Appellant
Marya S. Norman-Bloodsaw, Vertis B. Ellis, and six other individuals
Appellee
Lawrence Berkeley Laboratory, Regents of the University of California, U.S. Department of Energy, and others
Appellant's Claim
That a public employer conducting medical tests on its employees to determineintimate medical conditions without their knowledge or consent violates theemployees' constitutional right to privacy.
Chief Lawyer for Appellant
William C. McNeill III
Chief Lawyer for Appellee
Douglas H. Barton
Justices for the Court
Stephen Reinhardt (writing for the court), Thomas G. Nelson, Michael Daly Hawkins
Justices Dissenting
None
Place
San Francisco, California
Date of Decision
3 February 1998
Decision
The appeals court reversed a district court's ruling by finding the secret medical tests violated Title VII of the 1964 Civil Rights Act and state and federal constitutional privacy guarantees.
Significance
The ruling created a significant legal precedent protecting employees or jobapplicants from medical testing without their prior knowledge and approval. In an era of rising health care costs and insurance liabilities, more employers sought means for reducing their financial risks. The court reasserted an individual's right to privacy and freedom from discrimination based on a person's medical condition that may have no bearing on their ability to perform thework. Concerns over the privacy of genetic information led a dozen states topass legislation prohibiting genetic discrimination in the workplace.
Developments in the late twentieth century in genetics, including genetic screening, and electronic data keeping introduced substantial new legal questions. Genetic screening is the examination of a person's genetic makeup to determine their tendency to acquire or carry certain diseases. Such screening first began to attract significant state and federal legislative action in the seventies. The Genetic Diseases Act of 1976 allowed for use of public funds tosupport voluntary genetic screening programs. States passed laws requiring the screening of school children for sickle cell anemia as well as voluntary premarital testing. Concerns mounted that genetic screening could lead to discrimination as certain genetic diseases were more prevalent in some ethnic groups than others, as well as gender differences. For this reason, many believedany form of compulsory testing would violate the search and seizure clause of the Fourth Amendment and the 1964 Civil Rights Act among other legal concerns. Supporters of the use of screening claimed legitimate state interests were involved in promoting quality of life of its citizens and minimizing drainson public funds.
Medical Secrecy in California
The Ernest Orlando Lawrence Berkeley National Laboratory is the oldest national research laboratory in the United States. Operated by the University of California in coordination with the U.S. Department of Energy, the Laboratory conducted unclassified research on human genetic makeup, breast cancer, astrophysics, and nuclear science, among other subjects. For years hundreds of employees gave blood samples as part of routine tests for hiring and subsequentlyduring employment. One such employee, Vertis Ellis, worked as an administrative assistant for Lawrence.
Late in 1994, Ellis opened the large envelope containing her medical recordsfrom work. Inside she found indications that the laboratory had conducted syphilis tests on her without her knowledge on several occasions during companyexams over the previous 29 years. Upon inquiry to Lawrence, laboratory officials acknowledged testing the blood and urine samples of its employees for syphilis, the sickle cell trait, and pregnancy under the guidance and approval of the U.S. Department of Energy but claimed most such testing had ceased. Neither Ellis nor others had either given authorization for such tests or received results.
In September of 1995, Marya S. Norman-Bloodsaw, Ellis, and six other employees filed a class action suit in district court on behalf of all past and present Lawrence employees subjected to such medical tests. Among those named in the suit were the laboratory, the Secretary of the U.S. Department of Energy,and the Regents of the University of California. The employees claimed that the testing of their blood and urine samples for syphilis, sickle cell trait,and pregnancy occurred without their knowledge or consent, and without any later notification that the tests had been conducted. The employees alleged several legal violations by Lawrence. First, they charged that Lawrence failed to provide adequate safeguards to protect the test results from being known toothers. Secondly, that only black employees were tested for sickle cell trait and only female employees tested for pregnancy violated Title VII of the Civil Rights Act of 1964. Thirdly, the employees argued the testing violated the American with Disabilities Act (ADA) since the tests were neither job-related nor consistent with a business need. Most important constitutionally, thetesting, collecting and maintaining the results of the testing, and failing to provide adequate safeguards against disclosure of the results violated their right to privacy under the federal and California constitutions.
