Volume 9, Number 1 — 2000-2001

From the Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Privacy Rights in the Workplace: Constitutional and Statutory
Considerations
Paul Kovatch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
When Does an Employer Violate an Employee’s Fourth Amendment
Rights? Case Law and Applications
Theresa Zechman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Employee E-Mail: A Protected Right to Privacy
Brandy L. Scott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
The Americans with Disabilities Act and the Hostile Work Environment
Mary Beth Hamilton . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
The Sutton Trilogy: Changing the Landscape of the ADA
Charles J. Coleman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Cumulative Index: Volumes 1-8
Theodora T. Haynes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

VOLUME 9
NUMBER 1
2000-2001

Vol. 9, No. 1 — 2000-2001 Pages 1-91

 J. INDIVIDUAL EMPLOYMENT RIGHTS, Vol. 9(1) 1, 2000-2001

FROM THE EDITOR

Although this is the first issue of the Journal of Individual Employment Rights to
appear under my editorship, it really is Kurt Decker’s last issue. All of the articles
in this issue, including mine, were submitted to Kurt; many of them came from his
students and all of the accept/reject decisions were made during his tenure. My
role has been one of shaping the issue and, with the assistance of Manuscript
Editor Claire Mierowitz and the rest of the staff, getting the articles into final form.
The first three articles address employee privacy rights in the workplace. Paul
Kovatch begins our study by examining constitutional and statutory consider-
ations and Theresa Zechman reviews the case law on the topic. Zechman continues
by examining four specific privacy issues in employment: urinalysis, search of
desks, search of lockers, and video surveillance. Brandy Scott examines an
employee’s right to privacy in his/her e-mail.
The next two articles focus on the Americans with Disabilities Act. Mary Beth
Hamilton traces the bridge between the concept of hostile environment, pioneered
in Title VII cases, and the ADA, while Charles Coleman studies the impact of three
1999 Supreme Court decisions on that same law.
The issue closes with Theodora Haynes’ compilation of subject and author
indexes for the first eight years of the Journal of Individual Employment Rights—
a summary of Kurt Decker’s work.

1
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 J. INDIVIDUAL EMPLOYMENT RIGHTS, Vol. 9(1) 3-12, 2000-2001

PRIVACY RIGHTS IN THE WORKPLACE:

CONSTITUTIONAL AND STATUTORY CONSIDERATIONS

PAUL KOVATCH
Widener University School of Law at Harrisburg, Pennsylvania

ABSTRACT
The growth of surveillance in the workplace has increased at an alarming rate
during the last decade. Various electronic and other surveillance techniques—
including the use of video cameras, e-mail monitoring, telephone recordings,
and searches of employee computers and cubicles—allow employers a seem-
ingly unlimited ability to “keep tabs” on their employees. Such technological
advances significantly affect the privacy rights of employees. This article
examines how privacy rights at the workplace are treated constitutionally and
statutorily. The author argues that employers’ growing abuse of this ability to
monitor employees and violate their right to privacy requires an examination
of current protections for employees and, possibly, new solutions.

Technological advancements have played a major role in the workplace by greatly

enhancing the employers’ ability to monitor virtually every aspect of a worker’s
activities. The American Management Association reports that nearly two-thirds
of its members conduct some form of electronic monitoring or surveillance of their
employees [1, p. 825]. Employees and job applicants are increasingly subject to
monitoring, including office and cubicle searches, video surveillance, electronic
mail monitoring, and health and psychological screening [1, p. 826; 2, pp. 989,
1017]. Because this technology allows surreptitious surveillance, the employee’s
right to privacy may be almost entirely eliminated [1, p. 827; 3, pp. 1898, 1903].
The growing threat such surveillance poses to commonly accepted notions of
privacy requires us to take a closer look at workplace privacy protections for
private sector employees [1, p. 827; 4, pp. 102-104]. This article briefly traces the
history of an employee’s right to privacy, examines some of the current privacy
laws, and explores some new privacy proposals and solutions to this growing issue
of workplace monitoring.

3
Ó 2000, Baywood Publishing Co., Inc.
4 / KOVATCH

A distinction must be made between public and private employment. Because

constitutional rights usually protect citizens from the government, employees can
claim a constitutionally protected right only if a state action occurs. Therefore,
constitutionally protected rights can usually be secured only when the government
is the employer. Because of this dichotomy, public sector employees enjoy greater
privacy rights than do private sector employees. Private sector employer action
rarely constitutes state action, so the typical private sector employee can find legal
protection from intrusive employer surveillance only through claims brought
under various state statutes or the common law tort of invasion of privacy. These
remedies vary widely from jurisdiction to jurisdiction, and in some cases have
not protected employees against even the most outrageous forms of employer
intrusion [1, p. 829; 5, at *7].

HISTORY OF THE RIGHT TO PRIVACY

It is very difficult to define the term privacy [1, p. 832; 6, pp. 10-12]. No single
definition or theory can capture all the nuances of the concept. Privacy in
this article means: freedom from unwarranted and unreasonable intrusions into
activities that society recognizes as belonging to the realm of individual autonomy
[1, p. 833; 7, p. 7].
While there is no “right to privacy” found in any specific guarantee of the
Constitution, the U.S. Supreme Court has recognized that “zones of privacy” may
be created by more specific constitutional guarantees [8]. For example, in Roe v.
Wade, the Court pointed out that the guarantee of personal privacy must be limited
to rights that are “fundamental” or “implied in the concept of ordered liberty,”
such as matters relating to marriage, procreation, contraception, family relation-
ships, child rearing, and education [8, 9]. As a result of Roe and many other cases,
privacy has come to be regarded as a fundamental right. This country’s historic
respect for privacy has helped creativity and individuality flourish [1, p. 834;
10, pp. 1434-1438; 11]. American culture has been built on its “rugged indi-
vidualism,” diversity, and the willingness to accept challenges that test American
creativity [12]. However, these traits may be sacrificed if privacy is not protected.
While individuals have a fundamental interest in privacy, they also have an
obvious need to obtain and maintain employment [1, p. 834; 13]. Increasingly,
however, a growing number of employers are resorting to intrusive monitoring
techniques. These techniques force employees to sacrifice their privacy expec-
tations because of their need to work. A very large number of cases have arisen
from employer monitoring. Some of the alleged violations include videotaping
changing rooms, timing bathroom breaks, random monitoring of phone conver-
sations, or intercepting electronic mail [1, p. 826; citing 2, pp. 989, 1017].
Employers typically try to justify employee monitoring by citing increased worker
productivity, better evaluation of work performance, deterrence of dishonesty,
and limiting liability. But regardless of whether these interests are valid or are
 PRIVACY RIGHTS IN THE WORKPLACE / 5

done in good faith, employee monitoring creates increased stress, and often make
employees feel demeaned.
A two-year study by the University of Wisconsin found that workplace moni-
toring causes physical and emotional health problems in employees [14, pp. 1256,
1262]. The study found a higher incidence of headaches and other physical
ailments, such as backaches and wrist pain, among monitored workers [14,
p. 1263]. Moreover, monitored workers also suffer greater fatigue. Psychological
problems included a 12 percent increase in depression and a 15 percent increase
in extreme anxiety [14, p. 1263].

CURRENT PRIVACY LAWS

What can employees do when they believe their privacy rights have been
violated? In practical terms, the employee has little choice but to grin and bear it, or
“simply” change jobs [15, p. 441]. However, people have certain expectations of
privacy in their persons and effects. These expectations are protected to some
degree by various legal provisions, including the U.S. Constitution, state consti-
tutions or statutes where applicable, and common law [15, p. 728]. The extent of
legal protection for a person’s privacy is governed, in large part, by what the law
considers to be “reasonable.”

Privacy Under the U.S. Constitution

The Fourth Amendment to the U.S. Constitution protects privacy, in part, by
prohibiting those acting under government authority from conducting unreason-
able search and seizures. An unreasonable search is one in which an individual’s
reasonable expectation of privacy in what is being searched outweighs the govern-
ment’s need to conduct the search and obtain information. Typically, however,
only public sector employees can invoke the Fourth Amendment protection
against unreasonable searches and seizures to challenge employer searches of
employees and property.
Private sector employees who wish to contest employer invasions of privacy
must rely on a patchwork of federal and state statutes, common-law tort theories,
and the public policy exception to the employment-at-will doctrine [15, p. 839].
Under these laws, the protection granted private sector employees is far less than
the protection available to government employees. The courts have, however,
applied a Fourth Amendment analysis to both public and private sector employees
to determine whether the employee has a privacy right.
In 1987, the U.S. Supreme Court considered what constituted a reasonable
search by a public employer under the Fourth Amendment [16]. In O’Connor v.
Ortega, the Court analyzed whether the employer’s search of a publicly employed
psychiatrist’s office and files was unreasonable [16]. The Court laid out an
analytical framework to guide the lower courts when deciding whether a public
6 / KOVATCH

employer’s justification for carrying out a search outweighs an employee’s

privacy interest in his/her offices and files [16].
The Court found that both public and private employees have a reasonable
expectation of privacy [16, at 716]. However, one’s expectation of privacy may be
reduced by “actual office practices and procedures, or by legitimate regulation”
[16, at 717]. In O’Connor, the target of the search was Ortega’s office. The Court
concluded that Ortega had an expectation of privacy because he did not share the
office or files, he had occupied the office for seventeen years, and the employer did
not discourage keeping personal items in the office [16, at 718-719].
The next element of the Court’s analysis involved balancing “the invasion of
the employees’ legitimate expectations of privacy against the government’s need
for supervision, control, and the efficient operation of the workplace” [16, at
719-720]. The Court initially noted that requiring employers to obtain a search
warrant before conducting a search would be unworkable [16, at 720-722]. The
Court stated that, because work-related searches promote efficiency, employers
should have greater latitude to conduct such searches [16, at 723].
When balancing an employers’ interest in efficiency and regulating employee
conduct against an employee’s expectation of privacy, the Court identified two
issues that should be addressed [17, pp. 695, 730]. First, a court must consider
whether the search was initially justified by reasonable suspicion that the search
would turn up evidence of what the searchers were seeking [17, p. 730]. Second,
the scope of the search must not go beyond that justified by the initial reason
for searching [17, p. 730].
Thus, under O’Connor, three primary considerations exist in determining
whether a search of a public employee’s workplace is permissible under the Fourth
Amendment [17, p. 730]. First, does the employee have a reasonable expectation
of privacy in the thing to be searched [17, p. 730]? Second, does the employer
have a reasonable, work-related need or suspicion to search [17, p. 730]? Finally,
the scope of the search must not exceed what is necessary to investigate the
employer’s need or suspicion [17, p. 730].
However, because Ortega was employed at a state hospital and was considered
a state employee, he was permitted to bring a Constitutional claim. As mentioned
above, this right is rarely extended to private sector employees. Only the
California courts have clearly held that the state constitutional right to privacy
applies with respect to both public and private employers [14, pp. 1256, 1265].
In other states, employees have successfully invoked the state constitutional
right to private only after establishing that the government was the employer
[14, pp. 1256, 1265].
Pennsylvania provides an example of the path more frequently taken by the
states. Article I, section 8, of the Pennsylvania Constitution contains language
almost identical to that of the Fourth Amendment. Similar to that amendment,
Article I, section 8, extends to searches conducted by public officials or those
acting on their behalf. However, the search-and-seizure clause of the Pennsylvania
 PRIVACY RIGHTS IN THE WORKPLACE / 7

Constitution may be more comprehensive than the Fourth Amendment. The

courts have noted that the protection of individual privacy against reasonable
governmental search and seizures under the Pennsylvania Constitution are
more expansive than those afforded under the U.S. Constitution [18]. However,
the courts have not afforded private sector employees any constitutional
protection.

STATUTORY PROTECTIONS

Federal
The federal legislation most relevant to employee privacy is Title III of
the Omnibus Crime Control and Safe Streets Act of 1968, as amended by
the Electronic Communications Privacy Act (ECPA) of 1986 [1, pp. 825, 839;
19]. The ECPA, with certain exceptions, prohibits any interception or disclo-
sure of oral, wire, and electronic communications, or any entry into an electronic
system to alter or obtain stored communications [1, p. 840]. However, because
of the following exceptions, the ECPA provides very limited protection of
employee privacy. The ECPA does not require prior notice to employees of
monitoring. Consent to monitoring need not be expressly given, and it can
be inferred from an employee’s awareness of the monitoring [1, p. 840]. Among
the factors relevant to establish awareness are whether the employee was gener-
ally informed that calls will be monitored and the manner in which the moni-
toring will take place. In addition, the business-extension exclusion of the
ECPA exempts interceptions made by equipment “furnished to the subscriber
or user by a communications carrier in the ordinary course of business and being
used by the subscriber or user in the ordinary course of business” [1, p. 840].
The only limitation the law imposes on monitoring employee communication
is that the surveillance be “within the ordinary course of business” [1, p. 841,
citing 20]. It is difficult to imagine how any monitoring scheme that enhances
productivity or efficiency would not be construed as “within the ordinary course
of business” [1, p. 841; 21]. Finally, what limited protection the ECPA might
afford employees has been greatly weakened because the statute quickly became
outdated [1, p. 841; 22, pp. 345-347]. The ECPA does not apply to several modern
monitoring techniques, such as electronic mail monitoring and video surveillance
[1, p. 841].
Pennsylvania contains a wiretapping statute similar to the ECPA. How-
ever, Pennsylvania’s Wiretapping and Electronic Surveillance Act is a criminal
statute, and courts have recognized that it should be narrowly construed
because it is designed to regulate surreptitious electronic monitoring of
citizens by the government officials. However, the courts have also found
that private individuals may be prosecuted for violating the Wiretap Act’s
provisions.
8 / KOVATCH

COMMON LAW PROTECTION

Under common law, a person’s privacy may be invaded by an unreasonable

intrusion upon his/her seclusion. Most plaintiffs use this tort to challenge employer
monitoring and surveillance [1, pp. 825, 844]. The tort reads in part: “one who
intentionally intrudes, physically or otherwise, upon the solitude or seclusion of
another or his private affairs or concerns, is subject to liability to the other for
invasion of his privacy, if the intrusion would be highly offensive to a reasonable
person” [23]. The classic conception of this tort is that it is used to punish highly
offensive privacy invasions [1, pp. 825, 844]. Recognized in virtually every state,
there has been an attempt to apply the tort in the employment context as a way of
challenging workplace-monitoring abuses by employers [1, pp. 825, 844; 24, §3.3,
p. 108; §3.5, p. 123]. However, what is “highly offensive to a reasonable person” is
a very subjective standard. Routine monitoring may appear harmless from some
perspectives (especially that of a third party), and the negative effects of such
monitoring may be gradual and incremental, so this subjective standard usually
defeats an employee’s claim based on typical workplace monitoring and sur-
veillance [1, p. 845].
In Smyth v. Pillsbury Co., an employee was terminated after his employer
intercepted an e-mail message from the employee to his supervisor via the
employer’s e-mail system and determined the e-mail contained “inappropriate and
unprofessional comments” [17, pp. 695, 743; citing 25]. The employee sued for
wrongful termination, claiming his termination violated the right to privacy “as
embodied in Pennsylvania common law [17, p. 743; citing 25, at 100]. The court
noted that although the plaintiff was an at-will employee who could generally
be terminated with or without cause, no employee could be terminated if the
discharge threatened or violated a “clear mandate of public policy” [17, p. 743;
citing 25, at 99]. The court concluded, however, that the plaintiff’s termination
did not violate public policy [25].
The court began its analysis by holding there could be no “reasonable expec-
tation of privacy” in e-mail communications voluntarily made by an employee to
his supervisor over the company e-mail system [17, p. 743; citing 25, at 101]. The
court also made clear it would reach the same conclusion even if an employer
gives assurance that such communications would not be intercepted [17, p. 743;
citing 25]. The court then stated that, even if an employee had a reasonable
expectation of privacy in electronic communications, interception by an employer
would not constitute “a substantial and highly offensive” invasion of privacy. The
court concluded that an employer’s interest in preventing inappropriate or illegal
conduct outweighs any privacy interest an employee might have in his e-mail
communications [17, p. 743; citing 25, at 101].
As this case demonstrates, courts have not been very receptive to employee
claims of invasion of privacy. An employee’s office, desk, or locker may be held to
be the employer’s property, and thus not private [1, pp. 825, 846]. Moreover, some
 PRIVACY RIGHTS IN THE WORKPLACE / 9

courts require an employee to demonstrate not only the occurrence of an invasion

of privacy, but also that the employer subsequently disseminated or published the
information obtained from that intrusion [1, p. 846]. The combination of these
requirements typically defeats the employee’s tort claim in all but the most
egregious circumstances [1, p. 846; 26].

PROPOSED PRIVACY PROTECTIONS

Though many commentators have questioned the lack of workplace privacy
protection for nongovernment employees, no consensus has emerged as to a
solution to the problem [1, p. 847]. Recommendations include suggestions of new
state laws or tort actions, amending current federal privacy protection statutes,
and even Constitutional amendment.
In 1993, the Privacy for Consumers and Workers Act (PCWA) was introduced
in the U.S. House of Representatives and the U.S. Senate. In February 1994, the
House Education and Labor Subcommittee on Labor Relations approved the bill.
However, the PCWA met with strong resistance in the Republican committee and
thus remained inactive. [At press time, in 2001, the bill was still in committee.]
Generally, the PCWA would require employers to give specific written notice to
their employees concerning: 1) the forms of monitoring to be used; 2) the use (if
any) to be made of personal data collected; 3) interpretations of statistics or other
records if the interpretations affect the employee; 4) existing production standards
and work performance expectations; and 5) methods for determining production
standards and work performance expectations based on electronic monitoring
statistics [17, p. 737]. The PCWA would also require notice to job applicants
and customers who may be electronically monitored pursuant to the PCWA
[17, p. 737].
Under the PCWA, an employer could monitor any employee at the worksite
without notice if the employer “has a reasonable suspicion” that the employee has
violated or will violate criminal law or civil law, or has engaged in or will engage
in gross misconduct and the conduct adversely affects the employer’s economic or
safety interests. The proposed PCWA does not delineate what types of monitoring
may be inappropriate even with adequate notice, leaves employees subject to
offensive nonelectronic monitoring, and fails to protect the employee against
egregious privacy violations that meet the notice requirements [1, pp. 825, 851].
Although the PCWA may have its shortcomings, it is a major step toward
adequate privacy protection for the employee in the private sector workplace.
Other scholars have suggested an expansion of the privacy tort to help deter
workplace privacy invasions. Supporters of an expanded privacy tort argue that a
new common-law cause of action applying to all workplace privacy invasions
would provide the greatest protection to employees [1, pp. 825, 851]. Supporters
theorize that the courts can fashion new common-law remedies to resolve the
problems created by changes in technology and economic conditions. Because
10 / KOVATCH

legislation has not dealt adequately with these issues, supporters believe a new tort
claim would provide the most immediate help to workers. The tort law approach of
adjudicating claims on a case-by-case basis, examining the circumstances and
balancing the equities of each case, would provide the best mechanism for
protecting privacy rights [1, p. 852]. However, a judiciary expansion of current
privacy doctrine would involve broadened rulings, which the courts seem
unwilling to make. In addition, action by the courts would not provide uniform
protection of workplace privacy rights. Employees who suffer similar intrusions
might receive differing protection of their privacy rights, and the surveillance
process may cross state lines [1, p. 853]. As a result, employees and employers
may be uncertain as to which law governs their workplace rights.

