Good Ideas That Never Got off the Ground

As public awareness of the surveillance possibilities of new electronic technology has grown, Congress has at least considered adopting some legislation to protect employee privacy. These proposals, however, have faced uphill sledding since the Republican Party won control of the House of Representatives in 1994. And over the last year, the focus on foreign relations has pushed virtually all domestic legislation onto the back burner.

What's most instructive about these failed pieces of legislation is not so much the specifics of their provisions (although they contained some valuable ideas) as the sheer ferocity with which they were opposed. Shortly after each bill was introduced, a broad coalition of business interests (and to some degree, conservative groups) descended on them like white blood cells on a virus, and consigned each to a slow but certain death by committee.

The Privacy for Consumers and Workers Act

On February 27, 1991, the late Senator Paul Simon (Illinois) and Representative Pat Williams (Montana) introduced the Privacy for Consumers and Workers Act (PCWA). Under the terms of the bill, employers would have been required to:

• Clearly define their privacy policies.

• Notify prospective employees of electronic monitoring that might affect them.

• Limit surveillance to ensuring job performance.

• Refrain from monitoring personal communications.

• Give employees access to any data about them collected during surveillance.

• Refrain from video monitoring in locker rooms or bathrooms (unless there were specific suspicions of illegal conduct).

• Notify workers when telephone monitoring was taking place (except when the monitoring was being done for quality control).

The bill failed to gain traction during the 102nd Congress and was reintroduced in 1993. Once again, the bill's supporters were unsuccessful in their efforts to get it out of committee.

Opposing the legislation was a wide variety of business organizations ranging from Household Finance Corp. to Associated Builders and Contractors, which worried that the legislation would limit the ability to videotape striking workers. Larry Fineran, an assistant vice president for the National Association of Manufacturers, testified before Congress in 1991 that "random and periodic silent monitoring is a very important management tool." He also stated that the PCWA would interfere "with the ability of modern and future equipment that can assist domestic companies in their fight to remain competitive ... otherwise the United States may as well let the information age pass it by."

Fineran also came up with the novel "stage fright" objection to providing employees with notice of surveillance. He argued that employees can function better when they don't know that they're being observed, and that it's actually more stressful when they're told that they are being watched.

Insurance organizations, including the American Insurance Society and the Risk and Insurance Management Society, also lobbied heavily against the bill because of their concern that it would limit their ability to conduct surveillance to prevent workman's compensation fraud. Along with assorted finance companies, insurance companies backed up their testimony with $23 million worth of campaign contributions in 1996 to candidates sympathetic to their position on privacy issues. ^[14]

The Notice of Electronic Monitoring Act

What would have been, essentially, a narrower and simpler version of the PCWA was introduced on July 20, 2000, by Senator Charles Schumer (New York). Known as the Notice of Electronic Monitoring Act (NEMA), the bill would have subjected employers to civil liability if the employer:

... intentionally, by any electronic means, reads, listens to, or otherwise monitors any wire communication, oral communication, or electronic communication of an employee of the employer, or otherwise monitors the computer usage of an employee of the employer, without first having provided the employee notice ....

Under the terms of the law, the employer would be required to tell employees the type of monitoring that would take place, the means of monitoring that would be used, the information that would be gathered (including whether any non-work-related information would be collected), the frequency with which the monitoring would occur, and how the information would be used.

The law contained one exception: An employer could engage in electronic monitoring without notice if the employer had reasonable grounds to believe that the employee was engaged in illegal or dangerous activity, and that the electronic surveillance would produce evidence of the undesirable conduct. If an employer violated NEMA, then the affected employee could sue for actual and punitive damages, attorney fees, and litigation costs.

Like its predecessor, NEMA never made it to the floor of the Senate for a vote. The bill was also introduced in the House of Representatives by Representative Charles Canady (Florida), but it met an even less enthusiastic response. It has not been reintroduced.

The Employment Nondiscrimination Act

Few sectors of the population are more worried about the potential consequences of employer surveillance and invasion of privacy than gays and lesbians. Although large numbers of corporations have adopted nondiscrimination policies, workers who admit that they are gay are reported to earn between 11 percent and 27 percent less than their heterosexual coworkers, which is just one of the reasons that many gay and lesbian employees choose to remain in the closet. Other motivations for silence include the risk of harassment, loss of promotion, and/or termination.

As we saw in Chapter 2, some employers were using lie detector tests in the early 1960s in an effort to determine whether job applicants might be homosexual. The general problem still exists: When Delta Airlines took over Pan American World Airway's European flight routes in 1991, reports surfaced that Delta had hired Equifax to conduct extensive background checks on thousands of Pan Am employees who applied for jobs with Delta. Applicants were required to sign forms consenting to the background checks, including interviews with friends and coworkers. Among the information sought was the sexual orientation of the applicants. ^[15]

The first efforts to pass nondiscrimination legislation for gays and lesbians was introduced in the 1970s, but received little support. Two decades later, in June 1994, Senator Edward Kennedy (Massachusetts) and Representative Gerry Studds (Massachusetts) introduced the Employment Non-discrimination Act of 1994 (ENDA). Hearings were held by the Senate Committee on Labor and Human Resources, but the bill never made it to the floor of the Senate. In 1996, supporters tried to attach the Act as an amendment to the Defense of Marriage Act. As a compromise, supporters of the Defense of Marriage Act agreed to allow ENDA to come to the floor of the Senate for a separate vote. It was defeated by a single vote, fifty to forty-nine.

ENDA was reintroduced in the Senate in June 1997 by Senator James Jeffords (Vermont), and again, hearings were held by the Senate Committee on Labor and Human Resources. In his introduction to the bill, Senator Jeffords articulated the need for the legislation:

By extending to sexual orientation the same Federal employment discrimination protections established for race, religion, gender, national origin, age, and disability, this legislation will further ensure that principals of equality and opportunity apply to all Americans.

.... People who work hard and perform well should not be kept from leading productive and responsible lives because of an irrational, nonwork-related prejudice. Unfortunately, many responsible and productive members of our society face discrimination in their workplaces based on nothing more than their sexual orientation. ^[16]

ENDA has been reintroduced in each of the last two Congresses—by Senator Jeffords in 1999, and by Senator Kennedy in 2001. Over the course of the last decade, the scope of the law has been narrowed considerably. While it would still prohibit discrimination on the basis of sexual orientation, it also contains a number of explicit statements about what it does not do:

• The law would not mandate benefits for domestic partners.

• It would bar the Equal Employment Opportunity Commission from collecting statistics on sexual orientation from covered entities.

• It would prohibit quotas and preferred treatment.

• It would not apply to religious organizations, the military, and laws creating special rights for veterans.

• The law would prohibit the imposition of affirmative action as a remedy for violations.

According to public opinion polls, there is widespread support for legislation that would prohibit employment discrimination based on sexual orientation. Yet Congress has been reluctant to act and is probably less likely to do so given the results of the 2002 midterm election.

^[14]Mark Boal, "Spycam City," The Village Voice (September 30, 1998).

^[15]Charles Lewis, "American Workers Beware: Big Brother Is Watching," USA Today (May 1999).

^[16]Senator James Jeffords, Congressional Record (June 10, 1997), p. S5457.