« The American Presidency: An Invitation to Detrimental Decision Making | Main | JOTWELL: Effron on Glover on happenstantial federalism »

Wednesday, April 23, 2014

Gendered Privacy

I am thinking about the question of whether courts should ever take into account the gender of the plaintiff in considering privacy questions.  In other words when deciding whether an individual has a reasonable expectation of privacy under the Fourth Amendment test, or whether a private-sector intrusion upon seclusion tort would be "offensive to a reasonable person," should that "reasonable person" be genderless, or take on the gender of the plaintiff.  

One of the clearest examples for where the gender of the plaintiff may matter to the analysis is in the context of workplace drug testing.  In deciding whether a particular drug test procedure is legal under either a Fourth Amendment or tort standard, courts might take into account that there are both biological differences, and cultural differences in the way our society has currently structured our public restrooms that may make a woman perceive a particular drug test procedure as more offensive than a man would.  The difference is the most apparent when a drug test procedure involves a monitor observing urination to ensure that there is no tampering with the sample.  To date, however, no court that I could find has explicitly admitted to taking into account the gender of the plaintiff in deciding these cases.  

Nonetheless, although it is a small sample of cases, I could not find a single case where a court upheld such a direct-observation drug test of a female employee.  There are, however, cases where courts uphold direct-observation drug tests of male employees.  Nor, as far as I can tell, can this difference be explained by differences in legal tests being applied, or differences in the safety-sensitive nature of the job (some of the female employees were prison guards for example).  

This begs the question as to whether courts are either consciously taking into account the gender of the plaintiff without saying so, or whether they are doing so subconsciously.  If the former, is there any benefit to courts coming out and admitting that they are taking into account gender as part of their analysis?  It certainly seems more intellectually honest, but would it have unintended consequences for other areas of privacy law, or unintended consequences for discrimination in the workplace?  I am very interested to hear all your thoughts, but especially would love help identifying what might be the harms of such a gendered approach.   

Posted by Victoria Schwartz on April 23, 2014 at 12:33 PM | Permalink


Jim, that very well may be a fair account of what is going on. I wonder whether there is at least an argument that by not making the reasoning explicit the courts are short changing employers (and others) who are not on notice that invasions of privacy for their female employees may be treated differently than their male employees. I agree that there may be legal problems with being more transparent that may weigh against those interests.

Jason, those are precisely the kinds of secondary consequences I was hoping people would raise. I agree that there is a chance that an explicit gendered approach may cause all of the problems you raise. I still wonder whether the court considering gender "secretly" solves these problems. The employer who has the direct monitoring case struck down for the female employee without any discussion of the gender-role in the case, still has to face all of the same decisions.

Posted by: Victoria Schwartz | Apr 24, 2014 1:46:21 PM

Peter, thank you for bringing the Unger case to my attention. I had not specifically looked at military cases, and will now do so.

Adam, great question about how to take gender into account as a practical matter. I will have to give it some more thought, and would love your thoughts. I note, as an initial reaction, that in supporting its gender-neutral statement that the reasonableness of plaintiff's expectation of privacy is supported by the experiences of other young people similarly searched, the Supreme Court cited to an Amici Curiae brief, as well as an article in the Journal of School Psychology rather than a more formal expert testimony. Whatever we think of the court's use of these sources, I see no reason why that analysis would change if the question is what is the reasonable expectation of privacy of a teenaged girl (or female employee). In other words, those who object to the use of such sources likely do so regardless of whether the analysis is gendered, or genderless; the same is true for use of experts.

Posted by: Victoria Schwartz | Apr 24, 2014 1:40:04 PM

Sticking with the specific context of employee drug testing, an explicitly gendered approach that made gender a significant factor would put employers in a difficult situation, at least in the absence of crystal-clear legal provisions of the sorts that could take many years to develop under common-law adjudication with numerous jurisdictions where a standard as opposed to a rule is employed.

Given a specific set of facts, and given a secure belief that direct observation (DO) would be appropriate without consideration of gender but a concern that a court might reject DO for females, the employer could (1) impose DO on both employees and risk a privacy-related lawsuit; (2) impose DO only on the male and risk a gender-discrimination lawsuit; (3) impose DO on neither males not females because the litigation risk in (1) and (2) are unacceptable, compromising the effectiveness of the drug-testing program, or (4) make everyone take blood or perhaps hair tests (each of which open up their own set of privacy issues and litigation risks).