CONCLUSION
Despite our historic commitment to privacy rights in the United States, it has
become increasingly common for employers to monitor the actions and communi-
cations of their employees [1, p. 887]. As advances in technology are made,
electronic monitoring in the workplace may well become even more prevalent.
Abuses of these practices are bound to become more commonplace unless some
guidelines are established. At present, Congress and state legislatures have recog-
nized some limitations on the employer’s ability to monitor employees [1, p. 887].
Current privacy law, however, is inadequate and inconsistent [1, p. 887]. The best
solution would be to adopt a comprehensive federal statute based on broad
constitutional principles of privacy. This seems to be the only way to address the
lack of privacy protection that currently exists for private sector employees, while
at the same time providing a uniform statute that would not vary from state to state
and from jurisdiction to jurisdiction.
In addition to the need for legislative action, a balance must be struck between
the employer’s need for monitoring employee performance and the employee’s
legitimate privacy and productivity interests. Courts need to examine more closely
the claims of business necessity for privacy intrusions and should recognize that
less intrusive methods of determining employee productivity can achieve similar
results. Employers must also recognize that electronic monitoring may not achieve
the benefits they anticipate, since studies have indicated that electronic monitoring
may lower work performance and productivity. Finally, employees must also recog-
nize and accept some level of monitoring, for if employees demand the complete
elimination of electronic surveillance, employers may invade employee’s personal
integrity through even more degrading means than those now occurring.
* * *
Paul Kovatch received his B.S. in Accounting from Wilkes University in 1993.
He received his J.D. from the Widener University School of Law at Harrisburg,
Pennsylvania.
 PRIVACY RIGHTS IN THE WORKPLACE / 11

ENDNOTES
1. Elizabeth Wilborn, Revisiting the Public/Private Distinction: Employee Monitoring
in the Workplace, 32 Georgia Law Review, pp. 825-887 (1998), citing Rosemary
Orthmann, Most Major Employers Monitor Workers Electronically, American
Management Association International Survey Questionnaire: Workplace Testing and
Monitoring, University Publications of America, Bethesda, Md. (May 1997). The
survey indicated 63 percent of its members conducted electronic monitoring or
surveillance of employees.
2. Andrew Jay McClurg, Bringing Privacy Law Out of the Closet: Tort Theory of
Liability for Invasions in Public Places, 73 North Carolina Law Review, pp. 989-1089,
1017 (1995). Noted startling increase in monitoring of employees and customers.
3. [No author cited], Addressing the New Hazards of the High Technology Workplace,
104 Harvard Law Review, pp. 1898-1916, 1903 (1991). Noted that employers can
record length, time, and destination of calls with computerized telephone system
technology.
4. U.S. Congress, Office of Technology Assessment, The Electronic Supervisor: New
Technology, New Tensions (OTA-CIT-333), Washington, D.C.: U.S. Government
Printing Office, September 1987. Described possible illegitimate uses of monitoring,
such as frustration of union organizing efforts, circumvention of employment
discrimination laws via intensified scrutiny of protected employees, and identification
of whistleblowers.
5. Harris v. Neff, 55 Fair Employment Practices Cases, BNA 1019; 6 IER Cases 615
(D. Kan., March 25, 1991. [Not reported in Federal Supplement.] Finding: A memo-
randum circulated to 110 employees was not considered highly offensive to a
reasonable person and did not constitute privacy invasion. The memorandum had
stated that a worker was no longer employed and had voluntarily entered an alcohol
and drug rehabilitation program.
6. Raymond Wacks, The Protection of Privacy (London: Sweet & Maxwell Publishing,
1980). The author noted: “The long search for a definition of ‘privacy’ . . . is often
sterile and, ultimately, futile” [p. 10].
7. Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967). The author
stated: “Privacy is the claim of individuals, groups, or institutions to determine for
themselves when, and to what extent, information about them is communicated to
others” [p. 7].
8. Roe v. Wade, 410 U.S. 133 (1973).
9. Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972).
10. Ken Gormley, One Hundred Years of Privacy, Wisconsin Law Review, pp. 1335-1441
(1992).
11. Gormley described how “the industrialization and urbanization of America in the late
1800s . . . threatened the ability of individuals to regulate . . . information concerning
themselves, an essential function if they were to help mold the perceptions society
would form of them, the essence of individuality” [10, p. 1434].
12. Gormley noted that fundamental-decision privacy, such as whether to have an abortion
and how to raise one’s family, has links to equality [10, pp. 1434-1438].
13. Gay Law Students Association v. Pacific Telephone & Telegraph Company, 595 P.2d
592, 599 (Cal. 1979). The ruling included: “An individual’s freedom . . . to work and
12 / KOVATCH

earn a living has long been recognized as one of the fundamental and most cherished
liberties enjoyed by members of our society. . . .” [at 599].
14. Julie A. Flanagan, Restricting Electronic Monitoring in the Private Workplace, 43
Duke Law Journal, pp. 1256-1281, 1262 (1994).
15. David Neil King, Privacy Issues in the Private Sector Workplace: Protection from
Electronic Surveillance and the Emerging “Privacy Gap,” Southern California Law
Review, pp. 441-474 (1994).
16. O’Connor v. Ortega, 480 U.S. 709 (1987).
17. Thomas P. Klein, Electronic Communications in the Workplace: Legal Issues
and Policies, Handbook: 563 (New York: Practicing Law Institute/Pat., 1999),
pp. 695-754.
18. Commonwealth v. Parker, 422 Pa.Super. 393 (1993).
19. Omnibus Crime Control and Safe Streets Act, Public Law No. 90-351, 82 Stat. 197,
211-225 (1968).
20. Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2510(5)(a). The act
exempts interceptions occurring “in the ordinary course of . . . business” from the
definition of interceptions.
21. Briggs v. American Air Filter Co., Inc., 630 F.2d 414 (1980). The court found the
defendant employer had acted in the ordinary course of business when it monitored an
employee’s telephone calls to a competitor who was also a friend of the employee as
well as a former employee of the defendant. According to the court, the employer had
reason to suspect its employee was discussing confidential information with former
employee.
22. Larry O. Gantt, An Affront to Human Dignity: Electronic Mail Monitoring in the
Private Sector Workplace, 8 Harvard Journal of Law and Technology, pp. 345-425
(1995).
23. Restatement (Second) of Torts, § 625B (1977).
24. Kurt H. Decker, Employer Privacy Law and Practice (Amityville, N.Y.: Baywood
Publishers, 1987; Supplement, 1997). The author discussed the lack of remedies
available to most private sector workers for invasion-of-privacy claims.
25. Smyth v. Pillsbury Co., 914 F. Supp. 97 (E.D. Pa. 1996).
26. Doe v. B.P.S. Guard Services, Inc., 945 F2d 1422, 1427 (8th Cir. 1991). The court held
the security-guard firm liable for the invasion of privacy that occurred when guards
videotaped models changing clothes in the dressing area at a fashion show.

Direct reprint requests to:

Paul Kovatch
6130 Springford Drive
Apt. K6
Harrisburg, PA 17111
 J. INDIVIDUAL EMPLOYMENT RIGHTS, Vol. 9(1) 13-25, 2000-2001

WHEN DOES AN EMPLOYER VIOLATE AN

EMPLOYEE’S FOURTH AMENDMENT RIGHTS?
CASE LAW AND APPLICATIONS

THERESA ZECHMAN
Widener University School of Law at Harrisburg, Pennsylvania

ABSTRACT
This article will attempt to provide answers about the extent of an employee’s
4th Amendment rights. The first section will provide an overview of the
requirements of the 4th Amendment. The following sections will explore
specific issues including urinalysis, the privacy of an employee’s desk, video
surveillance, and lockers.

Joe, a truck driver for Trucking Inc., arrives at work to begin his shift. Following
normal protocol, he places his jacket and other personal belongings in his locker in
the employees’ locker room in the Trucking Inc. terminal. Joe talks with the other
employees in the locker room who are changing their clothes as their shift has
ended. Unbeknownst to Joe and his fellow employees, Trucking Inc. is watching.
Placed in the smoke alarm above their lockers is a minuscule video camera which
records the employees’ every move. Has Joe’s 4th Amendment right to be secure
in his person and free from unreasonable search and seizures been violated?
It depends.

THE FUNDAMENTAL CASE LAW

The 4th Amendment to the United State Constitution provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.

13
Ó 2000, Baywood Publishing Co., Inc.
14 / ZECHMAN

There is a limit to the application of the 4th Amendment. The U.S. Supreme
Court has “recognized that the principal object of the Amendment is the protection
of privacy rather than property. . .” [1]. To violate the 4th Amendment, there needs
to be: 1) state action; 2) search and/or seizure; and 3) a reasonable expectation
of privacy. If any of these elements is absent there is no violation.

STATE ACTION
Initially the court must determine whether or not there has been state action.
Fourth Amendment protection is only applicable when there has been state action,
no matter how unreasonable and intrusive the search may have been. In deter-
mining whether a private party is acting as an agent for the state, the court will
consider “1) the government’s knowledge and acquiescence, and 2) the intent of
the party performing the search” [2].
In U.S. v. Williams, the defendant took his automobile to the shop to be repaired
because the engine was frozen. The owner of the repair shop allowed him to leave
his vehicle at the shop. After the defendant’s visit, the owner discovered money to
be missing. The owner contacted the police and notified the police officer that he
suspected the defendant stole the money. The police officer, without a warrant,
searched the defendant’s vehicle and seized a number of items in an effort to
ascertain the defendant’s identity. The officer left the items on the floor of the
repair shop and departed. In an effort to clear the floor of the shop, the owner
picked up the items and in doing so, looked through a sack which belonged to the
defendant. The owner discovered contraband and notified the police. The Williams
court held the owner’s search was conducted by his own choice and therefore
was not acting as an agent for the state. However, the evidence was suppressed
because the initial search conducted by the police which led the owner to discover
the contraband was illegal.
Whether a private company was acting for the state was the core issue in
Jackson v. Metropolitan Edison Co. [3]. In Jackson, the United States Supreme
Court was asked to determine whether a customer of a private utility company
should be afforded constitutional protection because a utility company is
heavily regulated by the state and held a partial monopoly in the area. In analyz-
ing the extent of state involvement, the Court determined that “acts of a
heavily regulated utility with at least something of a governmentally protected
monopoly will more readily be found to be “state” acts than will acts of an
entity lacking these characteristics. But the inquiry must be whether there is a
sufficiently close nexus between the State and the challenged action of the
regulated entity so that the action of the latter may be fairly treated as that of the
State itself” [3, at 352].
In determining whether there was a sufficient nexus, the Court reviewed the
state regulation which governed the utility company. The Court pointed out that
where a private entity had been vested with the performance of a duty or action that
 CASE LAW AND APPLICATIONS / 15

is normally reserved to the state, the Court will find state action. However, the
Supreme Court held that: 1) utility service is generally not the responsibility of the
state; 2) there is no sufficient nexus between the utility company and the state;
3) the state did not lease any property or facilities to the company; and 4) the
company and state were not connected by any joint ventures [4]. The Court ruled
that the action of the utility company was not state action and therefore no
constitutional protection was provided to the customer.
In contrast to Jackson, state action has been found where the federal government
has enacted extensive regulations which private companies are statutorily obli-
gated to comply with such regulations. In Skinner v. Railway Labor Executives’
Association, the Federal Railroad Administration promulgated regulations
requiring drug and alcohol testing for any railroad employee involved in an
accident. Although railroad companies are private companies, they must abide
by the regulations of the Federal Railroad Administration. After reviewing the
government’s participation, the Supreme Court held that the railroad companies
were obligated to comply with the regulations and there “are clear indices of the
Government’s encouragement, endorsement, and participation, and suffice to
implicate the Fourth Amendment” [5, at 615-616]. But in Kipp v. LTV Aerospace
and Defense, no state action was found where a private employer had a contract
with the federal government and that contract required the company to implement
a drug testing program for its employees [6]. The Kipp Court distinguished
Skinner by the fact that the “federal government did not require them to bid for
defense contracts; they freely entered into these defense contracts.”
One could question the validity of the outcome of the Kipp case. The company
was not forced into the contract, but an aerospace and defense company is
undoubtedly limited in the number of customers they can attract. Additionally, the
defense work contracted to Kidd was undoubtedly the domain of the government,
and if the company did not implement the drug testing policy, it would not get
the contract. In short, this could be considered a joint venture between the
company and the government, thereby extending the concept of state action to the
private company.
State action has been found where a regional transportation authority acquired
a private mass transit system, and then contracted with a private firm to manage
that transit system [7]. The regional transportation authority, despite relin-
quishing day-to-day control to a private entity, retained actual ownership of
the assets of the transit system. Therefore, any action of the transit system
would be considered state action even though the private entity would carry out
the action.

HAS A SEARCH OR SEIZURE OCCURRED?

Upon finding state action, the court will determine whether or not a search
has in fact occurred. “A search implies an examination of one’s premises or person
16 / ZECHMAN

with a view to the discovery of contraband or evidence of guilt to be used

in prosecution of a criminal action. The term implies exploratory investi-
gation or quest” [8]. If there is no search, the 4th Amendment does not come
into play.
There is no search when someone simply looks into a car or home if they have a
lawful right to be in that particular area. If someone allows an object to be subject
to a public audience, then they cannot complain when someone in the public
actually views that object. In Haerr v. United States, the defendants were in an
automobile that was stopped by Immigration Patrol Inspectors at the border [8].
When one of the inspectors shined his light in the area of the backseat, the
defendant leaned forward to hide boxes that were placed on the floor. Upon
noticing the boxes, the inspector questioned the contents of the boxes. The
defendants immediately drove away and threw the boxes out the window of the
vehicle. The inspectors picked up the boxes and discovered contraband. The Haerr
court held that there was no search because the inspectors are permitted to stop and
question those who cross the border. Looking into a vehicle does not constitute a
search and there is no seizure of the boxes because the inspectors were permitted to
retrieve the boxes.
Additionally, in Vega-Rodriguez v. Puerto Rico Telephone Co, a public
employer subjected the employees to video surveillance [9]. The court stated that
“the mere fact that the observation by a video camera rather than the naked eye,
and recorded on film rather than in a supervisor’s memory, does not transmogrify a
constitutionally innocent act into a constitutionally forbidden one” [9, at 181]. The
employer was permitted to videotape the employees’ activities because the same
conduct could have been observed through the hiring of a monitor to observe the
employees. Therefore, no search had taken place because the activities were in
plain view of the camera or a supervisor.
“A ‘seizure’ of property occurs when there is some meaningful inter-
ference with an individual’s possessory interests in that property” [10]. There
need not be a search for a seizure to occur [11]. In Lesher v. Reed, Lesher was
a police officer who was assigned a dog which was to be part of the canine
squad. The police department owned the dog; however, pursuant to an agree-
ment with the Department, Lesher was responsible for its care and custody.
In accordance with the agreement, if the dog was not accepted as part of the
canine squad, Lesher could have custody of the dog or the police department
could dispose of it. After the dog bit a child, the police department determined
that the dog was not fit for the canine squad and planned to have it killed. Fellow
police officers arrived at Lesher’s home to retrieve the dog. Lesher informed the
police department that he wanted custody of the dog, and he released the dog only
after being told he would be terminated if he did not do so. Subsequent to Lesher’s
release of the dog, he was demoted. The Lesher Court held that there was a seizure
of the animal and although Lesher was a public employee, he should have been
afforded the same constitutional protection at his home as a private citizen.
 CASE LAW AND APPLICATIONS / 17

EXPECTATION OF PRIVACY
Once it is determined that a search and/or seizure has occurred the next inquiry
is as to the reasonableness of one’s expectation of privacy. The United States
Supreme Court has held that a person needs to have a reasonable expectation of
privacy [10, at 114]. An expectation is reasonable if it is an expectation that society
will recognize as reasonable. If someone has an unreasonable expectation of
privacy, even though there may be a search and state action, there is no violation. It
is only after an expectation is deemed reasonable that a court will determine
whether a person’s rights have been infringed.

APPLICATION OF THE CASE LAW

Urinalysis
Many employers have implemented urine testing of their employees to test for
drugs and alcohol. Private employers have been permitted to engage in virtually
unlimited testing of their employees as a means of an employee obtaining or
retaining a job. A private employer was permitted to require applicants who were
offered a position to partake in urine testing for drugs and alcohol. In Wilkinson,
et al. v. Times Mirror Corp., two applicants were offered the position of legal
writer on the condition that they pass a medical examination and a urine test for
drugs and alcohol [12]. The tests were performed at a medical clinic. The clinic
would, after testing, give each applicant a numerical rating from one to five
designating his or her suitability for employment. A rating of five indicated a
failure of the drug and alcohol test or it could mean that the applicant failed
due to a disqualifying medical condition. If an applicant received a five, they
were permitted to reapply for employment in six months. The details of the
medical testing were not released to the company. Because there was no
state action, the company was free to implement this policy and have it validated
by the courts.
In contrast, the legislature in Georgia enacted the Applicant Drug Screening Act
which required all applicants for employment with the state to undergo urine
testing to detect illegal drugs. In Georgia Association of Educators v. Harris, the
court found that the state had “failed to specifically identify any governmental
interest that is sufficiently compelling to justify testing all job applicants” [13].
The state’s only justification was a “generalized governmental interest in main-
taining a drug-free workplace” [13]. The court held that this generalized justifi-
cation was not sufficient and found the Applicant Drug Screening Act violated
the 4th Amendment of the United States Constitution.
Employees can be terminated by a private employer if they refuse to submit to a
urine test. In Kelly v. Mercoid Corporation [14], the company manufactured and
handled mercury. In order to determine whether any employees have been exposed
18 / ZECHMAN

to the toxic mercury, all employees were required to take a urine test. The plaintiff
employee was required to take the urine test, even though her position never
required her to come in contact with mercury. The company fired the plaintiff
employee when she refused to take the urine test. The court found no 4th
Amendment violation because of the lack of state action.
If private employees are forced to undergo drug/alcohol testing pursuant
to federal regulations, the 4th Amendment is applicable. In Skinner, discussed
above, the Federal Railroad Administration promulgated regulations to address a
drug/alcohol problem among railroad employees [5]. The rules required that in the
event of an accident that involves a fatality, the release of hazardous material
accompanied by an evacuation or a reportable injury, or damage to railroad
property of $500,000 or more, the employee is to undergo a urine test to detect the
presence of drugs and alcohol [5, at 609]. The Supreme Court concluded that
society does recognize that such testing intrudes upon a person’s expectation of
privacy and is to be considered a search and quite possibly a seizure within the
parameters of the 4th Amendment, since a person would have a possessory interest
in their bodily fluids [5, at 617].
In analyzing the constitutionality of the regulations, the Skinner Court held that
the tests were reasonable because the government has a compelling interest in the
health and safety of the public and the railroad employees; there was no need to
obtain a warrant because the regulations defined when the testing was to occur;
and because this was a special need beyond law enforcement, no warrant was
needed prior to testing an individual. Perhaps most importantly, there was no need
to have individualized suspicion prior to the testing because the government’s
interests were compelling and outweighed the employees’ privacy expectations.
The leading case for urinalysis for public employers is National Treasury
Employees Union v. Von Raab [15]. In this case, the U.S. Supreme Court reviewed
the drug-testing program adopted by the Commissioner of the United States
Customs Service. This program required all employees who sought a promotion
to positions that required the employee to be in direct involvement in drug
interdiction or carry firearms or handle “classified” material, to submit to a urine
test to detect the presence of various illegal drugs. Any results were not to be used
in a criminal prosecution without the consent of the employee.
The Supreme Court determined that since the employee is only tested when
seeking a promotion into one of the specified positions, the drug test was auto-
matic. The Service would not make a discretionary determination to search based
on a judgment that certain conditions were present. Furthermore, there was no
need for the search to be based on the criminal standard of probable cause because
that standard is not used in administrative searches. The Court pronounced that
“the Government’s need to conduct the suspicionless searches required by the
Customs program outweighs the privacy interests of employees engaged directly
in drug interdiction, and of those who otherwise are required to carry firearms”
[15, at 668]. The Court also recognized that the employees would also have a
 CASE LAW AND APPLICATIONS / 19

diminished expectation of privacy because of the nature of the positions covered

by the regulations.
The Customs Service employees who sought a promotion into a position which
would cause the employee to come in contact with classified information were also
required to undergo urine testing. The Court concluded that the Customs Service
failed to provide evidence as to why employees who had access to classified
material were to be tested. The Court remanded to the Court of Appeals to
determine “what materials are classified and in deciding whom to test under
this rubric. . . . [t]he court should also consider pertinent information bearing upon
the employees’ privacy expectations, as well as the supervision to which these
employees are already subject” [15, at 678].
The Supreme Court held that “the suspicionless testing of employees who apply
for promotion to positions directly involving the interdiction of illegal drugs, or
to positions that require the incumbent to carry a firearm, is reasonable. The
Government’s compelling interest in preventing the promotion of drug users to
positions where they might endanger the integrity of our Nation’s borders or the
life of the citizenry outweigh the privacy interests of those who seek promotion to
these positions, who enjoy a diminished expectation of privacy by virtue of the
special, and obvious, physical and ethical demands of those positions” [15, at 679].
In American Federation of Government Employee, Local 1533 v. Cheney, the
Von Raab holding was applied to the U.S. Navy [16]. In Cheney, the court
analyzed the Navy’s automatic drug testing program. The testing program
required the Navy to test 80,000 civilian employees randomly in over 100 different
jobs and test over 300,000 civilian Navy employees worldwide after an accident
or based on reasonable suspicion.
In reviewing the random testing, the Cheney court held that the automatic
testing of employees who hold top secret clearances is constitutional because these
employees have access to information which pertains to national security and
disclosure of this information poses a risk to the nation. Additionally, these
employees are required to undergo extensive background checks in regular inter-
vals and therefore these employees have a diminished expectation of privacy.
However, the Navy also would randomly test employees based on their job
function. The court held that this type of testing was unconstitutional because
the Navy failed to demonstrate any compelling government interest for testing
employees holding the designated positions and the program allowed officials to
have broad discretion in choosing employees for the testing.
The Navy had designated for testing a number of positions involving main-
tenance and operation of equipment, national security, protection of life and
property, drug/alcohol rehabilitation, and law enforcement. The court found that
the only category in which random testing is permitted would be law enforcement.
The other categories were not so designated, particularly since the Navy failed to
show a nexus between the dangers of intoxicated employees and a threat to the
safety of the public as well as a compelling government interest.
20 / ZECHMAN

The Navy regulations also required testing for any employee involved in an
accident on the job or when the employee’s supervisor had reasonable suspicion.
The court held that the Navy failed to demonstrate a nexus between the post
accident testing and public safety. However, the court also found that the Navy
was permitted to test an employee where an employee’s supervisor had a reason-
able suspicion that the employee was either intoxicated or drug impaired.
In a similar vein, in Taylor v. O’Grady, the Seventh Circuit examined the
urine testing requirements of the Department of Corrections employees. The court
upheld the testing program, but not for employees who have: 1) no regular access
to inmate population; 2) no reasonable opportunity to smuggle drugs into the
inmate population; and 3) no access to firearms” [17].
In summary, a public employer may conduct suspicionless urinalysis testing for
any one of three reasons: 1) maintaining the integrity of workers in executing their
essential mission; 2) enhancing public safety; and 3) protecting truly sensitive
information [16, at 1419]. The courts will look closely for a nexus between the
testing and the purpose. There must be some connection between the purpose of
the test and the harm that the test is to prevent.

