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23 J. Marshall L. Rev. 591 (1989-1990)
Privacy: The Workplace Issue of the '90s

handle is hein.journals/jmlr23 and id is 617 raw text is: PRIVACY: THE WORKPLACE ISSUE OF THE '90s DAVID F. LINOWES* RAY C. SPENCER** I. INTRODUCTION Many keen observers of employer-employee relations hold that privacy is becoming the workplace issue of the 1990s as the courts, Congress, and state legislatures define employee rights.' Workplace litigation is already a major concern for employers as new laws and court decisions expand employers' social obligations to their employ- ees.2 As medical screening moves beyond drug abuse to genetic and AIDS testing, there is an increase in the number of court cases weighing the employer's right to know against employee expecta- tions of privacy.3 Employees bringing suits against their employers is a relatively recent phenomenon. In 1979, there were only a few claims and no jury trials concerning employee privacy.4 Today, however, there has been a dramatic upsurge in privacy litigation, with juries awarding higher levels of verdicts than ever before.' * Professor of Political Economy and Public Policy, College of Liberal Arts and Sciences; Boeschenstein Professor Emeritus; Senior Advisor, Institute of Government and Public Affairs, University of Illinois; David F. Linowes is the former Chairman of the U.S. Privacy Protection Commission. ** Visiting Research Associate, Ph.D., University of Illinois. 1. Bacon, See You in Court: Employee Suits Against Employers are Turning the Workplace into a Legal Combat Zone, NATION'S Bus., July 1989, at 17, 26. 2. Id. Increased federal and state legislation has expanded employers' obliga- tions to employees giving rise to workplace litigation in suits for wrongful discharge, discrimination, and invasion of privacy. Id. at 18-26. See also Kleiman, Worker Pri- vacy Right Puts Businesses to Test, Chicago Tribune, July 23, 1989, § 8, at 1 (the struggle between employers' need to collect information on their employees and the employees' right to privacy); Goode, Privacy Rights Now Aired in Public, INSIGHT, Feb. 1, 1988, at 52 (courts' use of balancing test, weighing the employer's need to know against the employee's right to privacy in the workplace, on the rise). 3. Chapman, The Ruckus over Medical Testing, FORTUNE, Aug. 19, 1985, at 57, 60. Cf. Louis HARRIS & ASSOCIATES, INC., THE EQUIFAX REPORT ON CONSUMERS IN THE INFORMATION AGE 42 (1990). In this 1989 Louis Harris poll of corporate human re- sources executives, 3% of the respondents reported invasion of privacy lawsuits being brought against their companies by employees, and 2% said privacy suits had been brought against their firms by job applicants. 4. Bacon, supra note 1, at 24. 5. Id.