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State Common Law

The state common law of torts generally recognizes three discrete rights of privacy that are regularly asserted during employment litigation. First, the common law affords individuals the right to sue when their seclusion or solitude has been intruded upon in an unreasonable and highly offensive manner. Second, individuals have a common law right to sue when information concerning their private life is disclosed to the public in an extremely objectionable fashion. Third, tort liability may be imposed on individuals or entities who publicize information that places someone in a false light.

A valid cause of action for invasion of privacy will not arise for any of these common law torts unless the employer’s intrusion is so outrageous or pervasive as to offend the sensibilities of the average, reasonable person. Merely calling an employee at home, for example, will not give rise to a claim for invasion of privacy, unless the employer making the calls is doing so in a persistent and extremely offensive manner. Johns v. Ridley, 245 Ga.App. 710, 537 S.E.2d 746 (Ga.App. 2000). However, a claim for invasion of privacy may be supported by the allegations of female employees who claim that their supervisor has poked holes in the ceiling to watch them disrobe in the women’s restroom. Benitez v. KFC Nat. Management Co., 305 Ill.App.3d 1027, 714 N.E.2d 1002, 239Ill.Dec. 705 (Ill.App. 2 Dist. 1999).

At the same time, an employer who merely reveals an employee’s credit problems to co-workers may not be held liable for invasion of privacy. Dietz v. Finlay Fine Jewelry Corp., 754 N.E.2d 958 (Ind.App. 2001). Nor may an employer be held liable for common law invasion of privacy by circulating a sexually suggestive photograph of a male employee, if the photograph accurately depicts the employee in a place open to the public. Branham v. Celadon Trucking Services, Inc., 744 N.E.2d 514 (Ind.App. 2001). Similarly, an employer does not invade an employee’s privacy during an office meeting by suggesting that the employee stole from the employer, if the employer’s suggestion is made during an investigation of office thefts and the employee’s possible role in them. Zielinski v. Clorox Co., 215 Ga.App. 97, 450 S.E.2d 222. (Ga.App. 1994)

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