Search of Desks

A public employee has a reasonable expectation of privacy in the contents of

his/her desk or contents thereof. In O’Conner v. Ortega, Dr. Ortega, a psychiatrist
employed by a state hospital, was placed on administrative leave while being
investigated for a number of infractions [18]. The hospital’s policy permitted an
inventory search for terminated employees. An official of the hospital conducted
a search of Ortega’s desk, even though Ortega was only on leave and had not
been terminated. Ortega was later terminated, partially because of some of the
items found in his desk during the search, and the seized items were used against
him at an administrative hearing.
The Supreme Court stated that “[i]ndividuals do not lose Fourth Amend-
ment rights merely because they work for the government instead of a private
employer. . . . The employee’s expectation of privacy must be assessed in the
context of the employment relation” [18, at 733]. The Court determined that even
though the office staff of the hospital may have had access to the office, Ortega had
a reasonable expectation of privacy in his file cabinets as well as his desk. But the
Court also stated that the employee’s expectation of privacy does not require an
employer to obtain a warrant whenever it wants to enter an employee’s office or
desk for work related purposes. Public employers have an interest in workplace
efficiency and the employer is not in the business of seeking out criminal activity.
Thus, it would be impractical to require the employer to articulate the prob-
able cause standard required to obtain a warrant. The Supreme Court ultimately
remanded the case to the District Court to “determine the justification for the
 CASE LAW AND APPLICATIONS / 21

search and seizure, and evaluate the reasonableness of both the inception of the
search and its scope” [18, at 729].
The Supreme Court of Louisiana was later required to apply the law of Ortega
in State v. Ziegler [19]. In Zeigler, supervisors from the State Bureau of Vital
Statistics conducted a search of forty workstations after business hours after
receiving evidence that fraudulent birth certificates had been issued from their
office. The supervisors did not have any warrants or reasonable suspicion of any
particular employee. The supervisors searched desks, drawers and shelves, but not
personal items such as purses or briefcases. No desks or drawers were equipped
with locks. The search located evidence which incriminated an employee.
In reviewing the constitutionality of the search, the Louisiana Supreme Court
utilized the two-prong test laid out in O’Conner v. Ortega: 1) “the employee must
have a reasonable expectation of privacy in the area searched, or in the item
seized; and 2) if a reasonable expectation of privacy exists, the search should be
reasonable under all the circumstances. ‘Under this reasonableness standard, both
the inception and the scope of the intrusion must be reasonable.’”
The Zeigler court determined that the openness of the office space and lack of
locking mechanisms limited the defendant’s reasonable expectation of privacy.
The search was also deemed to be justified at its inception because the evidence
indicated clearly that the fraudulent birth certificates came from this office.
Moreover, the scope of the search was permissible because: 1) it was conducted
after work when employees would have taken home any personal items; 2) no
purses or briefcases that remained in the office were searched; and 3) the search
was limited to a particular department. The Court held that the search was
“reasonable despite the absence of individualized suspicion.”
In summary, public employees should be aware that their employer may search
the contents of their desks and workspace. If the employee is the only person to
have access to the desk or particular property, this would demonstrate evidence
that the employee would have an expectation of privacy in that particular property.
Once an employee has an expectation of privacy, the search that is conducted must
be reasonable under the circumstances. An employer does not need to obtain a war-
rant to search the employee’s workspace if the search is for a work related purpose.
Video Surveillance
Since employers cannot personally monitor every move of the employees, some
have opted to employ the use of video surveillance. In Thompson v. Johnson
County Community College [20], the employer installed a video surveillance
camera in an employee locker area. The locker area was also a storage area, was
not locked, and many employees of the college had access to the area. The camera
was installed because of allegations of theft and of employees bringing weapons
onto campus. During the period of time the surveillance camera was in operation,
the college did not uncover any evidence of theft or any violations of the college’s
weapon policy.
22 / ZECHMAN

After noting that silent video surveillance is subject to 4th Amendment

prohibitions against unreasonable searches, the court addressed two questions:
1) whether the plaintiffs had a reasonable expectation of privacy, and 2) whether
the search was reasonable [20, at 507]. The Thompson Court concluded that the
plaintiffs could not have a reasonable expectation of privacy because the area
was not enclosed, not locked, and many people had access to the area. In addition,
the Court concluded the college’s purpose for video surveillance was work related
and reasonable.
In contrast, in State of Hawaii v. Bonnell, the post office received anonymous
information that employees were gambling on the premises [21]. Working
with local police, the postal officials had video surveillance cameras installed
in smoke detectors and a burglar alarm in the employee break room. Over
1200 hours of footage was taken during the workday over the course of a year.
As a result of the surveillance, six employees were charged with gambling,
promoting gambling, and possession of gambling records, all misdemeanor
charges.
The Court concluded that there was “no special or exigent circumstances that
would have justified a warrantless search in this case; it can hardly be said that the
[police department] was faced with any sort of ‘emergency’” [21, at 1273]. The
Court also concluded that the employees had a reasonable expectation of privacy
in their break room. Only postal employees and invited guests were allowed in the
room. Accordingly, the defendants were in a position to regulate their conduct.
“When seated in the break room, the defendants could see anyone approaching and
could avoid being surprised by an untrusted intruder” [21, at 1276]. The Court
suppressed the video surveillance at the defendants’ criminal trial.
The analysis that the Court used in the Bonnell case differs from that used in
Thompson. In Thompson, other employees could enter the locker area and the
employees did not have a reasonable expectation of privacy. The Bonnell Court
pointed out that only employees or their guests were permitted in the break room.
When someone the employees were not familiar with entered the break room, they
could change their actions and speech. Therefore, the employees had a reasonable
expectation of privacy. Of note, the employees in Thompson changed their clothes
in the locker area and they still did not have a reasonable expectation of privacy,
yet the employees in Bonnell were in a break room which was not an area where
the employees changed their clothes or stored personal belongings, and these
employees had a reasonable expectation of privacy.
In summary, if an employer has a work related justification for the video
surveillance, the employer will generally be allowed to do so. However, it would
be best to avoid areas were the employees have an obvious expectation of privacy.
Despite the outcome in Thompson, an employer should be extremely hesitant
about installing video surveillance in a locker area or restroom where the
employees could be in various stages of undressing or engaging in extremely
private acts.
 CASE LAW AND APPLICATIONS / 23

Lockers

Since many employees lead hectic lives, at times they are required to bring
personal items to work in order to run errands or go directly to a personal
appointment. And, of course, many employees have lockers where they can place
these personal belongings. In Dawson v. State of Texas, the defendant was an
exotic dancer who worked at the Showtime Club [22]. The police received an
anonymous tip that someone had stored illegal drugs in the locker room of
the club. The police went to the club and informed the club’s manager of the
allegation, and the club’s manager conducted a search of the lockers. Since the
defendant’s locker was locked, the manager, with the police present, requested that
the defendant remove the lock. The manager searched the locker as well as the
defendant’s purse and found drugs in her purse. The manager later testified that
he had worked at many clubs and the dancers were all aware that their lockers
were subject to be searched, however, he had not told the same to the defendant.
The Court determined that the manager of the club was working as an agent of
the police and therefore the 4th Amendment was applicable. Initially, the Court
had to determine whether the defendant had a reasonable expectation of privacy in
her locker. Even though the defendant did not own the locker, the Court ruled that
she had a reasonable expectation of privacy because she had a possessory interest
and had a legal right to be on the premises. In addition, the Court held that “where
an employee who is hired to dance or perform has been issued a private locker
by her employer on which she has placed a lock, it is reasonable to expect that
her belongings will be stored without being subject to search unless she has
been placed on notice of the possibility of such a search” [22, at 370].
Next, the Court analyzed whether the defendant consented to the search and
whether the manager could provide the requisite consent for a warrantless search.
The Court determined that the defendant’s submission to authority did not amount
to voluntary consent. In addition, “one who has an equal right of control or
possession of premises generally does not thereby have authority to consent to a
search of an area on the premises which is set aside for the exclusive use of the
other.” The manager “did not have common authority over appellant’s locker and
could not validly consent to the search.” Therefore, the search of the defendant’s
locker violated the defendant’s 4th Amendment rights [22, at 368, 372].
However, where rules are promulgated which authorize random locker
searches, the employees’ expectation of privacy is reduced. In Chicago Fire
Fighters, Local 2 v. Chicago, the Chicago Fire Department announced to the
firefighters that semi-annual locker inspections would be conducted [23]. Because
the working conditions at the fire houses were strictly regulated and controlled, the
individual fire fighter’s expectation of privacy was diminished. Accordingly, the
locker searches did not infringe on a valid expectation of privacy.” The court
dismissed the plaintiffs’ claim they had no knowledge of the regulation. The Court
acknowledged that the fact that even though they may not have been aware of the
24 / ZECHMAN

regulation, they were “charged with constructive knowledge of the rules and
orders . . .” [23, at 974]. In assessing the reasonableness of the search, the Court
held that the search was lawful and that “[t]he substantial interest of the CFD, on
behalf of the public . . . in assuring that all fire fighters are able to perform their jobs
safely and effectively greatly outweighs the fire fighters’ expectation of privacy in
their station house wall lockers” [23, at 976].
In summary, an employee has a reasonable expectation of privacy in their
locker. Some factors which help to establish that there is a reasonable expectation
of privacy are the employee has exclusive possession or control of the locker; the
employee has the only key or combination; and the employer does not have a
locker search policy. If the employer wants to be able to search the employees’
lockers, there should be a policy to inform the employees the lockers could be
searched at any time.

CONCLUSION

The courts are gradually cutting away employees’ 4th Amendment rights.
As a private employer, it is important to notify all employees that the desks,
lockers and other company issued property are subject to search at any time
and for any reason or no reason at all. The courts also have allowed private
employers much discretion in the use of urine testing, but some protection may be
afforded employees through state legislation. (Please see discussion of this topic
by Kovatch in this volume.)
However, public employers are controlled by the Constitution. As the
questions arise as to the reasonableness of the searches conducted by the
employer, the courts are finding the government’s interests to be more com-
pelling than the privacy interests of the employees. This is quite disturbing
because the U.S. Supreme Court clearly expressed concern that the govern-
ment must have a compelling reason and not an arbitrary or generalized interest
reason.
Of additional concern is when the employer, private or public, conducts a search
and uses the information found in the search for a subsequent criminal
prosecution. This is important because when an employer conducts a search it
should be out of work related concerns, not to seek out criminal activity. If an
employer believes criminal activity is afoot, then the proper authorities should be
contacted, especially if the employer is the government. The employer’s job is to
maintain efficient operations of their companies, not to deputize themselves as
crime fighters.
The best advice for employees is to not take anything into the work place that
they are not willing to have the employer see. Even if the search is found to be
unlawful, thereby violating the 4th Amendment, the chances are good that the
employee will be without a job.
 CASE LAW AND APPLICATIONS / 25

* * *
Theresa Zechman received her J.D. from the Widener University School of Law
at Harrisburg, Pennsylvania. She is currently employed at Stevens and Lee in
Lancaster, Pennsylvania.

ENDNOTES

1. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 304 (1967).

2. U.S. v. Williams, 827 F.Supp. 641, 645 (D. Org. 1993).
3. 419 U.S. 345, at 351 (1974).
4. In Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), the Court found
sufficient nexus where a restaurant, accused of racial discrimination, leased parking
space from the state.
5. 489 U.S. 602.
6. 838 F.Supp. 289, 8 IER 1565 (N.D. Tex. 1993).
7. Craft v. Pace of South Holland, 803 F.Supp. 1349 (N.D. Ill. 1992).
8. Haerr v. U.S., 240 F.2d 533, 535 (5th Cir. 1957).
9. 110 F.3d 174 (1st Cir. 1997).
10. U.S. v. Jacobsen, 466 U.S. 109, 113 (1984).
11. Lesher v. Reed, 12 F.3d 148 (8th Cir. 1994).
12. 4 IER 1579 (1st Cir. 1989).
13. 5 IER 1377, 1380 (N.D. Ga. 1990) (emphasis in the original).
14. 776 F.Supp. 1246 (N.D.Ill. 1991).
15. 489 U.S. 656.
16. 754 F.Supp. 1409 (N.D. Cal. 1990).
17. 888 F.2d 1189 (7th Cir. 1989).
18. 480 U.S. 709.
19. 637 So.2d 109 (1994).
20. Thompson v. Johnson County Community College, 930 F.Supp. 501 (D. Kan. 1996)
(affirmed 108 F.3d 1388).
21. 856 P.2d 1265 (Hawaii 1993).
22. 868 S.W.2d 363 (Tex. App. 1993). Petition for discretionary review denied.
23. 717 F.Supp. 1314 (N.D. Ill. 1989), 4 IER 970.

Direct reprint requests to:

Theresa M. Zechman
Stevens and Lee
25 North Queen Street, Suite 602
P.O. Box 1594
Lancaster, PA 17608-1594
 J. INDIVIDUAL EMPLOYMENT RIGHTS, Vol. 9(1) 27-37, 2000-2001

EMPLOYEE E-MAIL:
A PROTECTED RIGHT TO PRIVACY?

BRANDY L. SCOTT
Harrisburg, Pennsylvania

ABSTRACT
This article examines the constitutional, statutory, and common law protec-
tion given to employee e-mail that is either transmitted or stored on the
employer’s communication system. The article looks at the protection given
to employee e-mail by the U.S. Constitution, a number of federal and
state statutes, and recent court decisions and it provides a policy exemplar
for companies to consider. While the law is not fully settled, rarely have
employee e-mail communications been accorded protection under concepts
of privacy.

Currently no federal laws regulate electronic surveillance in the workplace, and

most states do not have laws restricting electronic monitoring at work [1]. This
article discusses the law as it pertains to employees’ right to privacy regarding
the use of workplace e-mail for personal reasons. The article outlines constitu-
tional law, common law, and Electronic Communication Act of 1986, and the
Omnibus Crime Control and Safe Streets Act of 1968 (OCCSSA), as well as
recognizing current case law dealing with an employee’s right to the use of e-mail
for personal use.

CONSTITUTIONAL LAW
The general right of privacy is implicitly rooted in the Fourth Amendment to the
United States Constitution. That amendment provides that “the right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated . . .” [2]. The United States Supreme

27
Ó 2000, Baywood Publishing Co., Inc.
28 / SCOTT

Court has explicitly recognized the right of privacy pursuant to the Fourth Amend-
ment in cases such as Griswold v. Connecticut [3] and Katz v. United States [4].
However, the Fourth Amendment applies only to governmental participants,
thereby protecting employees in the public sector workplace, but not in the
private sector.
Supreme Court’s landmark ruling in O’Connor v. Ortega defines the extent
to which the Fourth Amendment protects employee privacy in the public
employment [5]. In Ortega, a psychiatrist charged state hospital officials with
violating his Fourth Amendment rights after they searched his office and seized
various items from his desk and file cabinets. The Court held that the propriety
of a workplace search, at its inception and in its scope, “should be judged by
the standard or reasonableness under all circumstances” [5, at 725-726]. The
Court concluded that under this standard, the Fourth Amendment is violated
only if public employees have “an expectation of privacy that society is prepared
to consider reasonable [5, at 715, citing 11]. This standard requires balancing the
employer’s need for control and supervision of the workplace against the privacy
interests of employees [5, at 719-720].

COMMON LAW
An employee could bring a common law cause of action against a private
employer when the employer obtains access to the employee’s workplace e-mail.
There are two common law causes of action in this situation: the privacy tort of
intrusion upon seclusion and intentional infliction of emotional distress.
The intrusion upon seclusion tort is defined as follows: “One who intentionally
intrudes, physically or otherwise, upon the solitude or seclusion of another or his
private affairs or concerns, is subject to liability to the other for invasion of his
privacy, if the intrusion would be highly offensive to a reasonable person” [6, at
652B]. If an employee is to succeed in bringing this action s/he has to prove that an
employer’s access to the e-mail communications was a highly offensive intrusion
to a reasonable person. One commentator has stated that “if an employer obtains
information about the employee through the employer’s . . . computer system . . .
the employee will have much greater difficulty in winning an invasion of privacy
lawsuit.” As a result, employees usually do not succeed when bringing an intrusion
upon seclusion claim against their employer for e-mail monitoring.
Second, employees may bring a claim against their employers for intentional
infliction of emotional distress resulting from e-mail monitoring in the workplace.
In defining the tort of intentional infliction of emotional distress, the Restatement
(Second) of Torts states that “one who by extreme and outrageous conduct,
intentionally or recklessly causes severe emotional distress to another is subject to
liability for such emotional distress, and if bodily harm to another results from it,
for such bodily harm [6, at 46]. Although this tort could be available to an
employee, it is unlikely that a court would characterize an employer’s access to an
 EMPLOYEE E-MAIL / 29

employee’s e-mail to be extreme and outrageous conduct [7]. Therefore, except in

the most “extreme and outrageous” circumstances, an employee’s intentional
infliction of emotional distress cause of action would most likely fail.

THE CALIFORNIA APPROACH

Possibly foreshadowing the future, in September 1999, the California Legis-
lature sent Gov. Gray Davis a bill that would prohibit employers from secretly
monitoring the electronic mail or other personal computer records of their
employees, unless the employees have been notified of company policies allowing
such monitoring [9]. The proposed bill did not pass, but it set forth new privacy
rights for public and private sector employees by giving employees the right to
know whether they may be monitored. Employers would be required to prepare
and distribute copies of their policies and practices on workplace privacy and
electronic monitoring to all employees. Affected employees would be required to
sign or electronically verify the notices to acknowledge they have read the policies
and understand them. If an employee declined to sign the policies, an employer
still would comply with the law if the person who provided the policies to the
employee signed a statement that the employer received the policies.
The bill would have given employees the right to have access to records their
employer collects through electronic monitoring, and the right to dispute and
correct that information. The bill would define “secret monitoring” as inspecting,
reviewing, or retaining personal electronic mail or any other computer records
generated by an employee when an employer has not notified the employee of the
employer’s workplace privacy and electronic monitoring policies and practices.

THE ELECTRONIC COMMUNICATION ACT OF 1986

The United States Congress enacted the Electronic Communications Privacy
Act of 1986 (ECPA) [10] to amend the technologically out-of-date Title III of the
Omnibus Crime Control and Safe Streets Act of 1968 [11]. By 1986, Congress
realized that the existing laws protecting business and personal communications
had not kept pace with the development of communications and computer tech-
nology or with the changes in the structure of the telecommunications industry
[12]. In amending Title III of OCCSSA, Congress sought to “bring it in line
with technological developments and changes in the structure of the telecom-
munications industry” [12, p. 3]. In its discussion of technological advancements,
Congress specifically mentioned that e-mail required additional protection [12,
pp. 3-4]. The Senate Report described electronic mail in the following manner:
Electronic mail is a form of communication by which private correspon-
dence is transmitted over public and private telephone lines. In its most
common form, messages are typed into a computer terminal, and then
30 / SCOTT

transmitted over telephone lines to a recipient computer operated by an

electronic mail company. If the intended addressee subscribes to the service,
the message is stored by the company’s computer “mail box” until the
subscriber calls the company to retrieve its mail, which is then routed over
the telephone system to the recipient’s computer. If the addressee is not a
subscriber to the service, the electronic mail company can put the message
onto paper and then deposit it in the normal postal system. Electronic mail
systems may be available for public use or may be proprietary, such as
systems operated by private companies for internal correspondence [12, p. 8].

Access to Stored E-Mail: Title II of the ECPA

Cases involving employer access to stored e-mail messages are governed by

18 U.S.C. 2701 [13]. Under 2701, a person or entity violates the Stored Wire
and Electronic Communications and Transactional Records Access (Stored
Communications). If someone “intentionally accesses without authorization a
facility through which an electronic communication service is provided, courts
must sanction a violation of the Stored Communications Act for “commercial
advantage, malicious destruction or damage, or private commercial gain” with
more severity than other violations [13, at 2701(b).]
But the Stored Communications Act provides two exceptions for e-mail com-
munications: the provider exception and the user exception. First, under the
provider exception, the Stored Communications Act does not apply to conduct
authorized “by the person or entity providing a wire or electronic communications
service” [13, at 2701(c)(1)]. According to many commentators who interpret the
provider exception broadly, private employers who maintain a computer system
have the ability to peruse and disclose employee e-mail communications without
violating the Stored Communications Act [14, p. 925]. Second, under the user
exception, the Stored Communications Act does not apply to conduct authorized
“by a user of that service with respect to a communication of or intended for
that user” [13, at 2701(c)(2)].

Interception of E-Mail: Title III of the OCCSSA

as Amended by Title I of the ECPA

The interception of an e-mail communication is governed by Title III of

OCCSSA [17, at 2510-2521; 39-40]. Through Title I of the ECPA, Title III
of OCCSSA was amended to extend interception protection to “electronic com-
munication.” Under 18 U.S.C. 2511, an individual violates Title III of OCCSSA if
s/he “intentionally intercepts, endeavors to intercept, or procures any other person
to intercept or endeavor to intercept, any wire, oral, or electronic communications
[11, at 2511(1)(2)]. Damages for a violation of Title III of OCCSSA are more
severe than damages for a violation of the Stored Communications Act. Penalties
may include punitive damages, attorneys fees, and litigation costs.
 EMPLOYEE E-MAIL / 31

Title III of OCCSSA has exceptions that create allowable interceptions of wire,
oral, or electronic communications. Section 2520(d) of 18 U.S.C. provides three
good faith defenses to liability: 1) a court warrant or order, a grand jury subpoena,
a legislative authorization, or a statutory authorization; or 2) a request of an
investigative or law enforcement officer under section 2518(7) or this title; or 3) a
good-faith determination that section 2511(3) of the title permitted the conduct.
The ordinary course of business exception is found in Title III’s definition
section. Under this exception, an employer may intercept an employee’s e-mail
communications in the ordinary course of its business if it uses “equipment or a
facility, or any component thereof” furnished by the provider of the electronic
communication service in the ordinary course of its business [11, 2511(1)(1)
1994]. One commentator has separated cases dealing with employer liability under
the ordinary course of business exception of Title III of the OCCSSA into two
distinct branches: “legitimate business purpose” cases and “subject of the call”
cases [15, p. 239]. Cases involving the legitimate-business-purpose exception
focus on whether the employer had a legitimate business purpose to justify
the interception of the employee’s communication. Courts have held that
telephone monitoring to ensure better quality control and to reduce personal
use was an allowable interception under Title III’s ordinary-course-of-business
exception [16].

