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Firms Walk Tightrope on Privacy Issues

December 20, 1987|JIM SCHACHTER | Times Staff Writer

All of a sudden, Richard Schowengerdt's secret life wasn't a secret anymore.

Security guards, searching his office at the Naval Industrial Reserve plant in Pomona where he worked as a civilian engineer, found a packet of the explicit letters he had been exchanging with women he contacted through personal ads in swingers newspapers.

The consequences of the August, 1982, investigation were severe. Schowengerdt was cleared by the U.S. Postal Service of charges that he was sending pornography through the mails. But he was dismissed from the Naval Reserves on the grounds that the letters, which bragged of bisexual exploits, indicated he was involved in homosexual activities--an allegation he denied. And there was a long delay when he sought a security clearance for another defense industry job.

Most painful, though, was that an intensely private aspect of the 57-year-old Costa Mesa man's life was exposed for his co-workers and family to see. His privacy was invaded, Schowengerdt says, and the resulting humiliation was profound.

"How do you put a value on this sort of thing?" Schowengerdt said, trying to describe his anger and embarrassment. "The damage it does to your psyche is not measurable."

All the same, Schowengerdt wants a court to put a price on the damage. He is suing the federal government and General Dynamics, which operates the Pomona plant. The case, pending in U.S. District Court in Los Angeles, is just one in a swelling tide of litigation over the extent to which employees give up their right to privacy when they cross the threshold of the workplace.

In unprecedented numbers, workers are pitted against their employers in American courts over an expanse of privacy questions with no easy answers. A recent study by the private Bureau of National Affairs found 20 times as many workplace privacy suits decided by U.S. courts in the last three years as in the three years before. Since 1985, jury verdicts in favor of aggrieved workers have averaged $316,000, according to the study. As recently as 1979 and 1980, no workers won compensation from privacy suits, the study found.

"All of us who are doing labor law, whether from management or labor, are dealing with these issues," said Alan Friedman, chairman of the Los Angeles County Bar Assn.'s labor law section. "That is the emerging area."

No Guarantees

Litigation over employee drug testing has received the most notice. But other issues pitting workers against bosses in court are just as tough:

Do employers have any business testing workers or job applicants for AIDS? Can supervisors listen to a telephone operator's phone calls? Should they be allowed to program computers to flash subliminal messages to influence employee behavior? If polygraph tests are considered unreliable in criminal trials, can their results be used as the basis for hiring or firing employees? Can a company fire a worker because supervisors don't approve of whom he or she is dating? Should managers have access to their underlings' medical records? And just how private is an office or a locker or a desk--or an employee's car parked on the employer's lot?

The answers have proven hard to find, because worker privacy is an area of great uncertainty in the law. Some states regulate aspects of workplace conduct. California law, for instance, limits the use of lie detectors, protects the confidentiality of employees' medical records and prohibits most job-related AIDS testing. And some state constitutions--including California's--enshrine a right to privacy among their citizens' basic freedoms.

Yet the U.S. Constitution contains no explicit guarantee of a right to privacy, and federal privacy legislation is sparse. Only last month did the House of Representatives pass a bill prohibiting the use of polygraphs in most employment settings--a decade after a federal privacy commission called for such legislation.

Public employees have secured some rights from the Constitution's strictures on governmental action, including the limits on searches and seizures. But for both public-sector and private-sector workers, the rules on privacy mainly are being drawn by individual judges weighing the facts of individual cases against the murky guidelines established by precedent.

sh More Control

"We're treading in some new areas, and we're having to feel our way," said John N. Raudabaugh, an Atlanta management lawyer who is chairman of an American Bar Assn. committee on labor law.

Lawyers and privacy experts have many explanations for the intensification of the conflict. To begin with, Americans are suing each other more about everything--a litigation explosion in which non-unionized workers have participated since winning recognition during the last decade of their right to sue for wrongful termination.

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