By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
In 1992 the Minnesota legislature passed a bill limiting the rights of employers to dictate behavior outside the workplace. The law, much like those passed in other states at the behest of the tobacco industry, says that employers can't refuse to hire, discipline, or discharge someone because they "engaged in the use or enjoyment of lawful consumable products if the use or enjoyment takes place off the premises of the employer during nonworking hours." Many companies now offer bonuses, cut-rate insurance premiums, or other incentives to the physically fit.
Giving incentives for healthy behavior has a certain common-sense appeal, but critics say the future holds murkier prospects: The same cost-cutting logic could be used to legitimize the use of genetic testing in the workplace, making it possible for employers to fire or refuse to hire people who are predisposed to certain illnesses. "We do have evidence that employers have used genetic information to assess and evaluate their employees," says Wendy McGoodwin, executive director of the Council for Responsible Genetics.
"One case involved a young woman, a social worker with a large human resources agency. She was participating in a training session with some coworkers. The workshop was on caring for people with chronic illness. During the course of the workshop she mentioned to her coworkers that her mother had died of Huntington's disease and that she had cared for her when she died. Two weeks later she lost her job. It was later revealed that the company was in the process of renegotiating its agreements to provide health care benefits to its employees. They were concerned about the cost of providing insurance to this woman. She did not have Huntington's. They didn't even know if she had the gene that caused Huntington's."
Though the 1990 Americans with Disabilities Act made it illegal for employers to discriminate against people with HIV--only about 3 percent of American companies currently test employees for the virus, according to one survey--the law is less specific when applied to genetic testing. "At the moment it is legal for employers to perform genetic tests on their employees," says McGoodwin. "The controversy surrounds what they can do with the information. They are not allowed to use it in a way that is considered unreasonably discriminatory. But these are vague terms and always open to interpretation."
Overall, there is very little protection against invasions of privacy by employers, especially in Minnesota, one of the few states in the country without a privacy tort. A minimal number of cases get filed in the first place, since the likelihood of winning is so remote; the ones that do are usually settled and sealed.
While the Constitution dictates that police and other government agents almost always need a warrant to search a home or listen in on a phone conversation, the workplace is different. It's the domain of bosses and managers. They literally own the office, the phone, the computer, and, in a sense, their employees. And they can do just about anything they want as long as it's not done in a discriminatory manner. According to Maltby, "There are only two things an employer can't do. They can't deliberately eavesdrop on a purely personal conversation that occurs on the job. And they may or may not be able to put a hidden camera in an extremely private area like a bathroom. It's not clear that the latter is illegal, but they're taking a risk. They might win the case, they might lose. Everything else is open season."
In fact, the laws are so thoroughly stacked in favor of employers that it's tough to find attorneys to take even the most seemingly egregious cases. "We had a [potential] case," Maltby continues, "where an employee--foolishly to be sure--was keeping his personal diary, including his reactions to sessions with his psychiatrist, on his laptop. One day he transferred all his files to his desktop, accidentally including his personal files. The employer read them and it's not clear that that was illegal. No lawyer in California will take the case because they are not sure they can win it. We talked to a dozen different lawyers. My advice to people is don't say anything at work that you wouldn't want your boss to listen to, because they might be."
American workers, it is often claimed, are the most spied upon in the world. In the words of an ACLU briefing paper, "In the 18th century, when the Constitution and Bill of Rights were ratified, the government was viewed as the only major threat to individual rights. The Founders could not have imagined back then that, one day, concentrations of corporate power would exist on a scale rivaling, and in some cases exceeding, governmental power.... Nationwide, the American Civil Liberties Union receives more complaints about abuses by employers than about abuses by the government."
The American public is squarely opposed to the use of surveillance in the workplace. And the repulsion factor increases as bosses delve further into personal habits and genetic testing. A poll published in Time in 1991 found that 95 percent of Americans believe employers should not be allowed to listen in on phone conversations; 67 percent thought employers should not have the power to check the credit history of job applicants; 56 percent did not think employers should be able to scan work areas with video cameras. A series of Harris polls taken through the years shows that concern about privacy has risen dramatically: In 1977, 25 percent of Americans said they were "very concerned" about their privacy; by 1993, the number had risen to 53 percent.