RECENT CASE LAW INVOLVING E-MAIL

IN THE WORKPLACE

As mentioned above, few cases exist involving an employee’s right to privacy

concerning e-mail communications. In 1996, two federal district courts and one
state court addressed the issue of e-mail privacy in the employment context. The
U.S. District Court for the District of Nevada decided the most recent employment
e-mail privacy case in Bohach v. City of Reno [17]. In Bohach, the plaintiffs, two
Reno, Nevada, police officers claimed the city of Reno had violated the federal
wiretapping statutes and their constitutional right to privacy when it 1) stored
messages sent over an “Alphapage” message system and 2) accessed the stored
messages from police department computer files. Their suit attempted to halt the
city’s investigation into their alleged misuse of communication equipment.
The district court held, first, that the plaintiffs suffered no constitutional injury
under the Fourth Amendment because they had no reasonable expectation of
privacy when using the Alphapage message system [17, p. 1234]. The court noted
that any subjective expectation of privacy was unreasonable because 1) the police
department notified all Alphapage users that their messages would be stored on the
network; 2) the department prohibited certain types of messages from being
broadcast via Alphapage; and 3) the Alphapage system was easily accessible to
anyone with access to the department’s computer system [17, p. 1235].
32 / SCOTT

Second, the district court held that the plaintiffs did not have a claim under
federal wiretapping statutes because no interception of electronic communications
occurred, and the city, as the provider of computer service under the ECPA, could
lawfully access any stored electronic communication on its Alphapage system.
The district court denied the plaintiff’s motion to prevent access to the stored
Alphapage messages [17, pp. 1236, 1237].
The U.S. District Court of the Eastern District of Pennsylvania addressed an
employee’s e-mail privacy rights in Smith v. Pillsbury Co. [18]. In Pillsbury, the
district court sought to determine whether an employee had a claim for wrongful
discharge after Pillsbury accessed the employee’s work-related e-mail communi-
cations [18, p. 98]. The plaintiff had sent e-mail messages to his supervisor that
the company concluded were “unprofessional.” Smith was then terminated. The
plaintiff relied on Borse v. Piece Goods Shop, Inc. [19] to support its proposition
that a tortious invasion of privacy may be a sufficiently clear mandate of public
policy to bar an at-will employment discharge. The district court noted, however,
that the Borse decision supported such a proposition only if an employer’s
invasion of privacy was substantial and highly offensive to the ‘ordinary
reasonable person.’ Applying this standard, the court first determined that the
plaintiff did not have a reasonable expectation of privacy in workplace e-mail
communications.
The court distinguished the present privacy intrusion from those in which a
person has a reasonable expectation of privacy, namely, urinalysis and personal
property searches. In addition, the court further differentiated this case because
the Pillsbury executives did not require the plaintiff to disclose any personal
information, as would have been the case in the urinalysis and personal property
search cases. The court determined the e-mail communications did not enjoy a
reasonable expectation of privacy even though Pillsbury had made assurances
to its employees that employee e-mail would not be intercepted. Once the
plaintiff had voluntarily transmitted the communication to another individual,
his supervisor, the court concluded that any reasonable expectation of privacy
was lost [20].
The court concluded that no reasonable person would find Pillsbury’s actions to
be a substantial and highly offensive invasion of an employee’s privacy interest.
Pillsbury’s interest in “preventing inappropriate and unprofessional comments or
even illegal activity over its e-mail system outweighs any privacy interest the
employee may have” [18, at 100]. In addition, the court noted that Pillsbury did
not force the plaintiff to disclose personal information; nor did it invade the
plaintiff’s person, as would be the case with a urinalysis or a personal property
search. The court therefore granted Pillsbury’s motion to dismiss.
In another case, a Massachusetts appellate court ruled on a trial court’s grant
of summary judgment in favor of the employer in Restuccia v. Burk Technology,
Inc. [21]. In Restuccia, an employer discharged two employees after reading
their e-mail messages stored in the employer’s backup computer files. The
 EMPLOYEE E-MAIL / 33

employees’ stored e-mail messages included messages containing nicknames

for the employer and messages detailing the employer’s extramarital affair with
another employee.
The trial court granted summary judgment for the employer on most counts,
including violations of the state wiretap law, intentional infliction of emotional
distress, tortuous interference with contractual relations, wrongful termination,
invasion of privacy, negligent infliction of emotional distress, and loss of con-
sortium. The superior court reversed the trial court’s summary judgment in regard
to all but one of the judgments. The court held the employer was entitled to
summary judgment only on the claims under the state wiretap statute [21].
In a more recent case, United States v. Simons, the defendant, a CIA employee,
was charged with violating 18 U.S.C. §2250(A) by using the Web to receive and
possess child pornography [22]. This 1998 case began with the observations of an
operations center manager. The manager noted that its Internet access log was very
large. When he searched on the word “sex,” he found a significant number of hits,
later traced back to the defendant’s work station. This led to a remote examination
of the defendant’s files, which management determined were pornographic. A
search warrant was issued and executed.
When indicted, Simons moved to suppress the evidence as an illegal search
and, therefore, a violation of the Fourth Amendment. Judge Cacheris denied
the motion, ruling that Simons had no expectation of privacy, particularly since
the office in which he worked had previously published an official policy on
“Permitted and Prohibited Official Use of the Internet.” In light of the policy, the
court did not find that the defendant had any reasonable expectation of privacy
with respect to any of his Internet activity. Accordingly, the searches of his
computer and his e-mail did violate the Fourth Amendment.

E-MAIL POLICIES IN THE WORKPLACE

An employer may provide employees with advance knowledge of how e-mail
will be treated in their employment context by creating an e-mail monitoring
policy [23]. The policy should clearly explain to employees the employer’s
intentions regarding workplace privacy [23]. Currently, it is estimated that only
one-third of U.S. businesses utilizing e-mail systems have e-mail policies. E-mail
monitoring policies serve multiple purposes. The policies create clear standards to
prevent employment disputes and insure consistent supervisory administration of
employment relations. In addition, an e-mail monitoring policy will provide proof
to the employee, or to a court in the event of litigation, that the employer seeks
to protect company property and resources and does not seek to invade the
employee’s privacy rights.
Attorney Adam Conti has posted a sample employer e-mail and electronic
usage policy on his Internet Law Office Web page. Some extracts from this
policy are:
34 / SCOTT

1. The following procedures apply to all electronic media and services

which are:
–accessed on or from company premises,
–accessed using company computer equipment, or via company-paid
access methods, and/or
–used in a manner which identifies the individual with the company.
2. Electronic media may not be used for knowingly transmitting, retrieving,
or storage of any communications of a discriminatory or harassing nature,
or which are derogatory to any individual or group, or which are obscene
of X-rated communications, or are of a defamatory or threatening nature,
or for “claim letter,” or for any other purpose which is illegal or against
company policy or contrary to the company’s interest.
3. Electronic media and services are primarily for company business use.
Limited, occasional, or incidental use of electronic media (sending or
receiving) for personal, nonbusiness, purposes is understandable and
acceptable—as is the case with personal phone calls. However, employees
need to demonstrate a sense of responsibility and may not abuse the
privilege.
4. Electronic information created and/or communicated by an employee
using e-mail, word processing, utility programs, spreadsheets, voice-mail,
telephones, Internet/BBS access, etc. will not generally be monitored by
the company, and we respect our employees’ wish to work without “Big
Brother” looking over their shoulder.
5. The company routinely monitors usage patterns for both voice and data
communications (e.g., number called or site accessed; call length; times of
day calls. Reasons include cost analysis/allocation and the management
of our gateway to the Internet.
6. The company also reserve the right, in its discretion, to review any
employee’s electronic files and messages and usage to the extent necessary
to ensure that electronic media and services are being used in compliance
with the law and with this and other company policies.
7. Each employee who uses any security measures on a company-supplied
PC or MAC must provide his/her group administrative assistant with a
sealed hard copy record (to be retained in a secure location) of all of his/her
PC or MAC passwords and encryption keys (if any) for company use if
required. (Example: there may be a need for the company to access an
employee’s system or files when s/he is away from the office.) There is no
need to provide UNIX passwords since the UNIX system administrator
can access all e-mail and files via “root” passwords if necessary.
8. Any messages or information sent by an employee to one or more indi-
viduals via an electronic network (e.g., bulletin board, on-line service, or
Internet) are statements identifiable and attributable to our company.
While some users include personal “disclaimers” in electronic messages, it
should be noted that there would still be a connection with the company,
and the statement might still be legally imputed to the company. All
communications sent by employees via a network must comply with this
 EMPLOYEE E-MAIL / 35

and other company policies, and may not disclose any confidential and
proprietary company information.
9. Any employee found to be abusing the privilege of company-facilitated
access to electronic media or services will be subject to corrective action
and/or risk having the privilege removed for him/herself and possible other
employees [24].

CONCLUSION
The current law regarding employees’ right to privacy in their workplace e-mail
usage is not entirely settled, but, for the most part, the employee claims of privacy
in their e-mail have not been supported. The only sure-fire method an employer
can use to avoid legal liability for monitoring employees is to obtain their consent
in advance. In doing so, an employer should establish and explain clear written
policies for employee monitoring and educate supervisors when monitoring is
permissible. All employers should reserve the right to access e-mail and monitor
computer usage for the purpose of retrieving documents, troubleshooting,
security, and complying with legal and regulatory requirements. Each employer
needs to decide what the appropriate level of monitoring should be for its
workplace.
Employers should caution supervisors to refrain from discussing or disclosing
any personal non-work-related information about an employee that is discovered
from employee monitoring. Employees should be explicitly informed that their
e-mail and Internet usage is being monitored by computer software. Employees
should be required to sign an acknowledgment that they have read the policy on
electronic monitoring and understand that their e-mail and Internet usage may
be monitored and recorded. The acknowledgment should also explain that the
employer may disclose any information obtained as a result of such monitoring to
law enforcement officials and regulators.
Obtaining written consent or acknowledgment is essential because the courts
have been reluctant to make a finding of implied consent. To reinforce the
policy and strengthen their position in any potential liability lawsuit, employers
should circulate periodic reminders of the policy to every employee and
supervisor. Finally, any policy adopted should be reviewed from time to time.
In addition, such a policy should be reviewed by legal counsel if an employer
expands operations to a new state or internationally. If employers take these
steps, they can legally use software to monitor employees’ e-mail and computer
usage.

ENDNOTES
1. Connecticut is the exception, where electronic monitoring is not permitted in areas
designated for the personal health or comfort of employees.
36 / SCOTT

2. United States Constitution, Amendment IV.

3. 381 U.S. 479 (1965). Addressing the issue of contraception.
4. 389 U.S. 487 (1967). Holding that warrantless electronic surveillance violated the
Fourth Amendment.
5. 480 U.S. 709 (1987).
6. Restatement (Second) of Torts, 652B (1965).
7. J. A. Flanagan, Note, Restricting Electronic Monitoring the Private Workplace, 43
Duke L. J., 1256, at 1267.
8. “The employer’s conduct must be extreme in degree, outrageous in character, and
‘atrocious’ and utterly intolerable in a civilized community,” Kaminsky v. United
Parcel Serv., 501 N.Y.S. 2d 871 (873) (App. Div., 1986).
9. Individual Employment Rights: Labor Relations Reporter. Washington: Bureau of
National Affairs, Vol. 15, No. 9, p. 34.
10. Pub. L. No. 99-508 100 Stat. 1848 (codified into scattered sections of 18 U.S.C.).
11. Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520 (1994).
Title II of the OCCSSA was enacted by Congress in response to the Supreme Court’s
decision in Berger v. New York, 388 U.S. 41 (1967) which granted Fourth Amendment
protection to oral conversations from electronic eavesdropping.
12. Senate Rep. No. 99-541 at 2.
13. 18 U.S.C. 2701-2711 (1994). See Steve Jackson Games, Inc. v. United States Secret
Serv., 36 F. 3d, 457, 462-463 (5th Cir. 1994) holding that seizure of stored electronic
communications is governed by Title II of ECPA.
14. J. T. Baumhart, The Employer’s Right to Read Employee E-Mail: Protecting Property
of Personal Prying, 8 Lab. Law. J. 923, 925 (1992). Baumhart argues that when the
employer owns the e-mail system, it has been given the right to read employee e-mail
messages, no matter how personal, and disclose the contents.
15. T. R. Greenberg, Comment, E-Mail and Voice Mail: Employee Privacy and the Federal
Wiretap Statute, 44 Am. U. L. Rev. 219.
16. James v. Newspaper Agency Corp., 591 F. 2s 579 (10th Cir. 1979); Simmons v.
Southwestern Bell Tel. Co., 452 F. Suppl. 392. Both cases supported the employer’s
right to monitor telephone communications and exercise discipline after giving notice
to employee that they could be monitored.
17. 932 F. Supp. 1232 (Nev. 1996).
18. 914 F. Supp. 97 (E.D. Pa. 1996).
19. 963 F. 2d 611 (3d Cir. 1992).
20. A Pillsbury senior executive named DeOcejo challenged Smyth’s claim that
Pillsbury assured its employees of privacy on the Pillsbury computer system. He
claimed the existence of a signed waiver that showed Smyth consented to e-mail
monitoring.
21. No. 95-2125 (Mass. App. Ct. 1996), reprinted in The Week’s Opinions: Superior Court,
Massachusetts Lawyers Weekly, Dec. 16, 1996, at 16.
22. 29 F. Supp. 2d (E.D. Va. 1998).
23. For discussion, please see B. C. Glassberg, W. J. Kettinger, and J. E. Logan, Electronic
Communication: An Ounce of Policy is Worth a Pound of Cure, Business Horizons,
Vol. 39, No. 4, pp. 74-80 (July 1996); or E. Brown, The Myth of E-Mail Privacy,
Fortune, Vol. 135, No. 2, pp. 69-71 (February 3, 1997).
 EMPLOYEE E-MAIL / 37

24. A. Conti, Employment Policies and Employee Handbooks, Internet Law Office,
www.contilaw.com.

Direct reprint requests to:

Brandy L. Scott
963 Chestnut St. #2
Kulpmont, PA 17834
 J. INDIVIDUAL EMPLOYMENT RIGHTS, Vol. 9(1) 39-53, 2000-2001

THE AMERICANS WITH DISABILITIES ACT AND

THE HOSTILE WORK ENVIRONMENT

MARY BETH HAMILTON

Widener University School of Law at Harrisburg, Pennsylvania

ABSTRACT

To date the appellate courts have not explicitly recognized the hostile work
environment as a cause of action under the Americans with Disabilities Act.
They have not done so even though the language in Title VII that created the
hostile work environment is identical to language found in the Americans with
Disabilities Act. This article reviews the hostile work environment under Title
VII and proposes the elements for a hostile work environment under the
Americans with Disabilities Act.

Title VII of the Civil Rights Act of 1964 established a cause of action not only
for discriminatory acts with tangible employment consequences, but also one for
hostile work environment [1]. Title VII provides “[i]t shall be an unlawful
employment practice for an employer to . . . discriminate against any individual
with respect to his compensation, terms, conditions or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin” [2].
The hostile work environment was first established as a cause of action in race
discrimination cases [3]. The Supreme Court in Meritor Savings Bank v. Vinson
recognized that a hostile work environment was also actionable in sex discrim-
ination cases [4, at 73]. In establishing this rule the Court borrowed from race-
based hostile environment cases [3; 4, at 65-66; 5-8].
The Americans with Disabilities Act (ADA) was passed in 1990 [9]. One of
Congress’ purposes in passing the ADA was to eliminate discrimination against
persons with disabilities in employment, as such people had historically been
discriminated against in the employment area [9]. Hence, Title I of the act provides

39
Ó 2000, Baywood Publishing Co., Inc.
40 / HAMILTON

that “[n]o covered entity shall discriminate against a qualified individual with a
disability because of the disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee com-
pensation, job training, and other terms, conditions or privileges of employment”
[9, § 12112(a)].
Both Title VII and the ADA use the words “terms, conditions or privileges of
employment.” This indicates, and some courts have implicitly acknowledged, that
both Title VII and the ADA created a cause of action for discrimination based on
the hostile work environment [10]. Although the elements for a cause of action
for hostile work environment based on sex or race are well established, the
elements for hostile work environment based upon the ADA are not. Many of the
elements for both should be the same; therefore, while some courts have implicitly
acknowledged that such a cause of action exists, no case to date has explicitly
adopted the hostile work environment and the elements for it. The following
sections focus on the ADA, the hostile work environment as defined by race and
sex, and the hostile work environment under the ADA.

AN OVERVIEW OF THE
AMERICANS WITH DISABILITIES ACT
The ADA provides that “[n]o covered entity shall discriminate against a quali-
fied individual with a disability because of the disability of such individual in
regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions or
privileges of employment” [10].
The ADA covers employers, employment agencies, labor organizations, or
joint labor-management committees [9, § 12111(2)]. Employee is defined as “an
individual employed by an employer,” and an employer is a person or company
who employs 15 or more people for 20 or more weeks out of the year [9,
§ 12111(4)&(5)(A)]. The term employer under the ADA excludes the federal
government [9, § 12111(5)(B); 11; 12].
An applicant or employee is a qualified individual under the ADA if s/he has
a disability but can perform the essential functions of a job, with or without
reasonable accommodation [9, § 12111(8)].

Disability
The Equal Employment Opportunity Commission (EEOC) Guidelines define
disability as “[a] physical or mental impairment that substantially limits one or
more of the major life activities of [an] individual” [12, § 1630.2(g)]. A physical
or mental impairment is “[a]ny physiological disorder, or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the following
body systems: neurological, musculoskeletal, special sense organs, respiratory
 HOSTILE WORK ENVIRONMENT / 41

(including speech organs), cardiovascular, reproductive, digestive, genito-urinary,

hemic and lymphatic, skin and endocrine; or any mental or psychological disorder,
such as mental retardation, organic brain syndrome, emotional or mental illness,
and specific learning disabilities” [12, § 1630.2(h)]. Major life activities are
defined as “functions such as caring for oneself, performing manual tasks, walk-
ing, seeing, hearing, speaking, breathing, learning, and working” [12, § 1630.2(l)].
”Substantially limits” encompasses one who is either unable to perform or
significantly restricted in performing a major life activity. The determination of
the limitation is affected by the nature and severity of the impairment; the duration
or expected duration of the impairment; and its permanent or long-term impact
[12, § 1630.2(j)].
In Sutton v. United Air Lines, Inc., (discussed elsewhere in this volume) the
Supreme Court restricted the meaning of disability, stating that “substantially
limits” requires a person actually, at the time, to be substantially limited in a major
life activity, not hypothetically or potentially limited [13].

Essential Function

In determining an essential function, the ADA gives some deference to the

employer’s definition. According to the EEOC, an essential function is a funda-
mental job duty of the position. Evidence that establishes a function as essential
includes the employer’s definition of the position and a written job description,
how much time is devoted on the job to that function, the consequences if that
function is not performed, and the work experience of past and current incumbents
in that or similar jobs [12, at 1630.2(n)].

Discrimination

The term “discriminate” includes “limiting, segregating, or classifying . . . an

employee in a way that adversely affects the opportunities or status of . . . [the]
employee because of the disability of [that] employee” [9, § 12112(b)]. Further-
more, the employer may not use “standards, criteria, or methods of administration
that have the effect of discrimination on the basis of disability; or that perpetuate
the discrimination of others who are subject to common administrative control”
[9, § 12112(b)]. Any qualification standard, employment test, or selection criteria
that screen out persons with disabilities is discrimination, unless the standards,
tests, or criteria are demonstrated as job-related for the position and are “consistent
with business necessity” [9, § 12112(b)]. For example, failing to accommodate for
a disability when administering tests is discriminatory; in other words, a test
may not be given in a way that measures only the disability and not the skills
and aptitude of the person taking the test.
While the employer may not exclude or deny jobs or benefits to a person who is
qualified because of disability, an employer is not required to hire or promote an
42 / HAMILTON

individual with a disability unless that person is otherwise qualified for the job
[9, § 12112(b)].

Reasonable Accommodation

It is also discrimination if the employer fails to make reasonable accommo-

dations, or denies employment opportunities because of the need to make reason-
able accommodation, unless to do so would impose an undue burden on the
business operations of the employer. The EEOC regulations define reasonable
accommodation as “modification or adjustment to the work environment,” or to
the way in which work in that position is usually performed, that would enable a
person with a disability to perform the job [12, § 1630.2(o)]. The regulations also
state that the modifications or adjustments must encompass access by a disabled
employee to the benefits and privileges of the position that nondisabled employees
are able to access [12, § 1630.2(o)]. Examples of reasonable accommodation
include making existing buildings and offices accessible to, and usable by,
persons with disabilities, “job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification of equipment or
devices, appropriate adjustments or modifications of examinations, training
materials or policies, the provision of qualified readers or interpreters, and other
similar accommodations for individuals with disabilities” [9, § 12111(9)].
In determining the appropriate reasonable accommodations, the employer may
be required to “initiate an informal, interactive process with the qualified indi-
vidual with a disability in need of the accommodation” [12, § 1630.2(o)]. During
this process the employer may enquire as to the “precise limitations resulting from
the disability and potential reasonable accommodations that could overcome those
limitations” [12, § 1630.2(o)]. In Hendricks-Robinson v. Excel Corporation, the
court stated the employer must work with the employee in a flexible way to
determine what accommodations can be made in the existing job or, if necessary,
what jobs are available for employee reassignment [16]. Reassignment, the court
stated, may be required if reasonable accommodations do not allow an employee
to perform the essential functions of the job. Reassignment, however, does not
require creation of a job, bumping a person out of a job, making a temporary job
permanent, or promotion of the disabled employee [16, at 693; 17]. It does require
the employer make a reasonable effort to work with the employee to determine an
appropriate reassignment. The employee with the disability, moreover, must be
capable of performing the essential functions of the new position with or without
reasonable accommodations [16, at 694-695].
The employee also has a duty under the ADA to work with the employer to
determine what a reasonable accommodation would be [18]. In Templeton v.
Neodata Services, Inc., an employee who refused to provide an employer with
documentation to enable the employer to determine the appropriate reasonable
accommodations was found to be out of compliance with the ADA.
 HOSTILE WORK ENVIRONMENT / 43

Undue Burden
The following factors determine whether an accommodation is an undue
hardship: 1) the net cost of the accommodation after any tax credits, deduc-
tions, or outside funding; 2) the overall financial resources of the employer;
3) the type of operation the employer has, including “the composition, struc-
ture and functions of the workforce,” and the geographic location and association
of the facilities; and 4) “[t]he impact of the accommodation upon the operation
of the facility, including the impact on the ability of other employees to per-
form their duties and the impact on the facility’s ability to conduct business”
[12, § 1630.2(p)].

Medical Examination
The ADA also prohibits an employer from conducting a medical examination
before a decision to hire is made, and from inquiring whether an employee has a
disability. A medical examination and inquiry is permitted, nonetheless, if it is
“shown to be job related and consistent with business necessity” [9, § 12112(d)].
Voluntary medical examinations, moreover, are permitted as part of an employee
health program available to all employees. It is important to note that the infor-
mation from these examinations must be treated confidentiality. The informa-
tion may be given to supervisors and managers only when they need to know
an employee’s work restrictions in order to make reasonable accommodations
[9, § 12112(d)].

AN OVERVIEW OF THE HOSTILE

WORK ENVIRONMENT
Relying on the phrase “terms, conditions or privileges of employment” [20],
the Supreme Court concluded that Congress intended to establish more than an
action for discrimination based on tangible loss of an economic character [21]
for sex discrimination [20, at 64; 22]. Citing the EEOC Guidelines’ definition of
actionable workplace conduct to include “[unwelcome sexual advances, requests
for sexual favors, and other verbal or physical conduct of a sexual nature” [20, at
65; 23], the Court found harassment leading to noneconomic injury could violate
Title VII in sexual harassment cases [20, at 65-66; 24].

Elements
The elements for hostile environment cases are unwelcome conduct, requests
for “sexual favors, and other verbal or physical conduct of a sexual nature,” and
conduct must be “sufficiently severe or pervasive to alter the conditions of
[the victim’s] employment and create an abusive work environment” [20, at
65-67]. In Harris v. Forklift Systems, Inc., the Court stated the conduct must be
44 / HAMILTON

“severe and pervasive enough to create an objectively hostile or abusive work

environment—[one] a reasonable person would find hostile or abusive;” and one
the victim subjectively found to be hostile or abusive [25, at 21]. In Harris, the
Court held that psychological harm to the victim was not a necessary element, but
a factor to be considered. Other factors include “frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s
work performance” [25, at 23]. The Meritor opinion further stated that courts
must consider the totality of the circumstances in determining whether sexual
harassment based on a hostile work environment has occurred; including the
“nature of the sexual advances and the context in which the alleged incidents
occurred” [12, § 1604._(b); 20, at 69].
The Court also relied on race and national-origin cases to define the level of
offensive conduct necessary to qualify as a hostile work environment [20, at 64]. It
found the conduct must go beyond mere teasing or “isolated incidents” (unless
extreme) to rise to the level of altering the “conditions of employment” [20, at 67;
26]. In Faragher v. City of Boca Raton, Justice Souter stated that the Court
developed these severe standards to ensure that “Title VII [would] not become a
‘general civility code,’” and that generally the courts of appeals have heeded this
message [27, at 2283-2284; 28].

