Richard Allen Posner, one of the most celebrated Jurists of our time is quoted as having described employment as the act of a person selling themselves in the labor market. Traditionally, the market was conducted under a rule known as caveat emptor , literally translates as buyer beware designed to protect the seller from having to inform a prospective purchaser of all the defects prevalent in the goods being sold. Under this rule, the seller was only obliged to divulge pertinent weaknesses. All these changed with the advent of the barcode, which contains any and all information regarding the goods on sale. With a simple barcode scanner, the purchaser suddenly gets all the entire pros and cons of the good for sale. Andrew Niccol’s 1997 film Gattaca brings the euphemism of the barcode to Richard Allen Posner definition of employment by depicting a system where the employer can, with a system as easy as the scanning of the barcode get all information about a current or prospective employee, including the employees genetic information in reprehensible violation to any right to privacy.
The existence of the fundamental right to privacy has been a legal scholars’ fervent debate for generations. Whereas there is no direct Bill of Rights provision elucidating privacy directly, the spirit of the Bill of rights clearly shows that the right to privacy is jealously protected by the Constitution. From the First Amendment that defends the privacy of one’s belief, to the 3rd Amendment that protects the privacy of one’s home from the Army, to the 5th Amendment that deals with the privacy of personal information (Linder, 2016.). I personally hold the belief that privacy is a sacred constitutional right especially when it regards to information that can negatively impact the image of a person and therefore every employee should come with a caveat emptor tag.
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Current Human Resource Management (HRM) trends clearly show that human resource capital is one of the most vital forms of capital in any business. Hiring the most suitable employee is a fundamental factor in the success of any endeavor. In an effort to recruit the most suitable employees, employers have devised ways and means of acquiring as much information as they possibly can about their employee including unrelated background information, sealed juvenile records, family backgrounds and many others in an effort to acquire employees that are as near perfect as practically possible (Anderson, Bryson & Sizeland, 2013). This coupled with the advancement of genetic technology and the continuing buildup of consensus by researchers that many human attributes emanate from our genetic make-up as encoded in our DNA makes the film Gattaca more of a futuristic depiction than a science fiction. Genetic profiling of potential employees may actually become a reality in the not very distant future (U.S. Equal Employment Opportunity Commission, 2016).
However, the genetic profiling in the film Gattaca can also be considered as an euphemism of the employer going too far in digging for information about employees in an effort to monitor their work, assess their suitability and keep them in check, in this dimension, this film already depicts the present. The advent and eventual notoriety of social media has left today’s employee as exposed as the employee in Gattaca. Social media has become and avenue where people bear all. People chatting on social networks commonly behave in the same intimate manner as people sharing whispers in the dark oblivious of the lack of privacy in the social networks. Today’s employer has exploited this weakness and perfected the art of online eavesdropping then uses this information to the detriment of the hapless employee.
According to CBNC, 28% of employees claim they lost their jobs due to the amount of time they spent on social media during working hours while a whopping 18% claim they lost their jobs because of something they said on social media. Whereas an argument can be made about spending time on social media during working hours, does the employer really have any business perusing what the employee says on social media at all let alone use the same during a procedure as formal and as legal as termination of services? It is my opinion that the employer does not own an employee but only leases out part of his time and even during that time, the employer only owns the aspects of the employee to the extent that it relates to the employee’s obligations at the place of work; an employee’s private life should be out of bounds for the employer.
From a statutory perspective however, the employee is seemingly protected by the Electronic Communications Privacy Act, 18 U.S.C. 2510-20 which prohibits the intentional interception of wire, oral, and electronic communication by anyone including the employer. Unfortunately, that allows a service provider to service provider exemption from this law enables employers to abuse their capacity as the providers of internet connectivity at the place of work to freely eavesdrop on the employee. The common law position however, may favor the employee as the Supreme Court of the United States in Connor v. Ortega , 480 U.S. 709, 716 (U.S. 1987) extended the use of the word property in the 4th Amendment to extend to electronic information (Linder, 2016.). Private entities can however, argue that the 4th Amendment only relates to the relationship between the individual and the federal government and not private employers.
From a casual glance, the film Gattaca may seem like a wild depiction of an impossible crazy wild; a careful perusal, as shown by the foregoing, will however reveal a reality of genetic profiling of employees that may come soon of the current trends by employers and genetic scientist hold. Closer to reality however, the said film is an euphemistic depiction of the current employers trend of violating the privacy of employees in combing into their private information enabled by ambiguous statutory provisions circumspectly evaded to create legal grays areas. These laws need to be amended to protect the employee privacy; there should be a clear, well defined distinction between an employee’s public and private life.
References
Anderson, G. Bryson, J. & Sizeland, J. (2013). The interface between the law and the workplace. The role of human resource managers. LLRN Conference Barcelona. Retrieved from <https://www.upf.edu/gredtiss/_pdf/2013-LLRNConf_AndersonEtAl.pdf/>
Linder, D. O. (2016). The right of privacy: Is it protected by the constitution ? Retrieved June 6, 2016, from http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html
U.S. Equal Employment Opportunity Commission (2016). Genetic Information Discrimination. Retrieved from <https://www.eeoc.gov/laws/types/genetic.cfm/>
