Information Technology – Legal Issues
INFORMATION TECHNOLOGY LAW
Age Discrimination and Employment Act:
Age discrimination legislation in the United States includes the Age Discrimination in Employment Act of 1967 (ADEA), the Age Discrimination Act of 1975, and Section 188 of the Workforce Investment Act of 1998 (Halbert & Ingulli p.41).
Collectively, they prohibit age-based employment discrimination in hiring, promotional eligibility, and other privileges of employment in industries and ventures funded by the federal government.
Specifically, age discrimination legislation protects individuals aged 40 and older from discrimination preventing them from equal opportunities to work and receive employment benefits based on their age (USDOL 2008).. In principle, age discrimination protections do not relate directly to record information management functions, except to the extent that ordinary business records and communications often form the basis of proof in cases of alleged discrimination as well as the basis of defenses to those causes of actions and discoverable in legal disputes where they are subpoenaed as evidence.
In general, the basis of modern age discrimination legislation in the U.S. was originally prompted by gradual changes in lifespan and productivity in later years of life made possible by improved longevity and health in industrialized society (Henslin p.263). In the latter part of the 20th century, longevity increased dramatically, as did the health of older people and the American Association of retired persons (AARP) became one of the most powerful political lobbyists in Washington. Consequently, the passage of age discrimination law enjoyed considerable political support throughout the country with little opposition. In the United States, age discrimination is a matter of civil law and remedies are generally awarded in the form of compensatory monetary damages, lost wages, and reinstatement of employment benefits (Halbert & Ingulli p.41).
Age discrimination legislation addresses three primary types of age-related employment discrimination. In 2000, the U.S. Supreme Court prohibited purposeful discrimination by treating older employees differently in Reeves v. Sanderson, but two federal district courts have ruled differently on the matter of prohibiting employment and hiring practices that discriminate on the basis of age where the discrimination is not purposeful in its intention but only discriminatory in its effects (Friedman pp.594-6).
In 1996, the 6th Federal Circuit Court added age-based harassment as the basis for age discrimination lawsuits in the same manner that other protected classes like race and gender are protected from hostile work environments. The U.S. Supreme Court has not yet addressed this issue which is currently determined by state law and differs from state to state.
Form an ethical point-of-view, age discrimination is fundamentally wrong because the only legitimate basis for age-based employment considerations are those where advanced age directly affects the ability of an individual to perform the tasks associated with the position. Unless thee are specific physical elements of the job that make employment unsuitable for older individuals, discrimination against older workers is as unjustified as discrimination against individuals based on race or gender.
Possible examples of particular types of employment where age-based limitations may be appropriate would include law enforcement positions and certain other industries where deterioration in skills is age-specific, especially where reduced performance may expose the worker or others to danger.
Electronic Communications Privacy Act (ECPA):
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 prohibits unauthorized interception or recording of private telephone conversations and other types of private communications. In 1986, the U.S. Congress amended the earlier legislation to include the interception of electronic transmissions sent by computers, such as e-mails (Halbert & Ingulli p.77).
Electronic privacy law applies to employment and business records and information management in the workplace, with different rights and regulations depending on the specific communications medium involved. Generally, employee privacy rights to e-mail systems and telephone message recording and retrieval systems are determined by the employment contract or by the employment policies of the employer and are not subject to legal disputes initiated by employees ((Halbert & Ingulli p.78-80). The only exception giving employees privacy rights to communications is that (live) telephone conversations may not be intercepted or recorded without the permission of at least one person participating in the conversation by federal law. However, state law determines whether employers may record conversations in which they participate.
Approximately half the states allow any person in a conversation to record a telephone call without the knowledge or consent of the other person on the line; the other half require the consent of all parties to the conversation. Unlawful interception of protected communications is a federal criminal offense and may also expose the violator to civil penalties for invasion of privacy as well. The important distinction between live oral conversations and recorded communications applies at work because employees are not considered to have any such privacy rights in message retreival systems or e-mail systems provided by the employer (Halbert & Ingulli p.81). In ordinary (private) life, interception of recorded messages and e-mail transmissions or stored computer information is a federal criminal offense.
The 1996 case Smyth v. Pillsbury illustrates the general rule that employees do not have any resaonable expectation of privacy in their e-mail communications (Halbert & Ingulli p.78-9). In that case, the plaintiff was fired for personal e-mails to another employee that the company reviewed and considered unprofessional. Public employees at the municipal, state, and federal level have even fewer privacy rights, because their communications are potentially available to the public through the Freedom of Information Act (FOIA) of 1966, which also requires public employers to comply with strict rules of preserving business records and communications.
Ethically, many people do object to the right of employers to review what employees consider to be private communications, but the fact is that employers have both a legal right as well as justification in knowing how their employees spend their time at work and how they use the employer’s equipment. In fact, most businesses do monitor employee communications (Halbert & Ingulli p.82). To the extent allowed by law and many include a specific notice warning employees of this in their employment contracts, as well as in their policies and procedures manuals, and very often, on computer sign-on screens. Employers are not legally required to provide such notices, but many choose to do so to discourage lawsuits which may result in legal costs even where the employee is unsuccessful. In general, the privacy rights of employees are limited to personal changing areas and to their personal belongings and cellular phones.
References
Equal Employment Opportunity: Age Discrimination. United States Department of Labor website retrieved February 5, 2008, at http://www.dol.gov/dol/topic/discrimination/agedisc.htm
Friedman, L.M. (2005)
History of American Law.
New York: Simon & Schuster
Halbert, T., Ingulli, E. (2000) Law & Ethics in the Business Environment. Cincinnati: West-Thomson Publishing
Henslin, J.M. (2002) Essentials of Sociology: A Down-to-Earth Approach. Boston: Allyn & Bacon
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