In September of 1996, the district court in San Francisco ruled the statute of limitations negated all claims. The court also disagreed with the employees' arguments on their merits, including the lack of demonstration of harm under Title VII. Although the government had failed to identify any "undisputed legitimate governmental purpose" for the three tests, any intrusions resultingfrom the testing were only minimal. This finding was based on strong similarity between the subjects covered by the medical questionnaire and the three tests, and comparison to the "overall intrusiveness" of "a full-scale physicalexamination." The federal district judge found that the employees had no proof of any connection between the discontinued secret tests and their employment conditions, either in the past or future.
In dismissing the case, Judge Vaughn Walker concluded, "The three tests in question were administered as part of a comprehensive medical examination to which plaintiffs had consented." The employees next appealed to the U.S. Courtof Appeals for the Ninth Circuit in San Francisco.
A Right to Personal Privacy
In reviewing the case, the appeals court considered the statute of limitations issue first. The district court had ruled that the limitations period beganat the time the blood and urine samples were taken. However, Judge Stephen Reinhardt, writing for the court, asserted that the general federal rule for initiating limitation periods was based on when an individual becomes aware ofan injury. Reinhardt disagreed with the district court's finding that the employees had reason to know of the actual nature of the medical tests simply by submitting to the examinations. Reinhardt reversed the district court's limitations finding.
Reinhardt then examined the issue of due process right to privacy under the U.S. Constitution. Reinhardt applied the "balancing test" to the facts of thecase. He balanced the government's interest in conducting these particular tests against the employees' expectations of privacy. Reinhardt found no statecompelling interests in tests which had little bearing on a person's abilityto perform the work. Reinhardt also observed that the privacy interest in avoiding disclosure of personal information clearly included confidentiality ofa person's medical record. Thus, Reinhardt reversed the district court decision to dismiss the claims on the ground that any privacy violation was minimal. Reinhardt held the tests were indeed search violations of the Fourth Amendment.
Reinhardt also examined the right to privacy issue under Article I of the California Constitution. Three elements must be established to bring a case under the California Constitution. These elements are presence of a legally protected privacy interest, a reasonable expectation of privacy by the individualunder the circumstances, and conduct by the defendant amounting to a "seriousinvasion " of the protected privacy. The district court had previously ruledemployees "could not proceed" with this allegation because of "undisputed facts" that the employees had completed a medical questionnaire at the time ofthe exam, consented to the pre-placement examination, and voluntarily given of blood and urine samples. Reinhardt ruled that the district court undervalued the seriousness of the tests and hence erred in dismissing the state constitutional privacy claim.
Reinhardt then considered the allegation of a Title VII violation of the Civil Rights Act of 1964. Reinhardt wrote that Title VII prohibits discriminationnot only in the "terms" and "conditions" of ongoing employment, but also inthe "terms" and "conditions" under which individuals may obtain employment. In this case, the laboratory required black employees to unknowingly undergo atest for the sickle cell trait and for women, to unknowingly undergo a pregnancy test. Reinhardt found that the employment of women and blacks at Lawrence Berkeley Laboratory was conditioned on unconstitutional invasions of privacy to which others were not subjected a violation of Title VII on the basis ofrace and sex discrimination.
On one point Reinhardt did agree with the district court. Reinhardt ruled that only those medical examinations occurring "on or after January 26, 1992," could potentially be violating the Americans with Disabilities Act (ADA). On that date the ADA had become applicable to public entities. Only two employeesinvolved in the case had undergone testing after that date. Reinhardt held that the Americans with Disabilities Act did not limit the scope of such examinations to matters that are "job-related and consistent with business necessity." Therefore, dismissal of the ADA claims were proper.