Employer Liability Supervisory Harassment

If the supervisor harassing the employee is the owner, or so high up in the

business as to be treated as the employer’s proxy, the employer has been held
strictly liable for the hostile work environment [25, at 17, 19; 27, at 2284; 29; 30].
Moreover, an employer is held strictly liable for supervisory harassment of
employees, if the harassment results in a tangible employment action. A tangible
employment action is one that affects the hiring, firing, promotion, compensation,
or work assignment of an employee. The above are not subject to the affirmative
defense [20, at 70-71; 27, at 2284; 31-34].
In Faragher, the Court held employers are strictly liable for the hostile
work environment created by supervisors, subject to an affirmative defense.
The defense consists of two necessary elements: “That the employer exercised
reasonable care to prevent and correct promptly any sexually harassing behavior,
[and] that the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm
otherwise” [29, at 2290-2293; 31, at 2270]. The Court stated that evidence of
reasonable care under the first element of the defense could include an anti-
harassment policy coupled with a complaint procedure [29, at 2293]. The
antiharassment policy, moreover, must allow the employee to bypass a harassing
supervisor [29, at 2293].
 HOSTILE WORK ENVIRONMENT / 45

Employer Liability for Co-Worker Harassment

An employer is liable for co-worker harassment only if the employer either

knew about the harassment or should have known about it, and if the employer
failed to remedy the situation. This standard is universally accepted by courts
for both race and sex-based co-worker created hostile work environments [27
(approving standard for co-worker harassment); 35; 36].

THE HOSTILE WORK ENVIRONMENT

AND THE ADA

In addition to the requirement that a person be a qualified individual with a

disability, the principal element for a cause of action for a hostile work environ-
ment under the ADA is discrimination in terms, conditions, or privileges of
employment. This element requires showing that: 1) the individual was sub-
jected to unwelcome harassment; 2) the harassment was based on the indi-
vidual’s disability; and 3) the harassment was sufficiently severe or pervasive
to alter the conditions of the individual’s employment and created an abusive
working environment. The environment must be shown to be both subjectively
and objectively hostile. To demonstrate the severe and pervasive nature of the
harassment, the following factors should be considered: 1) psychological harm to
the victim; 2) the frequency of the discriminatory conduct; 3) the severity of the
discriminatory conduct; 4) whether the conduct was physically threatening or
humiliating or a mere offensive utterance; 5) whether the conduct unreasonably
interfered with an employee’s work performance; and 6) whether the employee
was harassed by administrative procedures based on his/her disability.
Employer liability should be determined exactly as the Court laid out in
Faragher. If the supervisor who was harassing the employee is the owner, or so
high up in the business to be treated as the employer’s proxy, the employer would
be held strictly liable for the hostile work environment [27, at 2284, citing 25,
at 19; 29; 30]. An employer would also be held strictly liable for supervisory
harassment of employees, if the harassment results in a tangible employment
action. A tangible employment action is one that affects the hiring, firing, promo-
tion, compensation, and work assignment. These two situations are not subject
to the affirmative defense [27, at 2284, citing 20, at 70-71; 31-34].
Employers would be strictly liable for the hostile work environment created by
other supervisors subject to an affirmative defense. The defense consists of two
necessary elements: “That the employer exercised reasonable care to prevent
and correct promptly any sexually harassing behavior, [and] That the plaintiff
employee unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise” [27, at
2290-93; 31]. The Court stated evidence of reasonable care under the first element
of the defense could include an antiharassment policy coupled with a complaint
46 / HAMILTON

procedure [27, at 2293]. The antiharassment policy, moreover, must allow the
employee to bypass a harassing supervisor [27, at 2293].
An employer is liable for coworker harassment only if the employer either knew
about the harassment or should have known about it and the employer failed to
remedy the situation [27, at 2275, 228_; 35; 36].

APPLICATION OF THE HOSTILE WORK

ENVIRONMENT UNDER THE ADA
While no appellate court has yet explicitly recognized a cause of action for
hostile work environment under the ADA, arguably three have done so implicitly,
and others have assumed a cause of action without deciding. In Keever v. City
of Middletown, the Court of Appeals for the Sixth Circuit affirmed the district
court’s grant of summary judgment for the city [40]. Keever was a city police
officer who suffered injury on the job to his neck, back, shoulders, and legs
while arresting criminal suspects. As a result of his injuries, Keever missed
between 17 to 26 days of work a year, and the city refused to allow him to use
injury leave for these absences. After confrontations with the department
over his absences, Keever retired and was awarded a 45 percent disability
pension. Keever then sued claiming he was harassed because of his disability
and his disability related absences. He also claimed the police department
failed to accommodate his disability when it refused to assign him to the
“less stressful” 11 p.m. to 7 a.m. shift [40, at 810-811]. The appellate court stated
that Keever failed to establish “any facts concerning whether the harassment
he claims took place was severe enough to create an objectively hostile work
environment” [40, at 813]. By applying the facts to the element of a severe
and pervasive work environment and applying the objective-person standard, the
Sixth Circuit implied that a cause of action exists for hostile work environment
under the ADA.
In an unpublished decision, Williams v. Boeing Co., the Court of Appeals for
the Ninth Circuit also applied the facts to the elements and found no hostile work
environment [41, at *2]. Williams suffered from diabetes. He alleged he was
terminated from Boeing because management was dissatisfied with the disability
requirements that he eat at his workstation and that he use the bathroom frequently.
In this case the court found Williams failed to provide specific dates and instances
of harassment and so did not prove the harassment was severe and pervasive.
Again, the court implied that a cause of action exists for hostile work environment
under the ADA. It should be noted that this is an unpublished decision; there is
no definitive rule in this circuit.
Moreover, the Ninth Circuit, in Baumgart v. State of Washington, assumed
without deciding that a claim for harassment or hostile work environment
was cognizable under the ADA [42, at *1]. This was also an unpublished
table opinion and was decided seven months after Williams [41]. Baumgart, a
 HOSTILE WORK ENVIRONMENT / 47

social worker, requested accommodation for her disability of allowance to work

part-time instead of full-time. The court determined that this accommodation
would be an undue burden on the employer. The court found the plaintiff failed
to establish a hostile work environment by failing to show that “particular state-
ments or incidents of harassment [were] ‘sufficiently severe or pervasive to alter
the conditions of her employment and to create an abusive working environment’”
[42, at *1].
The Court of Appeals for the Eighth Circuit also presented contradictory
holdings. In Cody v. Cigna Healthcare, Inc., the court again indicated a hostile
work environment existed under the ADA by simply applying the facts without
stating it did not endorse this cause of action [43]. Cody, a nurse, worked for Cigna
reviewing records at various doctor’s offices in St. Louis. She claimed she suffered
from anxiety and depression and that the requirement that she go into “dangerous”
areas of the city exacerbated her condition. After a meeting with the executive
director, Cody’s supervisor confronted her and threatened that “she would suffer
the consequences” of going over her head. Cody also found a cup labeled “alms
for the sick” on her desk. Coworkers later reported incidents of bizarre behavior
by Cody, such as sprinkling salt to keep away evil spirits to references about
guns. The executive director met with Cody and observed a noticeable bulge
in her purse. He then requested she take a leave with the requirement that
she undergo a psychiatric evaluation and counseling. Cody’s security access
card was then deactivated and confiscated. Upon departure Cody could not open
any of the doors [42, at 596-597]. The Court stated “[i]n all constructive discharge
and harassment cases under the ADA . . . the plaintiff must first make out a prima
facie case of discrimination or face dismissal of her claim” [43, at 598, emphasis
added]. In determining that Cody did not suffer a hostile work environment,
the court stated that Cody failed to establish that she was disabled under the
ADA [43, at 598-599].
The implied finding of hostile work environment in Cody was short-lived. The
Eighth Circuit just five months later decided another hostile work environment
case brought under the ADA. In Wallin v. Minnesota Department of Corrections,
the court stated it would assume without deciding that a cause of action existed for
hostile work environment under the ADA [44, at 687-688]. The court concluded
that harassment under the ADA must be based on the disability [44, citing 45].
In this case the court found the conduct complained of was not so severe and
pervasive to rise to the level of a hostile work environment [44, at 688]. In
justification of his claim, however, Wallin pointed “to numerous incidents of
friction between himself and his coworkers” [44, at 688]. The court, however,
found only three of these incidents of alleged harassment related to Wallin’s
disability of depression and alcoholism. The first was the suggestion that Wallin’s
seeing a psychologist was a good method to get vacation; second was a series
of drawings of psychiatrist’s beds on Wallin’s calender on the days he was on
leave for depression; and third was an obscene comment from a coworker about
48 / HAMILTON

Wallin’s alcoholism. The court found these incidents were isolated and did not rise
to the level of being severe and pervasive. Thus, Wallin’s hostile work
environment claim failed [44, at 688].
The Eighth Circuit stated in Cannice v. Norwest Bank that the “ADA provides
that an employer covered by the act ‘shall not discriminate against a qualified
individual with a disability because of the disability in regard to . . . terms,
conditions and privileges of employment.’” Cannice suffered from depression.
The alleged harassment consisted of close monitoring by supervisors, including
moving his desk closer to the supervisor, and close monitoring of bathroom
breaks. Cannice also related an incident when a group leader tossed a tissue onto
his desk labeled “crying towel” [46, at *1-2]. The court noted, however, that the
ADA says nothing explicit about the hostile work environment cause of action,
and the court declined to decide the issue on this case [46, at *1]. Once again the
court found the plaintiff did not meet the requirement that the offensive conduct be
based on the disability. In other words, the court did not find the harassment
so severe and pervasive that it rose to the level necessary for a hostile work
environment [46, at *1-*2].
The Eighth Circuit again stated it was unsure whether a cause of action existed
under the ADA for a hostile work environment in Moritz v. Frontier Airlines, Inc.
[47]. In this case the plaintiff failed to establish that she was a qualified individual
under the ADA. The court held that one must establish as a prerequisite a prima
facie case that the person is both disabled and qualified to perform the essential
functions of the job, with or without reasonable accommodation, and suffered
adverse employment action as a result of the disability. Only after this is estab-
lished may an individual move on to the additional elements of a hostile work
environment [47, at 786]. Part of Moritz’ duties as a station agent for Frontier
included working the ticket counter and gate. Moritz was diagnosed with multiple
sclerosis and had weakness in her left leg. This prevented her from adequately
performing the gate duty of assisting passengers on and off the plane [47, at
785-786]. The court found the gate duties, including assisting the passengers on
and off the plane, were an essential function of the position. Moritz could not
perform this duty without the assistance of another employee. Applying the
undue burden defense to reasonable accommodation, the court concluded that, as
Frontier was a start-up airline, it could not reasonably accommodate Moritz. The
court found that the cost of providing an employee to assist Moritz would not be
reasonable. Therefore, because Moritz could not perform the essential functions of
the position, with or without reasonable accommodation, she was not a qualified
individual under the ADA. The court then dismissed her complaint for failure to
establish the element of a qualified individual with a disability [47, at 787-788].
The differing applications by the Eighth Circuit under the ADA—one decision
applying the ADA hostile work environment and the other three disavowing and
at the same time applying it—does not leave the attorneys or lower courts with a
clear path to follow.
 HOSTILE WORK ENVIRONMENT / 49

The Court of Appeals for the Fifth Circuit also failed to either recognize or
disavow the hostile work environment under the ADA as a cause of action. In
McConathy v. Dr. Pepper/Seven Up Corporation, the court stated it would pro-
ceed as if the hostile work environment cause of action existed [48], but that “[t]his
case should not be cited for the proposition that the Fifth Circuit recognizes or
rejects an ADA cause of action based on hostile environment harassment” [48, at
563]. In McConathy, the plaintiff suffered from temporomandibular joint disease
and had two surgeries as a result. McConathy’s supervisor told McConathy she
used too much of her health care benefits and she should not take any more
time off. After a third, but unrelated, surgery, the supervisor began excluding
McConathy from meetings and instructed her staff not to inform her of business
projects. McConathy was eventually laid off due to a restructuring at Dr. Pepper.
Here the court found it unnecessary to establish the hostile work environment
because the plaintiff failed to establish conduct so severe or pervasive as to alter the
conditions of her employment and create an abusive work environment [48, at 563].
Stating it did not find the current case an appropriate one in which to find hostile
work environment as a cause of action, the Court of Appeals for the Tenth Circuit
followed the long line of circuit courts that did not either affirm or disaffirm this as
a cause of action [49]. In Anthony v. City of Clinton, the plaintiff, a police officer,
suffered from depression. Prior to his diagnosis in 1996, Mr. Anthony’s per-
formance was rated as “very good” or “satisfactory” on his annual reviews. After
Anthony returned to work after a hospital stay for depression, his supervisor
increased supervision of him, subjected him to “verbal abuse,” and criticized his
work The Anthony court found the plaintiff failed to establish the conduct was
sufficiently severe or pervasive to alter the conditions of employment and make
the work environment abusive [49, at *3].
The Court of Appeals for the Third Circuit likewise did not recognize a cause of
action for a hostile work environment based on the ADA. In Walton v. Mental
Health Association of Southeastern Pennsylvania, the court noted that the lan-
guage in Title VII that created a cause of action for a hostile work environment was
virtually the same as that found in the ADA [50, at 666, relying on 51]. Walton
suffered from depression, had been hospitalized many times for it, and missed
from 21 to 50 days of work a year. Walton was terminated due to her most recent
absence, which began on October 26, 1993 and was scheduled to end on January
10, 1994. Walton alleged harassment by her supervisor, claiming he required she
perform nonessential duties she could not perform, repeatedly calling her when
she was hospitalized to see when she would return to work, and informing
Walton’s co-workers not to give Walton information about her job while she was
gone. The Third Circuit stated:

In the context of employment discrimination, the ADA, ADEA and Title VII
all serve the same purpose—to prohibit discrimination in employment against
members of certain classes. Therefore, it follows that the methods and manner
50 / HAMILTON

of proof under one statute should inform the standards under the others as
well. Indeed, we routinely use Title VII and ADEA caselaw interchangeably,
when there is no material difference in the question being addressed [50, at
666, quoting 52].

Moreover, the court asserted “[t]his framework indicates that a cause of action for
harassment exists under the ADA” [50, at 666]. Nevertheless, the court concluded
it would assume without deciding that the cause of action exists. The court did note
that a district court in the Third Circuit had recognized this cause of action [50,
at 667, referring to 53]. Moreover, it referred to the Sixth Circuit’s decision in
Keever as recognition by a circuit court of the existence of the hostile work
environment cause of action under the ADA. In application, the court concluded
Walton had failed to show the conduct was sufficiently severe or pervasive to
alter the conditions of her employment and create an abusive work environment
[50, at 667].
The Court of Appeals for the Seventh Circuit, in Silk v. City of Chicago, also
assumed (without deciding) that a cause of action existed under the ADA for a
hostile work environment [54, at *1]. The court found Silk had failed to show
the environment was so severe or pervasive that it constituted a hostile work
environment [54, at *12-*13]. The court also referred to the affirmative defense as
set out by Faragher and implied Silk also did not sufficiently inform his superiors
of the alleged harassment. There was no mention of whether the first element of
the affirmative defense, that the employer exercised reasonable care to prevent and
acted promptly to correct any harassment, was met [54, at *11-*12]. It appeared
from the facts, however, that the hostile environment in this case may have been
severe and pervasive enough to avoid summary judgment and justify submission
to a jury. Silk suffered from severe sleep apnea, which condition required he be
assigned to a stable shift. For example, Silk, who was a police officer, alleged that
after accommodation for his disability limited him to working the day shift he was
subjected to constant derogatory and hostile comments from coworkers and
supervisors. He complained his employment ratings fell, he was forced to quit his
second job, and he was harassed administratively by not being assigned patrol
cars to supervise. This resulted in increased coworker and supervisory hostility.
Moreover, he was physically threatened by a coworker on one occasion, and by a
supervisor on another. And, after the report of the threat, the other harassment
continued unabated [54, at *2-*3]. In this case many material facts appear to be
in dispute; however, the Seventh Circuit did not remand the case for further
proceedings. This could be due to the confusion over the status of an ADA hostile
work environment cause of action, or perhaps it is the reluctance of the Seventh
Circuit to be the first to definitively find such a cause of action.
Additionally, the court noted that at least two other circuits had accepted a cause
of action for hostile work environment under the ADA, referring to the Sixth-and
Eighth-circuit cases cited above [54, at *9]. It is interesting to note that the Eighth
 HOSTILE WORK ENVIRONMENT / 51

and Ninth circuits have handed down conflicting decisions on the existence of the
hostile work environment under the ADA. This exemplifies the confusion among
the circuits and even within a circuit on this issue.

CONCLUSION

The courts should clear up this confusion by establishing a hostile work

environment as a cause of action under the ADA. As the Third Circuit noted,
Title VII of the Civil Rights Act of 1964 also does not explicitly establish a cause
of action for hostile work environment. The language, however, on which the
hostile work environment is based under Title VII is identical to that in the ADA: it
shall be unlawful to discriminate based upon the “terms, conditions, or privileges
of employment.” This indicates Congress intended to create a cause of action for a
hostile work environment under the ADA. Congress knew this cause of action
existed under Title VII when it passed the ADA. This is exemplified by the Court
when it stated in Faragher that “the force of precedent here is enhanced by
Congress’s amendment to the liability provisions of Title VII since the Meritor
decision, without providing any modification of our holding” [27, at 2275, 2286].
This demonstrates that Congress approved this cause of action before the ADA
was passed. This is further evidenced by the fact that the Meritor decision came
out in 1986 [20], while the ADA was not passed until 1990 [9]. It is probable,
considering these facts, that Congress deliberately used the same language in the
ADA to effect the same result.
The appellate courts, however, are either unwilling to follow this reasoning or
are waiting for the right case. In the meantime, the district courts and attorneys are
assuming this is a cause of action, as is evidenced by the number of cases at the
appellate level [55]. The hostile work environment factors outlined above, as well
as the Supreme Court decision restricting disabilities, will ensure the ADA does
not become “a general civility code” [27, citing 20, at 70-71]. Therefore, the
appellate courts should take this opportunity to recognize this cause of action.
* * *
Mary Beth Hamilton is a third year student at the Widener University School of
Law at Harrisburg, Pennsylvania.

ENDNOTES
1. Civil Rights Act of 1964 § 703, 42 U.S.C. § 2000e-2(a)(1) (1994); Rogers v. EEOC,
454 F.2d 234 (5th Cir. 1971) cert. denied, 406 U.S. 957 (1972). It is important to note
that a hostile work environment can result in tangible acts if a person is constructively
discharged as a result of the harassment.
2. 42 U.S.C. § 2000e-2(a)(1).
3. Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971) cert. denied, 406 U.S. 957 (1972).
52 / HAMILTON

4. 477 U.S. 57 (1986).

5. Firefighters Institute for Racial Equality v. St. Louis, 549 F.2d 506 (8th Cir.) cert.
denied, sub norm.
6. Banta v. United States, 434 U.S. 819 (1977).
7. Gray v. Greyhound Lines, E., 545 F.2d 169 (D.C. Cir. 1976).
8. The Court also looked to EEOC Guidelines on sex discrimination, 29 C.F.R.
§ 1604.11(a) (1985).
9. The Americans with Disabilities Act, 42 U.S.C. § 12101(a)(b) (1994).
10. See Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723 (8th Cir. 1999); Baumgart v.
Wash., 189 F.3d 472 (9th Cir. 1999) (unpublished table decision); Anthony v. City of
Clinton, 185 F.3d 873 (10th Cir. 1999) (unpublished table decision); Williams v.
Boeing Co., 166 F.3d 1219 (9thy Cir. 1999) (unpublished table decision); Walton v.
Mental Health Ass’n of S.E. Pa., 168 F.3d 661 (3rd Cir. 1999); Wallin v. Minn. Dpt’t of
Corrections, 153 F.3d 681 (8th Cir. 1998); Silk v. City of Chicago, 1999 WL 804008
(7th Cir. 1999).
11. The federal government is covered by the Vocational Rehabilitation Act, which
provides virtually the same protections as the ADA. Moreover, Congress intended the
case law developed under the Vocational Rehabilitation Act to be applicable to cases
under the ADA.
12. Regulations to Implement the EEOC Provisions of the ADA, 29 C.F.R. § 1630.2(g)
App. (1999).
13. Sutton v. United Airlines, Inc., 119 S. Ct. 2139 (1999).
14. It should be noted that EEOC guidelines are regulations passed by a federal agency
(EEOC) and thus they do not have the force of law, but are generally given deference by
the courts.
15. Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 674 (7th Cir. 1998).
16. Hendricks-Robinson v. Excel Corporation, 154 F.3d 685 (7th Cir. 1998).
17. See also Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667 (7th Cir. 1998)
(holding that an employer may designate light-duty positions as temporary and reserve
them for temporarily disabled employees); Mengine v. Runyon, 114 F.3d 415 (3rd
Cir.1997) (stating an employer is not required to create a job for a disabled employee).
18. Templeton v. Neodata Serv., Inc., 162 F.3d 617, 619 (10th Cir. 1998) (quoting Beck
v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996)).
19. Hankins v. Gap, Inc., 84 F.3d 797, 801 (6th Cir. 1996) (quoting 12, § 1630.2(d)).
20. Meritor Savings Bank v. Vinson, 477 U.S. 57, 63 (1986) (citing 42 U.S.C.
§ 2000e-2(a)(1)).
21. Referred to as quid pro quo harassment, see 20, at 65.
22. (20, citing Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 70o2, 797, n. 13
(1978) quoting Sprogis v. United Airlines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971)).
23. (20, citing EEOC Guidelines on Discrimination because of Sex, 29 C.F.R. § 1604.11(a)
(1985)). The Court state that EEOC guidelines “while not controlling upon the
courts . . . constitut[ed] a body of experience and informed judgment to which courts
and litigants may properly resort for guidance.’” [20, (quoting General Electric Co.
v. Gilbert, 429 U.S. 125, 141-42 (1976))].
24. Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971) cert. denied 405 U.S. 957 (1972).
25. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
26. Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982).
 HOSTILE WORK ENVIRONMENT / 53

27. Faragher v. City of Boca Raton, 119 S. Ct. 2276 (1998).

28. Oncale v. Sundowner Offshore Serv. Inc., 118 S. Ct. 75 (1998).
29. Burns v. McGregor Electronic Indus., Inc., 955 F.2d 559, 564 (8th Cir. 1992).
30. Torres v. Pisano, 116 F.3d 625, 634-35 (2nd Cir.) cert denied, 118 S. Ct. 563 (1997).
31. Burlington Indus., Inc. v. Ellerth, 119 S. Ct. 2257, 2269 (1998).
32. Anderson v. Methodist Evangelical Hosp., 464 F.2d 723, 725 (6th Cir. 1972).
33. Kotcher v. Rosa and Sullivan Appliance Ctr., 957 F.2d 59, 62 (2nd Cir. 1992).
34. Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir. 1989).
35. Torres v. Pisano, 116 F.3d 625, 633 (2nd Cir. 1997).
36. Karibian v. Columbia Univ., 14 F.3d 773, 780 (2nd Cir. 1994).
37. Employer liability is treated as a separate element for ease of understanding.
38. Sutton v. United Air Lines, Inc., 119 S. Ct. 2139, 2152 (1999).
39. Murphy v. United Parcel Serv. Inc., 119 S. Ct. 2133 (1999).
40. Keever v. City of Middletown, 145 F.3d 809 (6th Cir. 1998).
41. Williams v. Boeing Co., 166 F.2d 1219, No. 97-36098, 1999 WL 50882, *1 (9th Cir.
Jan 15, 1999) (unpublished table decision).
42. Baumgart v. State of Washington, 189 F.3d 472, No. 98-35172, 1999 WL 535795, *1
(9th Cir. July 23, 1999) (unpublished table decision).
43. Cody v. Cigna Healthcare, Inc., 139 F.3d 595 (8th Cir. 1998).
44. Wallin v. Minnesota Dept. of Corrections, 153 F.3d 681.
45. Smith v. St. Louis Univ., 109 F.3d 1261, 1264 (8th Cir. 1997).
46. Cannice v. Norwest Bank, Nos. 98-2230, 98-2305, 1999 WL 608644 (8th Cir. Aug. 13,
1999).
47. Moritz v. Frontier Airlines, Inc., 147 F.3d 784.
48. McConathy v. Dr. Pepper/Seven Up Corporation, 131 F.3d 558 (5th Cir. 1998).
49. Anthony v. City of Clinton, 185 F.3d 873, No. 98-6188, 1999 WL 390927, at *3
(10th Cir. June 15, 1999).
50. Walton v. Mental Health Association of Southeastern Pennsylvania, 168 F.3d 661
(3rd Cir. 1999).
51. Patterson v. McLean Credit Union, 491 U.S. 164, 180 (1989).
52. Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3rd Cir. 1995).
53. Vendetta v. Bell Atlantic Corp., No. 97-4838, 1998 WL 575111 (E.D.PA. Sept. 8,
1998) (not reported in F.Supp. 2d).
54. Silk v. City of Chicago, No. 98-1155, 1999 WL 804008, *1 (7th Cir. Oct. 8, 1999).
55. See also McClain v. Southwest Steel Co., 940 F.Supp 295 (N.D. Okla. 1996); Gray v.
Ameritech Corp., 937 F.Supp. 762 (N.D. Ill. 1996); Fritz v. Mascotech Automotive Sys.
Group, 914 F.Supp. 1481 (E.D. Mich. 1996).

