling drugs in a distribution center where some 500 people were employed. To identify the responsible individuals, Kmart hired two private investigators to work undercover at the center, mingle with employees, and periodically submit confidential reports to the general manager of the center. Kmart assigned one investigator to focus on theft, sabotage, safety, and drug use. A second investigator was also asked to report any evidence of theft or drug use. The trial court granted Kmart's motion for summary judgment on the employees' invasion of privacy claim, finding that there was no unauthorized intrusion because the employees voluntarily disclosed their personal information in conversations with the investigator-employees. Although a voluntary disclosure of private information will normally defeat a claim for invasion of privacy2, the Illinois appellate court reversed the trial court, finding that the conversations were not truly voluntary because they were induced by deceptive means3. Accordingly, the court found that the employees had a reasonable expectation of privacy in their conversations with co-workers, and it was a question of fact as to whether the unauthorized intrusion into matters relating to their private lives would be offensive or objectionable to a reasonable person4. Note that the court did not find that undercover investigations were per se unreasonable intrusions into employees' privacy expectations.
Approximate Word count = 3075
Approximate Pages = 12.3
(250 words per page double spaced)
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