Though Lawrence contended the case was moot because the issues involved wereno longer occurring and the employees lacked any further interest in the tests outcome. Reinhardt asserted that mere voluntary discontinuation of allegedly illegal activity could not moot a case. Lawrence had even stated it might resume testing for intimate medical conditions at some time though not offering a reason why. Reinhardt concluded that a reasonable possibility existed that Lawrence would again conduct undisclosed medical testing of its employees for intimate medical conditions. Reinhardt granted an injunctive relief to theemployees.
Impact
The ruling reinstated the Lawrence employees' case to proceed with their discrimination claims. The employees sought to require the laboratory to notify all persons that were tested, destroy the test results, and provide explanations of how the medical information was used. The U.S. Department of Energy soon after the decision changed its policies requiring that clear communicationoccur with all employees concerning the nature of medical exams used and their results.
The Norman-Bloodsaw decision ventured into a new area of law by recognizing a constitutional right to genetic privacy in the workplace. Previous cases defining the privacy interest in medical information had typically involved disclosures to "third" parties. However, this case dealt with the collection of information by unlawful means. An employer could not conduct tests forgenetic information on its employees without their consent. The court indicated that some types of medical information were more private than others and that genetic information should be treated differently from other forms of medical information. The ruling also broadened the concept of harm to the employee that was necessary to attain legal standing to file a lawsuit. The "stigmatizing" of the workplace through violation of an employees' constitutional rights was sufficient harm in itself. Previous rulings had focused on unauthorized release of such information to third parties.
Many feared genetic testing was increasingly becoming a condition of employment in corporate America. Interest in reducing health costs of the companies and illness-related absenteeism were the common objectives. By late 1998, denial of employment to individuals with certain genetic traits was legal in allbut 12 states. Federal legislation prohibiting such genetic discrimination was stalled in Congress. Meanwhile, as the 20th century came to a close, the project to decode the human genetic structure neared completion. Genetic testing would be that much more informative. Fears mounted that widespread availability of personal genetic information would lead to insurance coverage and creditor issues. Organizations including the Council for Responsible Genetics and the National Breast Cancer Coalition increased their vigilance.
Related Cases
Marya S. Norman-Bloodsaw, Vertis B. Ellis, and six other individuals
Appellee
Lawrence Berkeley Laboratory, Regents of the University of California, U.S. Department of Energy, and others
Appellant's Claim
That a public employer conducting medical tests on its employees to determineintimate medical conditions without their knowledge or consent violates theemployees' constitutional right to privacy.
Chief Lawyer for Appellant
William C. McNeill III
Chief Lawyer for Appellee
Douglas H. Barton
Justices for the Court
Stephen Reinhardt (writing for the court), Thomas G. Nelson, Michael Daly Hawkins
Justices Dissenting
None
Place
San Francisco, California
Date of Decision
3 February 1998
Decision
The appeals court reversed a district court's ruling by finding the secret medical tests violated Title VII of the 1964 Civil Rights Act and state and federal constitutional privacy guarantees.
Significance
The ruling created a significant legal precedent protecting employees or jobapplicants from medical testing without their prior knowledge and approval. In an era of rising health care costs and insurance liabilities, more employers sought means for reducing their financial risks. The court reasserted an individual's right to privacy and freedom from discrimination based on a person's medical condition that may have no bearing on their ability to perform thework. Concerns over the privacy of genetic information led a dozen states topass legislation prohibiting genetic discrimination in the workplace.
Developments in the late twentieth century in genetics, including genetic screening, and electronic data keeping introduced substantial new legal questions. Genetic screening is the examination of a person's genetic makeup to determine their tendency to acquire or carry certain diseases. Such screening first began to attract significant state and federal legislative action in the seventies. The Genetic Diseases Act of 1976 allowed for use of public funds tosupport voluntary genetic screening programs. States passed laws requiring the screening of school children for sickle cell anemia as well as voluntary premarital testing. Concerns mounted that genetic screening could lead to discrimination as certain genetic diseases were more prevalent in some ethnic groups than others, as well as gender differences. For this reason, many believedany form of compulsory testing would violate the search and seizure clause of the Fourth Amendment and the 1964 Civil Rights Act among other legal concerns. Supporters of the use of screening claimed legitimate state interests were involved in promoting quality of life of its citizens and minimizing drainson public funds.