Direct reprint requests to:

Mary Beth Hamilton
246 Redwood Lane
Carlisle, PA 17013
J. INDIVIDUAL EMPLOYMENT RIGHTS, Vol. 9(1) 55-69, 2000-2001

THE SUTTON TRILOGY:

CHANGING THE LANDSCAPE OF THE ADA

CHARLES J. COLEMAN
Rutgers University, Camden, New Jersey

ABSTRACT
The agencies that enforce the Americans with Disabilities Act (ADA) have
determined that a person’s disability is to be assessed without regard to
devices, medication, or other adjustments that may have reduced or elimi-
nated the manifestation of the impairment. An epileptic, for example, whose
tendency to seizure is controlled by medication, could still be considered
disabled and could have the protection and the benefits of ADA coverage.
Until recently, the circuit courts have followed the agencies’ lead. In the
summer of 1999, however, the U.S. Supreme Court made three decisions that
invalidated this approach to determining whether a person is disabled. This
article examines, assesses, and criticizes those decisions and suggests an
alternative approach.

BACKGROUND ON THE ADA

On July 26, 1990, President George Bush signed the Americans with Disabilities
Act (ADA) into law. Its principal purpose was to eliminate discrimination against
individuals with physical or mental disabilities. Congress noted when the act was
passed that some 43,000,000 Americans1 had one or more physical or mental

1
The 1994 Census Bureau estimate is 54 million disabled.

55
ã 2000, Baywood Publishing Co., Inc.
56 / COLEMAN

disabilities and that they had long been a “discrete and insular minority,” faced
with restrictions and limitations and subjected to a “history of purposeful unequal
treatment [1-3]. The elements of the ADA that figure into this article are:

1. Title I of the ADA prohibits discrimination against disabled individuals

in employment. This title sets out to assure that handicapped individuals
have the same opportunity as other workers to take their place beside
them and perform the same tasks in the same work environment. The
ADA does not set quotas for employing handicapped individuals, but it
prohibits employers from failing to hire qualified applicants because they
are handicapped [4, 5].
2. The ADA defines the term “disability” broadly, as did its predecessor,
the Rehabilitation Act of 1973 [6]. The ADA states that a person is disabled
if s/he: 1) has a physical or mental impairment that substantially limits
a major life activity; 2) has a record of such impairment; or 3) is perceived
as having such an impairment [1, §12102(2)]. To acquire ADA protection,
the impairment must substantially limit the individual’s ability to perform
that activity.
3. Working is considered to be a major life activity [7]. To determine whether
a disorder is to be protected by the act, the key questions focus on the
severity of the disorder, its prognosis, its impact on the person’s ability to
work at a particular job, and the effectiveness of the controlling medication.
There are no per se interpretive rules. Cases are decided on an individual
basis, but claimants must show they are “significantly restricted in the
ability to perform either a class of jobs or a broad range of jobs in various
classes . . . [8, at 625].
4. A person is considered qualified for a position if s/he can perform its
essential functions, with or without reasonable accommodation. An
essential job function is one that: 1) employees in the position are
actually required to perform and where 2) removing that function would
fundamentally alter the position [9]. The employer’s interpretation of
the essential functions of a particular job will bear on the determination
[1, §12111(8)(1992); 10].
5. The concept of “reasonable accommodation.” This refers to any change in
the work, its environment, or the way things are customarily done to enable
a disabled individual to qualify for a position. The ADA requires employers
to provide reasonable accommodation to disabled employees, as long as the
accommodation does not involve undue hardship or cause a violation of a
collective bargaining agreement [11]. Accommodations could include job
restructuring, new equipment, readers, or interpreters.
6. A mitigated state is the state or condition of an individual who is receiving
treatment for an impairment—the diabetic receiving insulin, the amputee
who gets around with a prosthetic device, or the sufferer of a mental disorder
 THE SUTTON TRILOGY / 57

that is controlled by medication. Sometimes the mitigation turns what

was once a severe limitation to a major life activity into something far
less restrictive. The question addressed in this article is whether such an
individual can still be considered disabled under the ADA [12].

SUTTON V. UNITED AIRLINES

The central issue in the three ADA cases the Supreme Court decided in
the summer of 1999 was whether conditions corrected by devices, medication,
or the body’s own accommodations can be considered disabling under the ADA.
In the lead case, the Sutton petitioners were twin sisters whose uncorrected visual
acuity was 20/200 or worse [13]. With corrective measures (eyeglasses), however,
their vision fell into the normal range. In 1992, they applied to United Air Lines
for employment as commercial airline pilots. Even though they met the air-
line’s requirements with regard to age, education, experience, and FAA certifi-
cation, they were rejected because they did not meet the carrier’s requirement of
uncorrected visual acuity of 20/100 or better.
The federal district court rejected Suttons’ claim. The court held that, despite
being virtually blind without their glasses, the sisters were not actually disabled
because: 1) they could correct their visual impairments, thereby negating their
claim under the first prong of the definition of a disability; and 2) they were not
regarded by the airline as being disabled, causing their case to fail under the third
prong. The district court essentially concluded that the petitioners were unable to
demonstrate that they were limited in the major life activity of working because
their condition had been successfully mitigated. Until the Sutton decision, the
circuit courts of appeal had largely accepted the EEOC Guidelines that required
potential disabilities to be considered in their unmitigated (uncorrected) state [14].
The Tenth Circuit Court of Appeals upset this tradition by accepting the district
court’s logic and affirming its ruling [15].

An Impermissible Interpretation
The Supreme Court agreed. The majority opinion of the U.S. Supreme Court,
written by Justice O’Connor, reviewed the legislative charges that had been given
the agencies enforcing the ADA. The Court stated that none of the agencies
had been given the authority to interpret the term “disability,” but the enforcing
agency’s (EEOC) regulations had the effect of interpreting that term because
the regulations had defined such terms as physical and mental impairments,
substantially limits, and major life activities [13].
The Court then turned to EEOC instructions which provided that the deter-
mination as to whether an individual is substantially limited in a major life activity
must be made without regard to “mitigating measures such as medicines, or
assistive or prosthetic devices” [13, at 2146]. The Court concluded that “the
58 / COLEMAN

approach adopted by the agency guidelines . . . is an impermissible interpretation

of the ADA” [13, at 2146]. The effects of measures that correct for or mitigate a
physical or mental impairment must be taken into account when judging whether
that person is “substantially limited” in a major life activity and, therefore,
“disabled” under the act. The Court based this conclusion on a combined reading
of three separate ADA provisions.

1. The act defines a disability as a physical or mental impairment that sub-

stantially limits one or more major life activities. The phrase, “substantially
limits,” is in the present indicative verb form. The language, therefore,
should be read as requiring that a person whose physical or mental impair-
ment is corrected by medication or other measures does not have an impair-
ment that presently “substantially limits” a major life activity [13].
2. The EEOC Guidelines, furthermore, have contemplated an individualized,
case-by-case determination of disability [16]. The EEOC directive that
persons be judged in their uncorrected or unmitigated state would require
courts to make disability determinations either on general information
about a disorder or upon speculation about the effects of an uncorrected
impairment [13].
3. Finally, the Court argued that the figure of 43,000,000 Americans with
disabilities that was incorporated into the act, is inconsistent with
the definition of disability presented by the petitioners. After reviewing
census data and other statistical information, the Court concluded that the
43,000,000 figure reflected an understanding that those whose impairments
were largely corrected by medication or other devices are not “disabled”
within the meaning of the ADA. Had Congress intended to include all
persons with corrected physical limitations among those covered by the act,
the figure would have been much higher [13].

The Court then addressed the issue of United Air Lines vision requirement. It
stated that the ADA allows employers to prefer some physical attributes over
others and to establish physical criteria, but
[a]n employer runs afoul of the ADA when it makes an employment decision
based on a physical or mental impairment, real or imagined, that is regarded as
substantially limiting a major life activity. Accordingly, an employer is free to
decide that physical characteristics or medical conditions that do not rise to the
level of an impairment—such as one’s height, build, or singing voice—are
preferable to others, just as it is free to decide that some limiting, but not
substantially limiting impairments make individuals less than ideally suited
for a job [13, at 2150].

The majority opinion closed by stating that when the major life activity is that of
working, the statutory phrase “substantially limits” requires the plaintiffs to show
they are significantly restricted in the ability to perform either a class of jobs or a
 THE SUTTON TRILOGY / 59

broad range of jobs in various classes. The inability to perform a particular job
does not constitute a substantial limitation in the major life activity of working
[17]. Thus, in addition to their other problems with the case, the Sutton sisters
failed to demonstrate that their poor eyesight limited them from anything more
than the single position of global airplane pilot.

The Majority Opinions in the Companion Cases

The basic principles announced in Sutton were applied in its two com-
panion cases. In Murphy v. United Parcel Service, the plaintiff was an
automotive mechanic with high blood pressure whose job required him to
drive commercial vehicles [18]. Department of Transportation (DOT) health
certification requirements prohibit the operation of a commercial vehicle by
individuals whose current clinical diagnosis of high blood pressure is likely to
interfere with their ability to operate a commercial vehicle safely [19]. Murphy
was discharged when his condition was discovered because it violated this
regulation [18].
The third case, Albertsons, Inc. v. Kirkingburg, involved a truck driver who
was a victim of an uncorrectable condition called amblyopia (lazy eye syndrome)
that left his vision almost monocular [20]. Because monocularity limits the
individual’s depth perception, the DOT requires that commercial truck drivers
possess corrected distant visual acuity of at least 20/40 in each eye. The physician
employed by the company erroneously certified that Kirkingburg met the DOT
standards, but in a later physical examination his monocularity was discovered.
The doctor suggested he seek a DOT waiver to continue with his job. He began that
process, but the company fired him before it was completed because he could not
meet the basic DOT vision requirement. Some months after his discharge, he
received the waiver but the company refused to reinstate him [20].
Murphy and Kirkingburg appealed their cases to the federal courts, ultimately
reaching the Supreme Court. Following the logic expressed in Sutton, the Court
concluded that neither petitioner was limited substantially in any major life
activity because their conditions had been successfully mitigated by medication or
the body’s adjustments [18, 20].

The 1999 Supreme Court Decisions: The Dissenting View

Justice Breyer joined Justice Stevens in his dissent from the Sutton and Murphy
decisions, and the two justices concurred only partially in Kirkingburg. Their
dissenting views centered on the concept of mitigation. They expressed the belief
that a person’s disability is to be determined without considering any mitigation
that has resulted from rehabilitation, self-improvement, prosthetic devices, or
medication.
After reviewing the three-pronged definition of disability, Justice Stevens
concluded that the sweep of the statute’s definition makes it “pellucidly clear” that
60 / COLEMAN

Congress intended the act to cover people who had successfully mitigated the
effects of an otherwise disabling condition. If a disability exists only where a
person’s present or actual condition is substantially impaired, as was argued by
the majority, there would be no reason to protect people who were once disabled
but are now recovered.

Legislative History

The majority stated that there was no need to delve into the legislative history of
the ADA because the statute was clear. However, much of Stevens’ dissent is
based on that history. The ADA originated in the Senate, and its report stated that
the goal of the act was to “ensure that persons with medical conditions that
are under control and therefore do not currently limit major life activities are
not discriminated against on the basis of their medical conditions” [21, p. 23].
Thus, “whether a person has a disability should be assessed without regard to
the availability of mitigating measures, such as reasonable accommodations or
auxiliary aids” [21, p. 24].
The House report repeated the Senate’s basic understanding. When deter-
mining whether an individual’s impairment substantially limits a major life activ-
ity, the “impairment should be assessed without considering whether mitigating
measures, such as auxiliary aids or reasonable accommodations, would result in
a less-than-substantial limitation” [22, p. 28]. The dissent also found further
support in the Report of the House Committee on Labor and Education [23].

The 43,000,000 Argument

The dissent argued further it was “wrong” for the Court to confine the coverage
of the act because a broadened interpretation of the term “disability” would
expand the number of people in the protected class. It offered two reasons for
taking this position. First, the narrow approach would deny coverage to a sizable
portion of the original core group of 43 million. The majority opinion would
exclude controllable conditions such as diabetes and severe hypertension from the
act’s protection, and those conditions were expressly understood as limiting
impairments in the legislative history.
The second reason was tied into the desirability of interpreting the statute
generously—to emphasize inclusion rather than exclusion. The ADA set out
to provide a comprehensive national mandate to prevent discrimination against
individuals with disabilities. The Court has often dealt with other classes
of individuals that have fallen outside the core prohibitions of other antidiscrimi-
nation statutes. In those cases, the court has consistently construed the legislation
to include comparable evils, even those beyond Congress’s immediate concern
when it passed the legislation.
 THE SUTTON TRILOGY / 61

Individualized Treatment

The majority argued that an approach that failed to consider individuals in their
mitigated state would create a system in which people would be treated as
members of a group or class rather than individuals. The dissent argued that
the majority’s approach similarly reduced the need for individualized treatment
because it allowed employers to “dismiss out of hand every person who has
uncorrected eyesight worse than 20/100 without regard to the specific qualifi-
cations of those individuals or the extent of their abilities to overcome the
impairment [13, at 2158]. The dissent also pointed out that the Sutton case was not
about whether the two sisters were qualified or whether they could perform the job
of an airline pilot without putting the public in peril. The case was about an
airline’s duty to come forward with some legitimate explanation for refusing
to hire otherwise qualified applicants because of their uncorrected eyesight or
“whether the ADA leaves the airline free to decline to hire petitioners on this basis
even if it is acting purely on the basis of irrational fear and stereotype [13, at 2157].

DISCUSSION

The Sutton cases have a momentous effect on employees, employers, and on the
process of litigation under the ADA. When the Court decided infirmities should be
evaluated in their mitigated state, millions of individuals were removed from the
ambit of the ADA. Sutton’s broad language could affect the ability of every
individual with a mitigated impairment to qualify for positions, for reasonable
accommodations, for entrance into job-training programs, and for entitlement to a
number of other disability-based terms, conditions, or privileges of employment.
In addition, when the Court so broadly protected the right of employers to set
employment standards, employers were given far greater freedom in screening
applicants and employees than had been granted under any other civil rights
statute. The Sutton decisions, in turn, could have a large impact on insurance
costs and coverage if further interpretations allow employers to set employment
standards that would remove qualified applicants who were substandard insurance
risks from the hiring pool.
The effect on the legal process is also immense. The plaintiff win rate in ADA
cases is low [24]. A recent American Bar Association study of almost all ADA trial
and appellate court rulings concluded that employers prevailed in 92 percent of the
cases [25]. A later study of 267 federal appellate court cases found plaintiffs
prevailed only 4 percent of the time [25, T. 5]. Because the post-Sutton plaintiff
has a more difficult job establishing the existence of a disability, more claims will
be intercepted earlier in the legal process, and the number of plaintiff “wins”
will probably drop even further. Sutton may also encourage forum shopping,
particularly where state laws more generously interpret the term “disability” [26].
62 / COLEMAN

Problems with the Majority’s Decision

Ignoring the Second Prong

The Sutton Court ignored the second prong of the definition of disability. The
Court overlooked the fact that individuals can be considered statutorily disabled if
they have “a record of such an impairment.” The Sutton sisters and Kirkingburg
had records indicating their vision was seriously impaired, and seeing is defined
by the act as a major life activity. Murphy had a record of hypertension and
Kirkingburg of amblyopia. If the term “disability” is defined in three ways linked
by the connective “or,” the Court cannot logically ignore any part of the definition.

Evaluation in the Unmitigated State

The Court also argued that evaluating disabilities on a unmitigated basis vio-
lates the rule that disabilities are to be evaluated on a case-by-case basis. Justice
Stevens’ comments about it being no less universalistic to require a person to be
judged in a mitigated rather than an unmitigated state and his comments about it
being as easy to test the Suttons with their glasses on as with their glasses off seem
to make good sense.
The Court further explained that inferences drawn about how a person would
perform in an unmitigated state would be speculative if the mitigating measures
have controlled the disorder. But how much speculation is required when all
the disorders confronted in the Sutton Trilogy were so well-documented? The
Suttons, without glasses, might have difficulty finding the plane, let alone flying it.
Murphy’s hypertension, left alone, could make him a menace at the wheel as could
the limited depth perception caused by Kirkingburg’s monocularity.

Forty-Three Million Americans

The Court also asserted that the ADA’s reference to 43 million Americans with
disabilities meant those whose impairments are largely controlled by medication
or other devices are not disabled within the meaning of the ADA. Justice Stevens
described this as a “thin reed” upon which to make a significant change in the
interpretation of a major statute [13, at 2160; 28], and I agree. Sutton represents an
important shift in public policy. The Court’s arguments about the number of
people who would be covered are based on a figure contained in the ADA’s
exhortative preamble, tangential to the substance of the act, and not subject to
serious scrutiny or debate. This is a weak basis for a change in policy that affects a
significant part of the disabled population.

Ignoring the Legislative History

The majority’s unwillingness to examine the legislative history is mind-

boggling. The fact that two justices drew contrary conclusions about the
 THE SUTTON TRILOGY / 63

interpretation of the statute should have sent both sides to the legislative history to
clarify the intent of Congress. As noted earlier, both houses of Congress did
consider whether disabilities should be evaluated in their mitigated or unmitigated
state and concluded that protection should be extended to individuals whose
disabilities are, in fact, checked by mechanical devices, medication, or their own
special efforts.

PROBLEMS IN THE DECISIONS’ IMPLICATIONS

The Reach of the Decisions

What are the boundaries of the Sutton Trilogy? When the Court determined that
infirmities were to be evaluated in their mitigated state, it placed no bounds on
the infirmities. The decisions covered only individuals with near-sightedness,
hypertension, and amblyopia, but the language extended the potential application
of the concept to some large but undefined area. For example, how far do
the Sutton decisions reach in the area of mental impairments? Individuals with
widespread infirmities such as attention deficit/hyperactivity disorder (ADHD),
bipolar disorder, or depression have traditionally been considered to be protected
under the ADA. Are they now?
Using ADHD as an example, a strict construction of Sutton suggests a person
who suffers from the disorder will not be covered by the act if it is controlled by
medication. Yet part of the problem with disorders such as ADHD is one of denial.
The individuals come to think of themselves as being cured and stop taking the
medicine. If they stop taking the medication, do they then become covered by the
ADA? Has Sutton created the anomalous situation whereby the person who has
adapted to an infirmity by a device or a medicine might benefit by abandoning the
adaptation?

Employment Standards

Perhaps the most serious problem ties into Sutton’s treatment of employment
standards. While the ADA gives employers some discretion in setting employment
standards, the Sutton decision appears to give them almost unlimited freedom. In
determining essential functions, for example, the act states that “consideration
shall be given to the employer’s judgment as to what standards are essential . . . ”
[1, §102(8)]. However, the Sutton Court, went further, saying that an “employer is
free to decide that physical characteristics or medical conditions that do not rise to
the level of impairment . . . are preferable to others, just as it is free to decide that
some limiting, but not substantially limiting impairments make individuals less
then ideally suited for a job [13, at 2150].
64 / COLEMAN

Phrases such as “limiting, but not substantially limiting impairments” create

an almost impossible interpretive tightrope for employers and employees. But
such statements also ignore Section 102 of the ADA, which prohibits employers
from utilizing standards or criteria: “(A) that have the effect of discrimination
on the basis of disability” [1, §102(3)(A)]. Such statements also ignore the
well-known disparate impact test applied under other civil rights statutes. This test
essentially means that an employer may establish job requirements, but if the
requirement leads to substantially fewer members of a protected class being
qualified for employment, the standard itself must be shown to be necessary for
job performance. The Sutton language appears to deny the disparate impact test to
plaintiffs claiming discrimination under the ADA.

