Expectation of Privacy
Company X has a policy that provides the following:
Employees are reminded that all computers issued by the Company, as well as all data and information sent, received, or stored on those computers, remain the property of the Company. Employees should not have any expectation of privacy with respect to information transmitted over, received by, or stored on a Company computer. The Company maintains the rights to monitor, modify, and delete all data that is stored on its computers. A violation of any aspect of this policy may result in disciplinary action, up to and including termination.
Employees should not expect that information on any company computer will be confidential or that they will have any proprietary, privacy, or protected confidentiality right with respect to such information. In order to monitor compliance with this policy and protect its business interests, including the need to prevent any improper use of computers, the Company reserves the right to gain access to any information stored in, accessed, used or retrieved by any of its computers.
When employees log into their computer, the following message appears and the employee must acknowledge and accept the warning before access into the system is allowed:
WARNING: This system contains information that is the property of Company X and is for authorized use only. Unauthorized access is prohibited. Activities of users on this system are monitored. Anyone accessing this system expressly consents to such monitoring and is advised that if such monitoring reveals possible evidence of criminal activity, the evidence may be provided to law enforcement officials.
Given the above facts, consider this case:
Salrita was recruited by Company X. She and her wife were relocated by the company so that Salrita could accept a senior level position with the company. Salrita was recently terminated because the company did not consider her to be a good fit. She had worked for the company for 15 months and was brought in to turn around a division that had suffered from poor productivity and leadership. During the last year, Human Resources conducted 23 different investigations filed by employees complaining of harassment and discrimination. Employees made statements like the following: “She is such a bitch.” “The dike is never happy.” “She is so aggressive.” “She hates white men.” “She creates drama with her screaming and yelling.” The company even saw Facebook postings where employees were complaining about Salrita and making derogatory comments about her being a lesbian.
Salrita was not found to have illegally harassed or discriminated against any employee. The court did find that she tended to be impatient and that she often yelled at employees. She was coached on her behavior and told that she should be respectful of all employees at all times. Salrita’s supervisor gave her a rating of exceeds expectations in her annual performance review because the division was now producing as expected. During the past year, five employees left the company because of the leadership of Salrita as a manager. During some of the investigations, HR monitored the email account of Salrita. They learned that the she was actively seeking employment elsewhere. They also were able to see that she had sent company reports to her personal e-mail account. In addition, they found emails where Salrita was complaining that she was being treated differently because she was a lesbian over the age of 40.
Salrita was very active in the company’s LGBT group and was politically involved in the community.
Salrita is suing the company for wrongful termination. She believes she was discriminated against because she is a lesbian female over the age of 40. She also believes that the company did not approve of her activities in the LGBT group or her political activities on behalf of the LGBT community. Salrita used in her defense that the company news articles produced by its public relations department highlighted the community activities of other senior executives who were involved in United Way or Boys and Girls Clubs but not her activities because of the community on whose behalf she volunteered, LGBT. In addition, Salrita wants to bring a claim for invasion of privacy because of the search of her non-work related e-mails.
Analyze the claims being brought by Salrita against her private employer.
Do you think she will prevail in her claims of invasion of privacy concerning HR searching her emails and discovering non-work related emails? Did she have an expectation of privacy? Was the company’s search of her emails reasonable?
Analyzing the facts and the law, do you think she has valid claims of discrimination against her employer? Be sure to cite to federal, state, and local laws in your jurisdiction that analyze the invasion of privacy claims and whether Salrita had a reasonable expectation of privacy.
Analyze the discrimination claims.
Is she able to set forth a prima facie claim for discrimination? Discuss the burden of proof for both the employee and the employer. Include federal, state, or local case law and statutes that apply in this situation.
Include a brief history of the rights being protected by the laws cited in support of your analysis and the reason such laws are necessary.
Provide recommendations to the employer if you believe they should have done something differently in the handling of this matter.
Respond to each of the claims being raised by the employee and the defenses available to the employer. You must cite the laws that protect or prohibit such conduct and analyze each element of the cause of action to determine what the outcome may be for each claim.
