LIABILITY & LEGAL ASPECTS (Lesson 21 of 28)
“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.” (Rest.2d, Torts §625B.)
It is unlawful to eavesdrop by means of a listening device on a private communication. (Penal Code Section 630) Furthermore, it is unlawful to record a private communication without consent. (Penal Code Section 632) “Private communication” and “expectation of privacy” are open to interpretation. For example, if a person is in a public place such as the public area of a store, the individual may not have an expectation of privacy. However, if the person is in an office, there may be an expectation of privacy and the communication cannot be recorded. It is unlawful to record a telephone conversation without consent.
Furthermore, it is unlawful to videotape an individual when there is an expectation of privacy. Obviously, there is an expectation of privacy in a changing room or restroom. However, in a public area, there is no expectation of privacy.
Security officers must be aware that their actions could lead to a sexual harassment lawsuit. Sexual harassment is another intentional tort giving rise to liability on the part of both the officer and the employer. There are many forms of sexual harassment. The basics of this expansive topic involve unwelcome sexual conduct, hostile work environment, and retaliation.
A supervisor is prohibited from forcing a subordinate to tolerate “unwelcome sexual conduct.” This results in strict liability. The corporation is liable regardless of whether or not the corporation had knowledge of the supervisor’s conduct.
Hostile work environment is another area the individual officer or the company may be susceptible to a sexual harassment action. A hostile work environment exists when unwelcome sexual conduct interferes with an employee’s job performance by creating an intimidating, hostile, or offensive work environment. Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 106 S. Ct. 2399.
Also, under Title VII a cause of action exists for discharges or other forms of retaliation which result from employee complaints about sexual harassment. Courts have been known to respond severely to retaliatory behavior. Victims of retaliatory behavior include relatives, friends, witnesses, and even victims of the sexual harassment itself.
All standards turn on “Unwelcome” Conduct [EEOC Compliance Manual (1990), §615; Henson v. City of Dundee (11th Cir.1982) 682 F.2d 897, 903]. Two standards that may be utilized to determine if the conduct was “unwelcome” are the “Reasonable Woman Standard” and the “Reasonable Fatherhood Standard.” The alleged conduct is viewed through the eyes of the “average reasonable woman,” or through the eyes of the “reasonable father.” If your wife or child, or for that matter your husband, came home with a story regarding how they were treated at work, how would you react? If you find the conduct offensive or upsetting, then it likely qualifies as actionable sexual harassment.