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Sexual Harassment by Spying
The Fourth Amendment of the United States Constitution provides for a reasonable expectation of privacy. The California Constitution: Article 1 Section 1, provide that “[a]ll people are by nature free and independent and have inalienable rights,” including the right to privacy. Of course, the right to privacy in the workplace is not absolute. While all forms of spying in the workplace may feel like an infringement on your right of privacy, some are legal. Generally, employers may use cameras and video surveillance in the workplace to prevent theft or to monitor the performance of employees while on the clock. So long as your employer has a legitimate reason to use cameras and video surveillance, the areas under surveillance are places where employees would not have a reasonable expectation of privacy, and your employer has informed you about the filming, such practices are likely to be upheld by a court. Whether your employer has violated your right to privacy through use of cameras and video surveillance depends on such variables as the locations within the workplace captured by video surveillance, the times when you were monitored, and scope of the intrusion. Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272.
Employers may also generally monitor workplace communications, including business phone calls and computer usage. The Electronic Communications Privacy Act of 1986 (ECPA), 18 United States Code section 3121, et seq., generally allows employers to monitor employees’ oral and electronic communications on devices provided by the employer as long as the employer has a legitimate business reason for doing so.
California has enacted several laws that apply to employee privacy.
For example, employers may not install a surveillance mirror (one that can be seen through from only one side and looks like a mirror on the other side) in a restroom, shower, fitting room, or locker room. California Penal Code section 653n. Determination of guilt under the statute is not dependent on context or subjective factors; use of the mirrors is a per se violation of the penal code. Cramer v. Consolidated Freightways Inc. (9th Cir. 2001) 255 F.3d 683. Furthermore, absent a court order, an employer may not make an audio or video recording of an employee in a restroom, locker room, or room designated by an employer for changing clothes. California Labor Code section 435.
In addition, employers may not intercept communications transmitted from or to your personal cellular telephone without consent. California Penal Code section 632.5.
Employers may not use cameras and video surveillance in the workplace to subject employees to sexual harassment. Doing so violates Title VII of the Civil Rights Act of 1964, the California Fair Employment and Housing Act (FEHA), and other laws. Sexual harassment by spying may occur when an employee is being videotaped inappropriately by his or her employer.
Example: A 22-year-old female employee, Kelley, was hired as a purchaser/in-store staff person. Thereafter, two employees in the employer’s information technology (IT) department observed how one of the security cameras in the workplace had repeatedly followed Kelley around the store and zoomed in on her face and chest. At the end of the workday, one of the IT employees gave Kelley a DVD containing hours of footage from the security camera from the day before. The IT employee also gave Kelley a list of who had logged into the camera system that day. The user log showed that Alm, a 55-year-old operations manager, had controlled the camera in question that day. Kelley went home and watched the video. At one point, the camera zoomed in on Kelley’s face and chest. Several times later in the day, the camera was adjusted to follow Kelley’s movements around her work space and on numerous occasions the camera zoomed in so that Kelley’s chest filled the entire screen. Watching the video made Kelley feel violated, tearful, and physically sick to her stomach.
The following day, Kelley told one of the IT employees about what she had seen on the video footage. Kelley said that she would finish up the project she had been working on and then leave the store, as she felt objectified and seeing Alm in the workplace was very distracting and made it difficult for her to focus at work. The IT employee said she would discuss the issue with the company president, Davis, and she did in fact later discuss the issue with Davis. As Kelley prepared to leave the workplace, Davis called her into his office. Davis told Kelley that “he had been guilty of the same thing” as Alm and that she was “a very beautiful girl and that men will always look at beautiful women.” Davis explained that he would not take any disciplinary action against Alm because he would be “throwing stones in a glass house.” Alm later called Kelley to personally to discuss what he did. His act of directly contacting her outside of the workplace sickened and upset her. Kelley never returned to work at the company. Ultimately, the United States Equal Employment Opportunity Commission (EEOC) filed suit and the U.S. District Court for the District of Minnesota approved a consent decree subjecting the company to a sweeping federal court injunction, which also required the company to pay emotional-distress damages to the former employee. EEOC v.Davis Typewriter Company, United States District Court for the District of Minnesota case no. No. 0:13-cv-2345-DSD-LIB.
An example: a male supervisor has been spying on his female employees. To do so, he hid a small camera in the women’s locker room. The female employees had no idea of this until one day the male supervisor made a comment to one of them about the color of her underwear. The female employee knew something was wrong the moment he mentioned this. There was no possible way for him to know this personal information about her unless he had spied on her while she was changing in the locker room or was in the restroom. Eventually, she found the hidden camera and she told her female co-workers about what she had discovered. If you are experiencing or have experienced a similar situation, contact our office.
Another example: a male supervisor has been spying on a female employee. He did so by placing some hidden cameras in the women’s bathroom. He sent some pictures and videos to the female employee and told her that if she did not have a sexual affair with him that he would share those pictures and videos with others. If you are experiencing or have experienced a similar situation, contact our office.Contact Us
If you have experienced sexual harassment at your workplace, contactthe sexual harassment lawyers at Kokozian Law Firm, APC.