Why a Broad Policy Statement?

Finally, the Court could have decided the cases on a more limited basis.
Rather than creating a general rule on testing in the mitigated or unmitigated
state, the Court could have focused on the public safety aspects. It is possible
that testing impaired employees in a mitigated state makes more sense when
those employees are charged with the public safety, as are airline pilots and
truck drivers. The Court could also have chosen to focus on whether the
claimed disability in its unmitigated state denied the petitioners entry into a
broad class of jobs or several jobs in different classes. It surely could have
found that the infirmity claimed by the Sutton sisters did not qualify under this
standard. The majority considered this option but chose to decide the case on a
broader basis.

SUMMARY AND CONCLUSIONS

This article examined three recent decisions made by the U.S. Supreme Court
that have changed the interpretation of the Americans with Disabilities
Act. The three cases, the Sutton Trilogy, involved individuals with
infirmities whose conditions were controlled by devices, medication, or by the
body’s own adjustments. The core issue was whether disability determinations
under the ADA should be made by considering the infirmity in a mitigated or
unmitigated state.
The legislative history of the ADA records that both houses of Congress
considered the issue and determined that a person’s disability should be evaluated
in the unmitigated state. The EEOC, other agencies that had interpreted the
act, and the earlier decisions of every circuit court followed the course indicated
by Congress. However, in the Sutton cases, the Supreme Court concluded that
the interpretation made by the federal agencies was “impermissible.” Disabilities
should be evaluated in their mitigated state, thereby leaving individuals
 THE SUTTON TRILOGY / 65

unprotected by the ADA if their infirmities are held in check by prosthetic devices,
medicines, or other means.
The Sutton cases address a difficult problem and the Court’s solution was not
unreasonable. It is difficult to regard people as disabled when they can correct their
impairment with a mitigation as simple as eyeglasses. But in deciding the cases on
a broad basis, the Supreme Court took on a policy-making role that ignored the
original intentions of Congress, reshaped the interpretation of the ADA, altered its
coverage in a monumental way, and, in my mind, ignored the letter and violated
the spirit of the law.
Justice Stevens’ dissent implies that the majority decided the Sutton cases on the
basis of docket considerations—that the Court’s decision was influenced by the
specter of an overwhelming flood of lawsuits that would follow a decision in favor
of the previously accepted test for disability [28]. It is also possible that some
members of the majority thought that if they yielded to the earlier interpretations of
the law, they would open the floodgates to millions of undeserving individuals—to
people who were perfectly capable of handling a wide variety of jobs, whose
disabilities were easily and inexpensively correctable.
But the Court’s decisions, regardless of motivation, come at a very high cost.
The language on employment standards appears to enable an organization to deny
employment opportunities whenever the employer is uncomfortable with their
corrected disability. The language suggests that the qualified applicant with a
prosthetic device might be denied employment lawfully, even if the only reason
is an employer’s preference for an “able-bodied person.” The fully qualified
epileptic, whose disorder is controlled by medication, might be rejected lawfully
because the employer was haunted by a “What happens if the medicine doesn’t
work one day?” specter. An applicant with a controlled condition of bipolar
disorder might be rejected lawfully because the employer is uncomfortable with
employees whose behavior is chemically influenced. The Sutton decisions punish
otherwise disabled employees for engaging in self-help and for taking advantage
of medical advances.
Furthermore, as Justice Stevens argued, limiting the coverage of the ADA also
runs counter to the approach taken by Congress and the courts to every other civil
rights statute. The rule has been to interpret these laws generously. Prohibitions
on racial discrimination, originally intended to protect African Americans, for
example, were soon extended to Hispanics, Asians, Native Americans, and other
groups. The original prohibition on sexual discrimination was, over time, extended
into sexual harassment and same-sex issues [29]. The ADA shares not only a
tradition, but a common language with those statutes. The act says broadly that:
“No covered entity shall discriminate against a qualified individual with a dis-
ability, because of the disability . . . in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee compensation, job
training, and other terms and conditions of employment [1, §12112(2)]. Sutton
flies in the face of these traditions and these words.
66 / COLEMAN

A Simpler, More Traditional Solution

A better approach to the problem would be one more closely tied to the
traditional ways that agencies and courts have approached civil rights issues in
employment. The recommended approach is one that shifts attention from the
basis for determining disability to the basis for the employment standards.
The first question should be factual: was the individual denied an employment
opportunity because of an infirmity, the record of one, or the belief that one
existed? This question is a simple variation on the “but for” rule traditionally
applied in civil rights cases. In relation to a classic civil rights case, would
Mr. Griggs have been promoted “but for” the company’s requirement of a high
school diploma? [30]. Would Messrs. Kirkingburg and Murphy have kept their
jobs if it weren’t for their physical problems? Would the Sutton sisters have been
hired if their vision was better?
If the answer to this question is yes, the next task is to determine the employ-
ment effects of the organization’s decision. The question would be this: Does this
infirmity, the record of one, or the belief that one existed deny the individual
opportunities in a single broad class of jobs or a number of jobs in separate classes?
The Sutton sisters might have difficulty meeting this requirement, but Murphy
and Kirkingburg would probably not because they were denied employment
throughout the field of commercial truck operation.
If the answer to the second question is yes, the third step moves us further along
with the traditional form of analysis. Can the individual meet the requirements of
the position in question with reasonable accommodation? The question regarding
the plaintiffs in the Sutton Trilogy would concern whether they could meet the
requirements of the positions in question with reasonable accommodation. If the
corrections enable the individual to perform the job, denying them opportunity at
the job could violate the ADA.
Finally we move to employment criteria. United Airlines maintained that
uncorrected vision of 20/100 was necessary to qualify for the job of global airline
pilot. The criterion should be subjected to the same disparate impact test as was the
requirement of a high school diploma or of a score in the intelligence test in Griggs
[30]. If an employment criterion affects applicants or employees substantially
more than it affects the rest of the population, the burden falls on the employer
requiring the test to establish its necessity and efficacy. And if the employer is
unable to establish the necessity or efficacy of the employment criterion, the
criterion should not be a bar to the petitioner.
The same kind of disparate impact test should be applied to such federal
regulations as those of the U.S. Department of Transportation that figured so
prominently in Sutton’s two companion cases. It makes a great deal of sense to
consider Justice Thomas’ suggestion in the Kirkingburg case. Justice Thomas
Joined the majority opinion, “only on the understanding that it leaves open the
argument that federal laws such as the DOT’s visual acuity standards might
 THE SUTTON TRILOGY / 67

be critical in determining whether a plaintiff is a ‘qualified individual with a

disability’” [20, at 2175].

ACKNOWLEDGMENTS

I thank two Rutgers undergraduate students, Diane Cooney-Painter and Sukhjit

Moonga, whose work on the relationship between Attention Deficit Disorder and
the Americans with Disabilities Act gave me the idea to do this paper. I also thank
David Batista of the Law School library of Rutgers University, Camden, for his
bibliographic assistance and Professors Carol Scarborough and Gayle Porter in the
Rutgers Camden School of Business for their comments on the manuscript.

* * *

Charles J. Coleman is the newly appointed editor of this journal. For thirty years
he was a professor of management at Rutgers University in Camden, New Jersey.
He is now a Senior Fellow at St. Joseph’s University in Philadelphia.

ENDNOTES
1. Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
2. C. C. Jones, Individuals Protected by the Employment Provisions of the Ameri-
cans with Disabilities Act, Journal of Individual Employment Rights, pp. 209-220,
1994-95.
3. S. Feldman, Americans with Disabilities Act: Employer Obligations, Journal of Indi-
vidual Employment Rights, pp. 91-113, 1993-94.
4. Legislative History of P.L. 1-1-336, The Americans with Disabilities Act. Committee
on Labor and Education, U.S. House of Representatives, 101 Congress, 2d Session
(Dec. 1990), Vol. 1. Serial 102-A, p. 124.
5. R. D. Lee and P. S. Greenlaw, Rights and Responsibilities of Employees and
Employers Under the Americans with Disabilities Act of 1990, Journal of Individual
Employment Rights, pp. 1-13, 1998-99.
6. Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. The coverage of the Rehabilitation
Act, however, was limited to employees of the federal government and of federal
contractors, while the ADA extends to private and public sector employers of 15 or
more employees.
7. CFR § 1630.2(i).
8. Weiler v. Household Finance Corp., 101 F.3d 619, 625 (7th Cir., 1996).
9. The EEOC’s regulations define a qualified individual with a disability as one
who satisfies the prerequisite skill, experience, education, and other job-related
requirements of the position the individual either holds or desires, 29 C.F.R.
§ 1613.702(f) 1991.
10. 29 CFR App. § 1630.2(n) 1991.
11. J. E. Grenig, Disabled Wokers, in T. Bornstein, A. Gosline, and M. Greenbaum, Labor
and Employment Arbitration, Matthew Bender, New York, 1998.
68 / COLEMAN

12. A. F. Silbergeld and R. B. Meeks, Federal Appellate Courts are Split on How to Treat
Plaintiffs with Chronic Health Conditions that Can Be Mitigated, Under the Americans
with Disabilities Act, National Law Journal, Monday, May 4, 1998, p. 2(5).
13. Sutton v. United Airlines, 119 S.Ct. 2139 (1999).
14. The Supreme Court referred to the following decisions which held that disabilities
should be determined in their mitigated state: Bartlett v. New York State Bd. of Law
Examiners, 156 F.3d 321, 329 (2d Cir. 1998), learning disability that affected the
ability to read; Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 629-630 (7th Cir. 1998),
diabetes; Matzcak v. Frankford Candy & Chocolate Co., 136 F.3d 933, 937-938,
(3d Cir. 1997), epilepsy; Arnold v. United Parcel Services, Inc., 136 F.3d 854, 859-866,
(1st Cir. 1998); and Washington v. HCA Health Services of Texas, Inc., 152 F.3d 464,
470-471 (5th Cir. 1998), adult still disease. For a similar result, see Elizabeth Criado v.
IBM Corporation, 145 F.3d 437 (1st Cir. 1998), attention deficit disorder. In the Sutton
decision, Justice Stevens stated repeatedly in his dissent that eight of the nine circuits
that have addressed the mitigation issue define the term “disability” without regard to
ameliorative measures [14, at 2153].
15. 130 F.3d 933 (1997).
16. The determination of disability must be made on a case by case basis without regard
to mitigating measures. . . . ” 29 CFR pt. 1630. App. § 1630.2(j) (1998). (Emphasis
added.) See also Bragdon v. Abbott, 524 U.S. 624 (1998), where the court declined to
consider whether HIV was a per se disability under the ADA.
17. 29 CFR § 1630.2(j)(3)(1).
18. Murphy v. United Parcel Service, 119 S.Ct. 2133 (1999).
19. 49 CFR §391.41(b)(6).
20. Albertsons, Inc. v. Kirkingburg, 119 S. Ct. 2162 (1999).
21. S. Rep. No. 101-116, p. 23, 24 (1989). Reference made to controlled diabetes and
epilepsy.
22. H. R. Rep. No. 101-485, pt. III. p. 28 (1990).
23. The report referred to hearing loss and epilepsy and said they were covered by Section
(A), “even if the effects of the impairment are controlled by medication.” Com. on Ed.
and Lab., H. Rep. 101 Cong., 2d Session (Dec. 1990) v. 1., p. 325.
24. B. A. Lee, The Implications of ADA Litigation for Employees: A Review of Federal
Appellate Court Decisions, July 1999, scheduled for publication by Human Resource
Management (University of Michigan).
25. J. Parry, Study finds employers win most ADA Title I Judicial and Administrative
complaints, Daily Labor Report, (BNA), 119, E-a-3, June 22, 1998. Cited in [25, p. 9].
26. Notes from a seminar discussion of a paper submitted by Barbara A. Lee, Comparison
of Employment Provisions of the ADA and NJLAD, presented at ICLE seminar on
Americans with Disabilities Act/Employment Discrimination Conference . . . Future of
the ADA Litigation After the Supreme Court Holdings in Olmstead, Kirkingburg,
Murphy, Sutton & Cleveland, New Jersey Institute for Continuing Legal Education,
October 1, 1999, pp. 223-230.
27. “In the end, the Court is left only with its tenacious grip on Congress’ finding that
‘some 43,000,000 Americans have one or more physical or mental disabilities,’ . . . and
that figure’s legislative history is extrapolated from a law review article authored by the
drafter of the original ADA bill introduced in Congress in 1988 [14, at 2160].
 THE SUTTON TRILOGY / 69

28. For example: “It has also been suggested that if we treat as “disabilities” impairments
that may be mitigated by measures as ordinary and expedient as wearing eyeglasses, a
flood of litigation will ensue [14, at 2159].
29. Oncale v. Sundowner Services, Inc., 118 S.Ct. 998 (1998).
30. Griggs v. Duke Power Co., 401 U.S. 424 (1971).

Direct reprint requests to:

Charles J. Coleman
19 Potter St.
Haddonfield, NJ 08033
 J. INDIVIDUAL EMPLOYMENT RIGHTS, Vol. 9(1) 71-91, 2000-2001

CUMULATIVE INDEX: VOLUMES 1-8

JOURNAL OF INDIVIDUAL EMPLOYMENT RIGHTS
1992-1993 to 1999-2000

THEODORA T. HAYNES, M.L.S., M.B.A.

Rutgers University–Camden, New Jersey

SUBJECT INDEX

Abusive language 1(2):145

Accidents, workplace 8(4):295
Active identification badges 3(2):101
Adarand Constructors, Inc. v. Pena 5(4):267
Adverse selection 7(3):215
Affirmative action 2(1):7, 5(4):267, 8(1):61
After-acquired evidence 5(1):11, 6(2):81
Age Discrimination in Employment Act (ADEA) 5(1):11, 6(3):155
Agency Shops 1(1):33
Alcohol abuse 1(1):71, 1(1):83, 2(4):327, 6(1):29
Alcohol abuse prevention 2(2):115
Alexander v. Gardner-Denver 2(4):305
Alternative dispute resolution (ADR) 2(1):1, 2(1):19, 2(4):279, 2(4):283,
3(4):307, 4(2):101, 5(1):71, 7(3):189
Americans with Disabilities Act (ADA) 1(4):351, 2(2):115, 2(2):91, 2(2):133,
3(1):1, 3(3):197, 3(3):209, 3(4):285, 3(4):325, 4(2):101, 4(2):131,
4(3):185, 5(1):19, 6(1):49, 6(1):71, 6(3):167, 7(1):1, 7(2):167, 7(4):325,
8(3):193
Americans with Disabilities Act (ADA), awareness of 6(1):71
Appearance code 7(2):101
Arbitration 1(1):19, 1(2):135, 1(2):145, 1(4):323, 2(1):19, 2(4):275,
2(4):279, 2(4):283, 2(4):293, 2(4):305, 2(4):319, 2(4):327, 3(1):35,
3(4):315, 4(3):217, 4(3):245, 4(4):319, 5(1):39, 5(2):101, 5(4):311,

71
Ó 2000, Baywood Publishing Co., Inc.
72 / HAYNES

[Arbitration]
6(1):29, 6(2):103, 7(1):49, 7(2):127, 7(2):149, 7(3):189, 7(4):281,
7(4):289, 8(3):219, 8(3):231,
Arbitration standards 7(2):127
Assault 6(2):127
Astra settlement with EEOC 8(1):1
Attention deficit disorder 5(1):19
Attitudes 6(3):167
Attorneys 6(3):219, 8(2):143
Australia 2(1):29, 4(1):41, 4(3):229, 6(1):15
Authority 8(3):219
Automobile industry 1(4):357

Barbados 2(2):165
Bargaining issues 8(1):77
Benefit programs 6(4):255
Bessard v. California Community Colleges 5(4):255
Bias against men 4(4):261
Bishop Leonard Regional Catholic School v. Unemployment Compensation
Board of Review 3(3):221
Bradley v. Pizzaco of Nebraska 4(1):41
Brozost court 8(2):143
Burlington Industries v. Ellerth 8(2):95
Business owners 6(3):167
Business schools 4(2):141

Canada 1(3):219, 1(3):263, 1(4):273, 2(1):39, 2(2):153, 3(2):155, 4(2):87,

4(3):217, 5(4):325, 6(4):255
Carr v. Allison Gas Turbine 5(4):303
Change process 8(4):307
Civil Rights Act of 1964, Title VII 2(4):275, 3(3):221, 5(2):91, 6(2):127,
6(4):305, 7(2):101, 8(1):15, 8(2):155
Civil Rights Act of 1991 1(4):343, 2(1):1, 2(1):7, 2(2):91, 3(2):91, 4(4):277,
7(2):149
Co-employment 4(2):151
Collective bargaining 1(4):343, 2(1):29, 4(1):41
Communication 6(3):201
Company characteristics 5(2):91
Computer use 1(4):335
Confidentiality 5(1):53
Consultants, management 8(4):261
 CUMULATIVE INDEX: VOLUMES 1-8 / 73

Contract labor 4(2):151, 4 (4): 287

Cook v. State of Rhode Island 4(2):123
Court decisions 8(1):1, 8(1):15
Covenants not to compete 6(3):219
Criminal activities 5(1):39
Customer complaints 5(4):311

Defensible ADR 7(3):189

Demotion 7(4):289
Discharge 1(2):93, 2(2):153, 2(4):339, 5(1):11, 7(3):241, 7(4):289
Discharge, constructive 8(1):47
Discipline 1(2):115, 2(4):339, 5(1):39, 5(2):101, 5(2):137, 5(4):289,
7(3):247, 7(4):267
Disclaimers 1(4):309
Discrimination 1(2):135, 1(4):343, 6(1):1, 6(2):119
Discrimination, age 1(4): 293, 4(2): 141, 6(3): 155, 8(2): 125
Discrimination, disparate impact 1(1):19
Discrimination, employment 8(3):231
Discrimination, homosexuals 1(2):115, 4(3):173, 4(4):319, 5(3):217
Discrimination, national origin 4(4):303, 7(4):307
Discrimination, obesity 4(2):123, 4(2):131
Discrimination, race 4(1):67
Discrimination, religion 3(3):221, 7(4):307
Discrimination, same-sex 8(2):155
Discrimination, sex 3(4):265, 6(3):155
Discrimination, sexual preference 8(1):15
Disloyalty, employee 4(3):245
Diversity 2(4):363
Double recovery 2(2):123
Dress code 6(2):103, 7(2):101
Drug abuse 1(1):71, 1(1):83, 2(4):327, 6(1):29
Drug abuse prevention 2(2):115
Drug testing 5(2):125, 7(3):215, 8(4):295
Due process 7(3):247

Eckles v. Consolidated Rail Corp. 7(2):167

Economic inequality 7(4):281
Economy 1(3):263
EEOC Guidelines 7(3):199
Electromation, Inc. v. International Brotherhood of Teamsters 2(3):199,
4(1):55
74 / HAYNES

Electronic mail 5(3):235, 6(4):289

Emotional distress 6(2):103
Employee benefit plans 3(1):65
Employee benefits, psychological 3(2):113
Employee characteristics 5(3):177, 7(4):267
Employee discharge as a crime 2(2):153
Employee participation programs 2(3):199, 4(1):55, 5(1):71
Employee Retirement Income Security Act (ERISA) 3(1):65
Employee rights 4(2):87, 8(4):325
Employee training 8(1):77
Employer opposition to union organizing 5(2):137
Employer-employee relations 1(1):1
Employment agreements 5(2):153
Employment discrimination law 3(4):307
Employment handbooks 1(4):309, 5(4):279
Employment rights 1(1):1
Employment rights trends 6(2):141
Employment-at-will 1(4):273, 1(4):309, 4(1):15, 5(2):153, 5(4):279, 7(1):61,
8(4):261
Empowered employees 4(3):185, 6(3):201
Enterprise bargaining 4(3):229, 6(1):15
Epilepsy 3(4):285
Equal Employment Opportunity Commission Guidelines 7(2):101
Ergonomics 1(4):335
Executive pay 1(4):357
Exempt employees 6(1):41
Extraterritorial human resources 3(1):49
Extraterritorial provisions 4(4):277

Fair Labor Standards Act (FLSA) 4(4):287, 6(1):41

Fair share 1(1):33
False Claims Act 8(4):325
Family and Medical Leave Act (FMLA) 8(3):171
Faragher v. City of Boca Raton 8(2):95
Football labor relations 7(2):91
Former employees 6(2):119, 7(1):73
Fraternization 3(4):265, 8(1):29
Fraudulent inducement 7(1):61
Free speech 5(1):1, 8(1):39, 8(2):105

Garment workers 4(4):287

Gender-bias 2(1):57, 4(1):1, 5(3):189, 5(4):289
 CUMULATIVE INDEX: VOLUMES 1-8 / 75

Genetic illness 4(3):185

Genetic testing 2(3):225
Gilbert v. Homar 7(3):227
Gilmer v. Interstate/Johnson Lane Corp. 1(4):323, 2(1):19, 2(4):275,
2(4):283, 2(4):293, 2(4):305, 2(4):313, 2(4):319, 6(1):49, 8(3):231
Government regulation 2(4):363
Grievance procedure 5(4):325
Grievance resolution 5(3):189
Grieving employees 5(3):177
Grooming policy 4(1):67

Hair 4(1):67
Harassment by nonemployees 3(1):75
Hassan v. Auburn University 4(4):303
Health care 3(4):275
Health hazards 1(4):335
Healthcare 1(3):219
Higher education 1(4):293, 2(1):73, 3(3):171, 4(2):141, 4(4):303, 5(1):19,
8(1):39, 8(2):105
Hiring 1(1):83, 1(4):335
HIV/AIDS 1(3):219, 3(4):315, 3(4):325, 6(1):1
Hopkins v. Baltimore Gas & Electric 5(3):205
Hospitals 1(3):219
Hostile environment 4(2):101, 8(1):61
Human resource managers 5(2):125, 6(2):141, 6(4):255, 7(3):227, 7(4):325

Image 6(1):71
Impermissible collateral attack doctrine 3(4):325
Injured customers 6(4):305
Injured workers 1(3):253
Insubordination 1(2):145
Intellectual property 3(3):171
Internet access policy 6(3):179

Just cause 1(3):185, 2(3):263, 4(2):111

Just cause standard 3(4): 307

Labor movement history 1(1):7, 6(2):141

Labor policy 6(2):141
76 / HAYNES

Labor-management conflict 7(1):61

Labor-management cooperation 4(1):31, 4(3):229, 5(1):71, 7(2):91
Labor-management models 7(2):91
Labor-management relations 1(1):7
Landgraf v. USI Film Products 3(2):91
Leadership 6(3):193, 6(3):201, 8(3):219
Legal representation 4(3):217
Long-service employees 3(2):149
Loyalty 3(2):149
Loyalty oaths 5(4):255