Also, employers would be understandably hesitant to retain employees under certain circumstances if they could not rely on their drug-test results. For instance, DOT currently believes that testing subsequent to a positive or suspicious result needs to be done by DO to allow for adequate confidence in the results. If an employer could not rule out sample substitution via DO where a prior test was problematic, then the employer may decide to exercise its discretion to terminate the employee rather than expose itself to the increased risk of an employee's drug use going undetected and the considerable liability that could result from such use. (After all, counsel for an injured party is going to claim the employer was negligent in retaining the employee without conducting DO, and the employer would have to litigate that.) Under choice (3) above, the employer would be incentivized to give neither males nor females another chance, while under option (2) the disincentive might only extend to females.

Thus, in a regime (i.e., the DOT testing program) where DO is not used as a matter of course but only under suspicious circumstances, the end result of a gendered approach might be worse for women or for all employees, who might prefer an increased chance at keeping their jobs over the avoidance of DO made by a same-sex observer.

Posted by: Jason S. | Apr 24, 2014 11:07:53 AM

If you make your consideration of gender explicit, you have to reconcile your entire analysis with the Equal Protection Clause. Why should a judge make work for herself and invite a new line of argument for reversal?

I admit I don't find this the least bit puzzling. The Ginsburg example shows there's nothing subconscious about it; but just because you're conscious that a fact matters doesn't mean you write it down.

Posted by: Jim von der Heydt | Apr 24, 2014 7:29:02 AM

In January 1989, the Court of Military Appeals issued an opinion in Unger v. Ziemniak, 27 MJ 349 - after it granted review of an extraordinary writ in the case.

In August 1988, Lieutenant Unger was charged with willfully disobeying the lawful order of a superior commissioned officer that she comply with a Naval directive-OPNAV Instruction 5350.4A-by giving a urine sample under direct observation by a female enlisted servicemember.

COMA considered many of the issues you raise in your note and ruled against LT Unger. While not precisely on point with all of the issues and containing more issues that you had no reason to address, COMA basically said that in the circumstances existing in the Navy in 1988, direct observation of a female giving a urine sample was not unconstitutional.

Posted by: Peter E. Brownback III | Apr 23, 2014 7:23:54 PM

While I applaud Justice Ginsburg's in camera advocacy, I have some doubt that the invasiveness of that search was a gendered phenomenon. Might it be more a generational phenomenon? I have often heard women suggest that men are more tolerant of "locker room nudity" than women. I have always wondered how they would know this, and I can't say I feel that way myself. I could imagine this to be true of men playing organized sports, maybe - but matters are getting pretty equal on that front these days.

Yes, I can imagine that a girl hitting puberty might be more sensitive than a boy of the same age - but not categorically so. And that brings me to my question: Suppose courts were to explicitly take gender into account. How exactly should those considerations find their way to the judge? Is this a matter of expert testimony? Because I think Orin might have thoughts on whether that's really an "expert" question or even a democratically-informed "lay" question. If judges could explicitly take gender into account, how would they do so in a systematic way? Without an answer to that question, it's hard to know if Victoria's suggested framework would mark practical, as opposed rhetorical, improvement.

I'm glad Ginsburg chimed in, and her rhetoric seems to gotten the Court to see the just result in that case. But if it had been a 13yo boy, it still would've been the just result.


Posted by: adam | Apr 23, 2014 4:26:24 PM

Thanks Orin for sharing that. The Redding case and Justice Ginsburg's comments raise many of the same questions I am struggling with. It seems based on Justice Ginsburg's comments that the fact that the student was a young girl, rather than boy played an impact in her analysis of the girl's reasonable expectation of privacy, and perhaps played a role in convincing her colleagues.

Nonetheless, the opinion does not make this at all explicit, but rather is quite careful to use gender-neutral terminology. The court presents the question as "whether a 13–year–old student's Fourth Amendment right was violated" without limiting it to a 13-year-old girl. Similarly, in the analysis the court quotes an earlier decision for the premise that a school search is permissible when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” In its application, however, the Court does not focus on the sex of the student, but rather keeps things gender-neutral: "the reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure." This again raises the question of whether there is some harm caused by making the analysis explicitly gendered.

Posted by: Victoria Schwartz | Apr 23, 2014 2:22:40 PM

Justice Ginsburg has suggested that she persuaded her colleagues that the search of a young girl at school was highly invasive in Safford v. Redding, a point that the male justices allegedly didn't get at first because it wouldn't be such a big deal if a boy had been searched in similar circumstances:

"They have never been a 13-year-old girl," [Ginsburg] told USA TODAY later when asked about her colleagues' comments during the arguments. "It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."


Posted by: Orin Kerr | Apr 23, 2014 1:16:31 PM

The comments to this entry are closed.