Medical Secrecy in California
The Ernest Orlando Lawrence Berkeley National Laboratory is the oldest national research laboratory in the United States. Operated by the University of California in coordination with the U.S. Department of Energy, the Laboratory conducted unclassified research on human genetic makeup, breast cancer, astrophysics, and nuclear science, among other subjects. For years hundreds of employees gave blood samples as part of routine tests for hiring and subsequentlyduring employment. One such employee, Vertis Ellis, worked as an administrative assistant for Lawrence.
Late in 1994, Ellis opened the large envelope containing her medical recordsfrom work. Inside she found indications that the laboratory had conducted syphilis tests on her without her knowledge on several occasions during companyexams over the previous 29 years. Upon inquiry to Lawrence, laboratory officials acknowledged testing the blood and urine samples of its employees for syphilis, the sickle cell trait, and pregnancy under the guidance and approval of the U.S. Department of Energy but claimed most such testing had ceased. Neither Ellis nor others had either given authorization for such tests or received results.
In September of 1995, Marya S. Norman-Bloodsaw, Ellis, and six other employees filed a class action suit in district court on behalf of all past and present Lawrence employees subjected to such medical tests. Among those named in the suit were the laboratory, the Secretary of the U.S. Department of Energy,and the Regents of the University of California. The employees claimed that the testing of their blood and urine samples for syphilis, sickle cell trait,and pregnancy occurred without their knowledge or consent, and without any later notification that the tests had been conducted. The employees alleged several legal violations by Lawrence. First, they charged that Lawrence failed to provide adequate safeguards to protect the test results from being known toothers. Secondly, that only black employees were tested for sickle cell trait and only female employees tested for pregnancy violated Title VII of the Civil Rights Act of 1964. Thirdly, the employees argued the testing violated the American with Disabilities Act (ADA) since the tests were neither job-related nor consistent with a business need. Most important constitutionally, thetesting, collecting and maintaining the results of the testing, and failing to provide adequate safeguards against disclosure of the results violated their right to privacy under the federal and California constitutions.
In September of 1996, the district court in San Francisco ruled the statute of limitations negated all claims. The court also disagreed with the employees' arguments on their merits, including the lack of demonstration of harm under Title VII. Although the government had failed to identify any "undisputed legitimate governmental purpose" for the three tests, any intrusions resultingfrom the testing were only minimal. This finding was based on strong similarity between the subjects covered by the medical questionnaire and the three tests, and comparison to the "overall intrusiveness" of "a full-scale physicalexamination." The federal district judge found that the employees had no proof of any connection between the discontinued secret tests and their employment conditions, either in the past or future.
In dismissing the case, Judge Vaughn Walker concluded, "The three tests in question were administered as part of a comprehensive medical examination to which plaintiffs had consented." The employees next appealed to the U.S. Courtof Appeals for the Ninth Circuit in San Francisco.
A Right to Personal Privacy
In reviewing the case, the appeals court considered the statute of limitations issue first. The district court had ruled that the limitations period beganat the time the blood and urine samples were taken. However, Judge Stephen Reinhardt, writing for the court, asserted that the general federal rule for initiating limitation periods was based on when an individual becomes aware ofan injury. Reinhardt disagreed with the district court's finding that the employees had reason to know of the actual nature of the medical tests simply by submitting to the examinations. Reinhardt reversed the district court's limitations finding.
Reinhardt then examined the issue of due process right to privacy under the U.S. Constitution. Reinhardt applied the "balancing test" to the facts of thecase. He balanced the government's interest in conducting these particular tests against the employees' expectations of privacy. Reinhardt found no statecompelling interests in tests which had little bearing on a person's abilityto perform the work. Reinhardt also observed that the privacy interest in avoiding disclosure of personal information clearly included confidentiality ofa person's medical record. Thus, Reinhardt reversed the district court decision to dismiss the claims on the ground that any privacy violation was minimal. Reinhardt held the tests were indeed search violations of the Fourth Amendment.