MacKenzie v. Miller Brewing 8(1):1

Management 1(1):19, 2(4):363
Mandatory retirement age 1(4):293
Martin v. Wilks 2(1):7
McKennon v. Nashville Banner Publishing Co. 5(1):11, 6(2):81
Media 8(2):113
Mediation 2(1):1
Medical leave 8(3):171
Mischievous behavior 6(2):127
Misco 6(2):81
Misconduct 4(2):111, 5(4):311, 7(3):227, 7(4):267
Model Employment Termination Act (META) 1(1):19, 1(2):93, 1(3):185,
2(1):1, 2(3):263, 2(1):19
Monitoring 6(4):289
Moral hazard problems 4(2):151
Motivation 2(3):209
Municipal organizations 8(4):307

National Labor Relations Act (NLRA) 1(3):245, 3(2):155, 3(2):91

National Labor Relations Board (NLRB) 2(2):165, 2(4):293, 4(1):55
Need to know, employers 1(2):105, 2(2):133
Negligent hiring 6(4):305
Nepotism policy 8(1):29
Noncompete clauses 6(3):219
Nonunion 1(2):93, 2(1):39, 2(3):183, 2(3):199, 2(3):263, 3(2):113, 4(1):31,
4(2):87, 5(3):177, 5(4):325

O’Boyle et al. v. Louisiana Tech 4(2):123

Occupational Safety and Health Administration (OSHA) 1(4):309
 CUMULATIVE INDEX: VOLUMES 1-8 / 77

Occupational therapy 2(1):29, 4(1):41

Off-duty conduct 3(3):243
Off-duty misconduct 6(4):271
Older Workers Benefit Protection Act (OWBPA) 8(2):125
Oncale v. Sundowner Offshore Services 8(2):155
Organizational behavior 8(3):171
Organizational change 6(1):15
Oubre v. Entergy Operations, Inc. 8(2):125

Pattern Makers’ League of North America 1(3):245

Perceived disability 4(2):123
Perception of employer response 5(2):137
Performance evaluation 2(1):73, 7(3):241
Personnel files 7(1):73
Physicians 7(4):331
Pickering v. Board of Education 8(1):39, 8(2):105
Pornography 6(3):179
Power 8(3):219
Pregnancy 3(4):265
Privacy 1(2):105, 1(2):171, 2(2):133, 3(1):17, 3(2):101, 3(2):113, 3(3):197,
5(3):235, 6(4):271, 6(4):289
Private sector 7(3):247, 7(4):325
Procedural justice 8(4):307
Psychological contract 6(3):193, 7(1):33
Psychological testing 1(4):351
Public sector 5(1):1, 5(3):189, 6(1):1, 7(3):247, 7(4):281, 7(4):331
Public sector employees 7(1):15

Reasonable accommodation 2(2):91, 7(1):1

Reasonable woman standard 4(1):1
Reinstatement 1(3):253, 2(2):165, 2(3):183
Religious Freedom Restoration Act 5(4):255
Religious freedom 5(4):255
Restrictive covenants 3(4):275, 8(2):143
Retaliation 6(2):119
Retroactive application of an Act 3(2):91
Reward systems 2(3):209
RICO (Racketeer Influenced and Corrupt Organizations) 2(2):153
Right to know, union 3(3):197
Rights waivers 8(2):105
78 / HAYNES

Safety 5(2):125, 6(1):1, 6(2):103

Same-sex sexual harassment 5(2):91, 5(3):205
Screening 1(4):351
Screening techniques 1(2):105
Self-employment 7(4):307
Seniority 3(2):149
Seniority rights 7(2):167
Set-asides 5(4):267
Sexual favoritism 7(3):199
Sexual harassment 1(2):115, 2(2):123, 2(4):339, 3(1):75, 3(2):155, 4(1):1,
4(2):101, 4(4):261, 4(4):319, 5(2):91, 5(2):101, 5(3):205, 5(4):289,
5(4):303, 7(2):127, 7(2):149, 7(3):199, 8(1):1, 8(2):113, 8(2):95
Sleep disorders 3(4):285
Sleeping on the job 3(1):35
Smoking 2(3):251, 3(2):133, 3(3):243
Smoking cessation programs 3(3):243
Social security disability benefits 6(1):49
Sports 3(4):315
Standards of proof 3(2):155
Strikes 7(1):33, 7(4):331
Student attitudes 2(1):73
Subjective criteria 1(1):55
Supervisors 2(3):209
Suspension 6(1):41
Sweden 1(2):171

Tax obligation 7(1):15

Teachers 7(3):241
Television portrayal 8(2):113
Temperance 1(1):71
Tenure and promotion policy 5(1):53
Third-party representation 3(2):113
Training programs, union-management 8(1):77
Training, employee 4(1):67
Trust 6(3):193

U.S. labor policy 8(4):261

U.S.-Russian enterprises 3(1):49
Unemployment 1(3):263
Unemployment compensation 7(3):227
Union 4(2):87
 CUMULATIVE INDEX: VOLUMES 1-8 / 79

Union fees 1(1):33

Union membership 1(3):245
Union organizing 5(2):137
Union-management relations 1(4):357
Unions 1(1):7, 2(4):319, 3(2):133, 4(1):31, 7(4):281
Unions, development 7(1):33, 7(4):331
University of Pennsylvania v. EEOC 5(1):53
Unjust dismissal 1(3):185, 2(1):39, 2(2):165, 2(3):183, 4(2):111, 6(4):235,
8(3):193, 8(4):261
Unwritten expectations 6(3):167

Virgin Islands, British 6(4):235

Wards Cove Packing v. Atonio 1(1):55

Waters v. Churchill 5(1):1
Watson v. Fort Worth Bank and Trust Co. 1(1):55
Whistleblowing 8(4):325
White collar workers 6(1):15
Workers’ compensation 1(3):253, 2(2):123, 3(1):1, 4(1):15, 6(2):127
Workforce 2000 2(4):363
Workplace romance 8(1):29
Works-for-Hire Doctrine 3(3):171
Wrongful discharge 1(2):135, 1(4):273

Young v. Southwestern Savings and Loan Association 8(1):47

AUTHOR INDEX
(with primary subject for each article)
Journal of Individual Employment Rights
1992-1993 to 1999-2000
Aiello, Michael J.
Privacy 3(2):113
Allegro, Jacques
Procedural justice 8(4):307
Allen, Robert E.
Executive pay 1(4):357
Anderson, Franklin
Employee discharge as a crime 2(2):153
80 / HAYNES

Arnold, David W.
Psychological testing 1(4):351
Atkinson, John S.
Drug testing 7(3):215

Balfour, Alan
Dress code 7(2):101
Balkin, David B.
Executive pay 1(4):357
Baxter, Gregory W.
Arbitration 2(1):19
Bierman, Kenneth T.
Discrimination, obesity 4(2):131
Black-Branch, Jonathan L.
Affirmative action 8(1):61
HIV/AIDS 6(1):1
Bohlander, George W.
Arbitration 7(3):189
Discharge, constructive 8(1):47
Boreman, Brian D.
Discrimination, same-sex 8(2):155
Bozeman, Dennis P.
Union organizing 5(2):137
Broderick, Martha
Free speech 8(1):39, 8(2):105
Brown, Steven
Employee discharge as a crime 2(2):153
Brown, William S.
Privacy 2(2):133
Brummert, Jennifer E.
Sexual harassment 8(2):113
Butler, Suzanne R.
Sexual harassment 2(4):339

Campbell, Daniel T.
Fair Labor Standards Act (FLSA) 6(1):41
Cangemi, Joseph
Psychological contract 6(3):193, 7(1):33
Cangemi, Joseph P.
Empowered employees 6(3):201
Leadership 8(3):219
 CUMULATIVE INDEX: VOLUMES 1-8 / 81

Canty, Ann L.
After-acquired evidence 5(1):11
Civil Rights Act of 1991 4(4):277
Sexual harassment 5(4):303
Carbo, Jerry A., II
Sexual harassment 8(1):1
Chotalia, Shirish P.
Sexual harassment 3(2):155
Chuff, David F.
Employment-at-will 7(1):61
Cohen, Cynthia F.
Dress code 7(2):101
Cohen, Jeffrey Bennett
Negligent hiring 6(4):305
Coulson, Robert
Arbitration 2(4):279
Model Employment Termination Act (META) 2(1):1
Covington, Robert N.
After-acquired evidence 6(2):81
Crow, Stephen M.
Discrimination, age 4(2):141
Discrimination, homosexuals 4(3):173, 4(4):319, 5(3):217
Sexual harassment 5(4):289
Temperance 1(1):71
Culverhouse, Renee D.
Sexual harassment 2(2):123
Cumberbatch, Jeff
Unjust dismissal 2(2):165, 6(4):235

Decker, Kurt H.
Arbitration 2(4):305
Employment handbooks 1(4):309, 5(4):279
Employment-at-will 8(4):261
Family and Medical Leave Act (FMLA) 8(3):171
Privacy 1(2):105, 3(1):17, 6(4):271
Deeny, Robert J.
Arbitration 7(3):189
Denton, David W.
Unjust dismissal 8(3):193
DiBattista, Ron A.
Benefit programs 6(4):255
82 / HAYNES

Dilts, David A.
Higher education 2(1):73
DiNoto, Michael J.
Employee rights 4(2):87
Dixon, Yvonne T.
National Labor Relations Board (NLRB) 2(4):293
Doyle, William P.
False Claims Act 8(4):325
Driscoll, Laura
Drug testing 5(2):125
Dunlavey, James
National Labor Relations Act (NLRA) 1(3):245

Eastman, Wayne
Employment-at-will 4(1):15
Eberhardt, Bruce
Americans with Disabilities Act (ADA) 6(3):167
Eberhardt, Bruce J.
Drug testing 5(2):125
Eden, Genevieve
Unjust dismissal 2(1):39, 2(3):183
Elder, Celia J.
Garment workers 4(4):287
Elkiss, Helen
Sexual harassment 5(2):101, 7(2):149
Emmerich, Frank R., Jr.
Genetic illness 4(3):185

Feldman, Jacob S.
Americans with Disabilities Act (ADA) 2(2):91
Fink, Ross L.
After-acquired evidence 5(1):11
Discrimination, obesity 4(2):123
Sexual harassment 5(4):303
Fiorito, Jack
Union organizing 5(2):137
Fitzpatrick, Robert B.
Employment discrimination law 3(4):307
Foegen, J.H.
Seniority 3(2):149
Unemployment 1(3):263
 CUMULATIVE INDEX: VOLUMES 1-8 / 83

Fok, Lillian Y.
Discrimination, homosexuals 4(4):319, 5(3):217
Sexual harassment 5(4):289
Frank, James L.
Unions, development 7(4):331
Franklin, Geralyn McClure
Affirmative action 2(1):7, 5(4):267
Sexual harassment 4(1):1
Frierson, James G.
Discrimination, sex 6(3):155
Workers’ compensation 3(1):1
Fries, Jay R.
Americans with Disabilities Act (ADA) 2(2):115
Fuqua, Harold E., Jr.
Empowered employees 6(3):201
Fuqua, Harold, Jr.
Psychological contract 6(3):193, 7(1):33
Fusilier, Marcelline R.
Americans with Disabilities Act (ADA) 6(1):71, 7(4):325

Galle, William P., Jr.

Discrimination, age 4(2):141
Tenure and promotion policy 5(1):53
Gillenwater, Edward L.
Employee participation programs 2(3):199
Gilmore, Carol B.
Free speech 8(1):39, 8(2):105
Goodson, Jane R.
Sexual harassment 2(2):123
Grabow, Bruce A.
Privacy 3(2):101
Gran, Susan R.
Discrimination, religious 3(3):221
Grant, James D.
Unjust dismissal 4(2):111
Greenlaw, Paul S.
Americans with Disabilities Act (ADA) 7(1):1
Griffin, Susan
Occupational therapy 2(1):29, 4(1):41
Gullett, Carlos Ray
Americans with Disabilities Act (ADA) 6(1):71
84 / HAYNES

Haber, Lawrence J.
Arbitration 7(4):281
Drug abuse 6(1):29
Higher education 2(1):73
Hames, David S.
Fraternization 8(1):29
Restrictive covenants 3(4):275
Harter, N.W.
Labor movement history 6(2):141
Hartman, Sandra J.
Discrimination, homosexuals 4(3):173, 4(4):319, 5(3):217
Sexual harassment 5(4):289
Hawley, Donna M.
Electronic mail 6(4):289
Head, Thomas
Computer use 1(4):335
Hecht, Leo
U.S.-Russian enterprises 3(1):49
Henry, Stuart
Just cause 2(3):263
Model Employment Termination Act (META) 1(2):93
Heshizer, Brian
Sexual harassment 7(3):199
Heshizer, Brian P.
Watson v. Fort Worth Bank and Trust Co. 1(1):55
Hurd, Sandra N.
HIV/AIDS 1(3):219
Hyatt, Douglas E.
Reinstatement 1(3):253

Ingraham, Robert E.
Fraternization 3(4):265
Ivri, Kjell
Privacy 1(2):171
Jarmon, Randall
Contract labor 4(2):151

Johnson, J. Douglas
Arbitration 7(4):281
 CUMULATIVE INDEX: VOLUMES 1-8 / 85

Johnson, Les
Americans with Disabilities Act (ADA) 6(3):167
Johnson, Scott
Social security disability benefits 6(1):49
Jones, Charlie C.
Americans with Disabilities Act (ADA) 3(3):209

Karim, Ahmad R.
Arbitration 7(4):281
Drug abuse 6(1):29
Karper, Mark D.
Employee participation programs 4(1):55
Khan, A.
Enterprise bargaining 6(1):15
Khan, A. N.
Enterprise bargaining 4(3):229
Khan, Anwar (Andy) N.
Higher education 1(4):293
Kieler, Bruce W.
HIV/AIDS 3(4):315
Kirk, Delaney J.
Affirmative action 5(4):267
Klaas, Brian S.
Drug testing 8(4):295
Kleiman, Lawrence S.
Unjust dismissal 8(3):193
Knip, Judy
Procedural justice 8(4):307
Koch, Cora S.
Civil Rights Act of 1991 1(4):343
Koen, Clifford M., Jr.
Tenure and promotion policy 5(1):53
Kohler, Peter
Psychological contract 7(1):33
Koller, Elizabeth R.
Sexual harassment 4(2):101
Kovach, Kenneth A.
Gender-bias 2(1):57
Motivation 2(3):209
U.S.-Russian enterprises 3(1):49
Krizner, William T.
Discrimination, sexual preference 8(1):15
86 / HAYNES

Kurtz, Cary R.
Intellectual property 3(3):171

Lacy, George C.
Gilmer v. Interstate/Johnson Lane Corp. 2(4):319
Lacy, Gwynette
Arbitration 2(4):275
Lacy, Gwynette P.
Workforce 2000 2(4):363
Langbert, Mitchell
Employee Retirement Income
Security Act (ERISA) 3(1):65
Lee, Robert D.
Americans with Disabilities Act (ADA) 7(1):1
Lee, Robert D., Jr.
Discrimination, age 8(2):125
Due process 7(3):247
Levine, Marvin J.
Employee participation programs 5(1):71
Smoking 3(2):133
Training programs, union-management 8(1):77
Lewis, Christine W.
Sexual harassment 2(2):123
Lockwood, Frank S.
Drug testing 8(4):295
Loewenberg, J. Joseph
Smoking 2(3):251
Logan, John E.
Drug testing 8(4):295
Lusk, Robert
Wrongful discharge 1(2):135
Luthar, Harsh K.
Benefit programs 6(4):255
Gender-bias 5(3):189
Sexual harassment 4(4):261

Marczely, Bernadette
Arbitration 7(1):49
Free speech 5(1):1
Privacy 3(3):197
Sexual harassment 8(2):95
 CUMULATIVE INDEX: VOLUMES 1-8 / 87

Marczely, David W.
Arbitration 7(1):49
Privacy 3(3):197
Massengill, Douglas
Retaliation 6(2):119
Sexual harassment 5(2):91
Masters, Marick F.
Privacy 2(2):133
McCall, Jane L.
Unions, development 7(4):331
McEvoy, Sharlene A.
Grooming policy 4(1):67
Mischievous behavior 6(2):127
McKissick, Andree Y.
Drug abuse 2(4):327
Mello, Jeffrey A.
HIV/AIDS 3(4):325
Miller, Stephen A.
Employment-at-will 5(2):153
Moghadam, Mashalah Rahnama
Higher education 2(1):73
Mohamed, A. Amin
Civil Rights Act of 1991 4(4):277
Moniak, Stephen
Personnel files 7(1):73
Montoya, Issac D.
Drug testing 7(3):215
Moorman, Amy H.
Smoking 3(3):243
Morelli, Joe
Sexual harassment 5(3):205
Morrisette, H. Shelton
Civil Rights Act of 1991 3(2):91
Moser, Steve
Americans with Disabilities Act (ADA) 6(3):167
Moser, Steven B.
Drug testing 5(2):125
Muhlenkamp, Rhonda
Empowered employees 6(3):201
Munchus, George, III
Employee discharge as a crime 2(2):153
Muthuchidambaram, S.
Genetic testing 2(3):225
88 / HAYNES

Nelson, Nels E.
Employee characteristics 5(3):177
Misconduct 7(4):267
Nelson-Glode, Beverly L.
Agency Shops 1(1):33
Nichols, Dave L.
Discrimination, obesity 4(2):123

Owendorff, Michael
Sexual harassment 7(3):199

Paolillo, Joseph G. P.
Civil Rights Act of 1991 3(2):91
Parker, Joan
Discrimination, employment 8(3):231
Pastille, Catherine
Benefit programs 6(4):255
Payne, Kay
Empowered employees 6(3):201
Psychological contract 6(3):193, 7(1):33
Peirce, Ellen
Model Employment Termination
Act (META) 1(1):19
Pellegrino, Kimberly C.
Sexual harassment 8(1):1
Pellegrino, Robert J.
Sexual harassment 8(1):1
Perritt, Henry H., Jr.
Unjust dismissal 1(3):185
Perry, Sandra J.
Unemployment compensation 7(3):227
Petersen, Donald J.
Criminal activities 5(1):39
Customer complaints 5(4):311
Demotion 7(4):289
Disloyalty, employee 4(3):245
Dress code 6(2):103
Insubordination 1(2):145
Retaliation 6(2):119
Sexual harassment 5(2):91, 7(2):127
Sleeping on the job 3(1):35
 CUMULATIVE INDEX: VOLUMES 1-8 / 89

Pincus, Laura B.
Computer use 1(4):335
Poon, June M. L.
Employee participation programs 5(1):71

Rebne, Douglas
Contract labor 4(2):151
Reed, William P., Jr.
Unions, development 7(4):331
Reithel, Brian J.
Sexual harassment 4(1):1
Richard, Alan J.
Drug testing 7(3):215
Robinson, Robert K.
Affirmative action 2(1):7, 5(4):267
After-acquired evidence 5(1):11
Civil Rights Act of 1991 3(2):91, 4(4):277
Discrimination, obesity 4(2):123
Employee participation programs 2(3):199
Sexual harassment 4(1):1, 5(4):303
Rosen, Benson
Model Employment Termination Act (META) 1(1):19
Rutchow, William S.
Unions, development 7(4):331
Ryesky, Kenneth H.
Public sector employees 7(1):15
Sleep disorders 3(4):285

Samavati, Hedayeh
Higher education 2(1):73
Sandberg, William R.
Drug testing 8(4):295
Schur, Lisa
Seniority rights 7(2):167
Schwoerer, Catherine
Model Employment Termination
Act (META) 1(1):19
Shearer, Robert A.
Sexual harassment 3(1):75
Silberman, Stuart M.
Fair Labor Standards Act (FLSA) 6(1):41
90 / HAYNES

Smith, J. Clay, Jr.

Gilmer v. Interstate/Johnson Lane Corp. 2(4):313
Snyder, David M.
Electronic mail 5(3):235
Springer-Messick, Joanne
Restrictive covenants 8(2):143
Squire, Madelyn C.
Arbitration 2(4):275
St. Antoine, Theodore J.
Employment rights 1(1):1
Staudohar, P. D.
Labor-management cooperation 4(1):31
Staudohar, Paul D.
Football labor relations 7(2):91
HIV/AIDS 3(4):315
Labor movement history 1(1):7
Steensma, Herman
Procedural justice 8(4):307
Strongin, Andrew M.
Gilmer v. Interstate/Johnson Lane Corp. 2(4):283
Strongin, Seymour
Gilmer v. Interstate/Johnson Lane Corp. 2(4):283

Taya, J.
Enterprise bargaining 4(3):229, 6(1):15
Terpstra, David E.
Employee participation programs 2(3):199
Thiemann, Alan J.
Psychological testing 1(4):351
Thornicroft, Kenneth Wm.
Wrongful discharge 1(4):273
Tongren, Hale N.
U.S.-Russian enterprises 3(1):49
Travaglione, A.
Enterprise bargaining 4(3):229, 6(1):15
Trevino, Roberto A.
Drug testing 7(3):215

Uddin, A. N. M. Meshquat
Employee characteristics 5(3):177
Misconduct 7(4):267
 CUMULATIVE INDEX: VOLUMES 1-8 / 91

Varano, Rob
Covenants not to compete 6(3):219

Wagar, Terry H.
Grievance procedure 5(4):325
Legal representation 4(3):217
Unjust dismissal 4(2):111
Wagner, Edwin M.
Discrimination, homosexuals 1(2):115
Wasserman, Lewis M.
Teachers 7(3):241
Watkins, Frank
Employee discharge as a crime 2(2):153
Weisel, Martha S.
Arbitration 1(4):323
Wesman, Elizabeth C.
HIV/AIDS 1(3):219
Williams, John G.
Americans with Disabilities Act (ADA) 7(4):325
Wright, J. W., Jr.
Discrimination, national origin 7(4):307
Wyld, David C.
Attention deficit disorder 5(1):19
Discrimination, national origin 4(4):303
Religious freedom 5(4):255

Zigarelli, Michael A.
Internet access policy 6(3):179
* * *
Theodora T. Haynes is Associate Professor in the Paul Robeson Library of
Rutgers University at Camden, New Jersey. She has an M.L.S. and an M.B.A. from
Rutgers University.

Direct reprint requests to:

Theodora T. Haynes
Associate Professor
Paul Robeson Library
Rutgers University
Camden, NJ 08102