Opinions of the Justices to the House of Representatives

356 Mass. 756 | Mass. | 1969

I agree with the answers submitted by my colleagues. The importance and impact of legislation of this type is great. As far as I can ascertain there are no precedents to serve as guidelines. Therefore, I think it necessary to discuss the constitutional effect of this legislation on the rights of employees.

Undoubtedly every person has the “right” to carry on a business without undue interference. However, an employer does not have an unrestricted right to do anything he pleases that would interfere with the constitutional rights of other individuals.

The subject of an individual's interest in and right to personal privacy has, in the last decade, become a matter of a somewhat extensive discussion by legal commentators. The case of Griswold v. Connecticut, 381 U. S. 479, 485, suggests that an undefined right of privacy is protected by the Constitution.¹ A strong impetus to protect the right of privacy is the fantastic degree to which modern devices enable undetected monitoring. See, e.g., Westin, Science, Privacy, and Freedom: Issues and Proposals for the 1970’s, Part I, 66 Col. L. Rev. 1003, at 1004-1010. It is clear that such devices have made the excesses of Orwell’s “1984” a technological possibility, and have prompted commentators, Legislatures and courts, desirous of avoiding that result, to turn their attention to safeguarding privacy.

The employer has a general right to film the manufacturing process in his plant, but not to film every movement his employee might make and to tape every word that he might utter. The proper approach is to search for a reasonable balance between the individual’s right to privacy and competing claims. The relative importance of the competing claims, along with alternative methods for satisfying those claims, are relevant considerations. See Ruebhausen and Brim, Privacy and Behavorial Research, 65 Col. L. Rev. 1184, at 1190, and Westin, Science, Privacy, and Freedom: Issues and Proposals for the 1970’s, Part II, 66 Col. L. Rev. 1205. Knowledge on the part of the person observed that he is being observed may also be relevant. Westin, Part II, supra, at 1210-1211.

A somewhat analogous conflict between the employer’s right to run his business and employee’s right to privacy is resolved by statutes which prohibit the use of polygraph tests on present or prospective employees. See The Polygraph in Private Industry: Regulation or Elimination? 15 Buffalo L. Rev. 655, at 664-665; G. L. c. 149, § 19B.

I believe that the Legislature could enact a bill which by its provisions would protect an employee’s private and personal deportment and yet preserve the rights of an employer so as to pass constitutional muster.² There is no need to decide whether a bill which applied only to a manufacturing establishment or a factory would violate the equal protection clause.

Jacob J. Spiegel.

1 “We have had many controversies over . . . penumbral rights of 'privacy and repose.’ See, e.g,, Breard v. Alexandria, 341 U. S. 622, 626, 644; Public Utilities Comm’n v. Pollak, 343 U. S. 451; Monroe v. Pape, 365 U. S. 167; Lanza v. New York, 370 U. S. 139; Frank V. Maryland, 359 U. S. 360; Skinner v. Oklahoma, 316 U. S. 535, 541. These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.

“The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often' applied by this Court, that a ‘governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’ NAACP v. Alabama, 377 U. S. 288, 307.”

2 At least one court has held, where no such statute was in force, that an employer’s photographing of an employee for the purpose of studies to increase efficiency of his operations and promote safety of employees did not violate employee’s right of privacy. Thomas v. General Elec. Co. 207 F. Supp. 702 (W. D. Ky.).