By: Can Cui
In December 2011, a Michigan employer’s motion for summary judgment on a job applicant’s right to privacy claim was denied over questions asked in a routine pre-employment medical exam conducted by an independently owned medical clinic. Garlitz v. Alpena Regional Medical Center, No. 10-13874-BC., 2011 WL 6016498, at *13 (E.D. Mich. Dec. 2, 2011). See David Goldstein, Hospital’s Post-Offer Medical Questions May Violate ADA, Title VII, and Employee Privacy Rights, Healthcare Employment Counsel (Dec. 12, 2011), http://www.healthcareemploymentcounsel.com/2011/12/12/hospitals_post-offer_medical_questions_may_violate_ada_title_vii_and_employees_privacy_rights/.
Acknowledging that “[w]hen acting as an employer rather than as a sovereign, the government enjoys greater latitude to inquire into personal matters of its employees,” Garlitz, 2011 WL 6016498, at *15 (citing NASA v. Nelson, 131 S. Ct. 746, 757-58 (2011)), the District Court is not willing to let “public employees surrender their constitutional rights when they accept a position with the government,” Id. at *15, and held that “the information sought [by the government employer] regarding Plaintiff’s sexual life [must be] relevant to Plaintiff’s job performance or related to her job functions.” Id. at *16.
This case distinguishes itself from Nelson because, unlike in Nelson, where the information seeking was reasonably aimed at identifying capable employees who would faithfully conduct the Government’s business, the “inquiry into . . . ‘private sexual life’ is [not] ‘related’ to the job.” Id. at *16. Therefore, although the government does not have to show its questions were necessary or the least restrictive means of furthering its interests, as established in Nelson, a minimum level of “relatedness” is required.
One may argue that Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260 (9th Cir. 1998) has made a comeback in this case, at least in the government employer context. This case is different from Norman-Bloodsaw in at least two significant ways. In Norman-Bloodsaw, blood and urine samples were taken and tested for various conditions without the plaintiffs’ knowledge and consent, while in this case, only questions about pregnancy, abortion, sexual activity, birth control and similar subjects were asked in a written form. Indeed, although the 9th Circuit recognized both the right to information privacy and the Fourth Amendment right in Norman-Bloodsaw, it felt that “it would not make sense to examine the collection of medical information under two different approaches,” and analyzed “under the rubric of [the Fourth] Amendment.” Id. Here, a Fourth Amendment argument may not be as strong unless one believes that questioning should be considered a “search” under the Fourth Amendment.
To the extent that some commentators may think that Nelson could be decided merely by concluding that questionnaires to collect information, without any evidence of disclosure, do not implicate the constitutional right to privacy, e.g., Daniel J. Solove & Paul M. Schwartz, Information Privacy Law 1025 (4th ed. 2011), this case seems to have answered that question in the negative.
So the takeaway message for human resources is: HR staff are well advised to review and/or revise their pre-employment medical screening process to make sure that the subject matter of not only tests conducted but also questions asked is related to the job, because courts may be looking more closely at routine policies and procedures concerning screening and hiring. If you cannot find relatedness between a screening question and a specific job function, you’d better leave the question out of the hiring process.
Eastern District of Michigan’s opinion in Garlitz is available here: http://www.healthcareemploymentcounsel.com/examining-room/GarlitzVsAlpena.pdf.