Reinhardt also examined the right to privacy issue under Article I of the California Constitution. Three elements must be established to bring a case under the California Constitution. These elements are presence of a legally protected privacy interest, a reasonable expectation of privacy by the individualunder the circumstances, and conduct by the defendant amounting to a "seriousinvasion " of the protected privacy. The district court had previously ruledemployees "could not proceed" with this allegation because of "undisputed facts" that the employees had completed a medical questionnaire at the time ofthe exam, consented to the pre-placement examination, and voluntarily given of blood and urine samples. Reinhardt ruled that the district court undervalued the seriousness of the tests and hence erred in dismissing the state constitutional privacy claim.
Reinhardt then considered the allegation of a Title VII violation of the Civil Rights Act of 1964. Reinhardt wrote that Title VII prohibits discriminationnot only in the "terms" and "conditions" of ongoing employment, but also inthe "terms" and "conditions" under which individuals may obtain employment. In this case, the laboratory required black employees to unknowingly undergo atest for the sickle cell trait and for women, to unknowingly undergo a pregnancy test. Reinhardt found that the employment of women and blacks at Lawrence Berkeley Laboratory was conditioned on unconstitutional invasions of privacy to which others were not subjected a violation of Title VII on the basis ofrace and sex discrimination.
On one point Reinhardt did agree with the district court. Reinhardt ruled that only those medical examinations occurring "on or after January 26, 1992," could potentially be violating the Americans with Disabilities Act (ADA). On that date the ADA had become applicable to public entities. Only two employeesinvolved in the case had undergone testing after that date. Reinhardt held that the Americans with Disabilities Act did not limit the scope of such examinations to matters that are "job-related and consistent with business necessity." Therefore, dismissal of the ADA claims were proper.
Though Lawrence contended the case was moot because the issues involved wereno longer occurring and the employees lacked any further interest in the tests outcome. Reinhardt asserted that mere voluntary discontinuation of allegedly illegal activity could not moot a case. Lawrence had even stated it might resume testing for intimate medical conditions at some time though not offering a reason why. Reinhardt concluded that a reasonable possibility existed that Lawrence would again conduct undisclosed medical testing of its employees for intimate medical conditions. Reinhardt granted an injunctive relief to theemployees.
Impact
The ruling reinstated the Lawrence employees' case to proceed with their discrimination claims. The employees sought to require the laboratory to notify all persons that were tested, destroy the test results, and provide explanations of how the medical information was used. The U.S. Department of Energy soon after the decision changed its policies requiring that clear communicationoccur with all employees concerning the nature of medical exams used and their results.
The Norman-Bloodsaw decision ventured into a new area of law by recognizing a constitutional right to genetic privacy in the workplace. Previous cases defining the privacy interest in medical information had typically involved disclosures to "third" parties. However, this case dealt with the collection of information by unlawful means. An employer could not conduct tests forgenetic information on its employees without their consent. The court indicated that some types of medical information were more private than others and that genetic information should be treated differently from other forms of medical information. The ruling also broadened the concept of harm to the employee that was necessary to attain legal standing to file a lawsuit. The "stigmatizing" of the workplace through violation of an employees' constitutional rights was sufficient harm in itself. Previous rulings had focused on unauthorized release of such information to third parties.
Many feared genetic testing was increasingly becoming a condition of employment in corporate America. Interest in reducing health costs of the companies and illness-related absenteeism were the common objectives. By late 1998, denial of employment to individuals with certain genetic traits was legal in allbut 12 states. Federal legislation prohibiting such genetic discrimination was stalled in Congress. Meanwhile, as the 20th century came to a close, the project to decode the human genetic structure neared completion. Genetic testing would be that much more informative. Fears mounted that widespread availability of personal genetic information would lead to insurance coverage and creditor issues. Organizations including the Council for Responsible Genetics and the National Breast Cancer Coalition increased their vigilance.
Related Cases
- Schowengerdt v. General Dynamics Corp., 823 F.2d 1328 (9th Cir. 1987).
- Yin v. California, 95 F.3d 864 (9th Cir. 1996).
- Loder v. City of Glendale, 927 P.2d 1200 (Cal 1997).
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