Norman-Bloodsaw v. Lawrence Berkeley Laboratory

The Defendant, Lawrence Berkeley Laboratory (“Lawrence”) conducted mandatory pre-placement examinations of their employees. This mandatory exam took place after an employment offer but prior to the start of job duties. Each of the plaintiffs (current and former workers of the Defendant) had undergone this mandatory pre-placement exam. During these exams, plaintiffs completed medical history questionnaires and provided blood and urine samples. Those blood and urine samples were then tested for syphilis, sickle cell trait, and pregnancy.

Plaintiffs asserted that this testing was a violation of Title VII of the Civil Rights Act of 1964, the American with Disabilities Act (ADA), and right to privacy under both the U.S. and California Constitutions.

Plaintiffs filed a suit alleging that the testing for syphilis, sickle cell trait, and pregnancy occurred without their notification, knowledge or consent. They also alleged that Black and female employees were being singled out for additional nonconsensual testing. Finally, plaintiffs also claimed that Lawrence failed to provide safeguards to maintain confidentiality of their test results.  The U.S. District Court for the Northern District of California granted defendants’ motion to dismiss and summary judgment as to all claims.

Relevant Legal Provisions:

Art. 1, §1 of the California Constitution: All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Title VII of the Civil Rights Act of 1964: https://www.eeoc.gov/laws/statutes/titlevii.cfm

Fourth Amendment of the U.S. Constitution: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

42 U.S.C. §12112: https://www.gpo.gov/fdsys/pkg/USCODE-2009-title42/pdf/USCODE-2009-title42-chap126-subchapI-sec12112.pdf

The Court of Appeals reversed all judgments by the District Court, except the ADA claims which were affirmed. The case was remanded.

1. Statute of Limitations

The Court of Appeals held that there was a genuine issue as to whether the plaintiffs knew or had reason to know of the nature of the blood tests.  The District Court found that the statute of limitations period began at the time the tests were taken since the “plaintiffs knew or had reason to know of the injury which is the basis of the action”. The Court of Appeals stated that the entries on the questionnaires were not identical or suggestive of the conditions for which the plaintiffs were being tested. It was also not reasonable that a person who completed a medical history questionnaire would be on notice that his employer would be verifying those answers with intrusive testing.

2. Federal and State Right of Privacy

The Court of Appeals held that there were material issues of fact as to whether the blood and urine testing was part of a normal physical examination. There was little overlap between what the plaintiffs had consented to and the testing that was performed.  Obtaining self reported information from an employee about a health condition did not have anything to do with actually being tested for that condition. Intrusion by Lawrence was not de minimis.

3. Title VII Claims

The Court of Appeals held that it was an error to rule as a matter of law that no adverse effect could arise from singling out particular groups for additional nonconsensual testing. “An additional term or condition requiring an invasion of privacy” was actionable under Title VII.  Non-consensual collecting of sensitive medical information did constitute an adverse effect or injury under Title VII.

4. ADA Claims

The Court of Appeals affirmed the district court’s decision in dismissing the plaintiffs’ ADA claims. The ADA did not restrict the scope of entrance medical exams to matters that are “job related and consistent with business necessity”. Plaintiffs also provided bare conclusory allegations that Lawrence did not provide adequate safeguards for their health records.

“The constitutionally protected privacy interest in avoiding disclosure of personal matters clearly encompasses medical information and its confidentiality. Doe v. Attorney General of the United States, 941 F.2d 780, 795 (9th Cir. 1991) (citing United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980)); Roe v. Sherry, 91 F.3d 1270, 1274 (9th Cir. 1996); see also Doe v. City of New York, 15 F.3d 264, 267-69 (2d Cir. 1994). Although cases defining the privacy interest in medical information have typically involved its disclosure to "third" parties, rather than the collection of information by illicit means, it goes without saying that the most basic violation possible involves the performance of unauthorized tests - that is, the non-consensual retrieval of previously unrevealed medical information that may be unknown even to plaintiffs.” pp.1269

“One can think of few subject areas more personal and more likely to implicate privacy interests than that of one's health or genetic make-up. Doe, 15 F.3d at 267 ("Extension of the right to confidentiality to personal medical information recognizes there are few matters that are quite so personal as the status of one's health"); see Vernonia Sch. Dist. 47J, 515 U.S. 646 at 658 (noting under Fourth Amendment analysis that "it is significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic"). Furthermore, the facts revealed by the tests are highly sensitive, even relative to other medical information. With respect to the testing of plaintiffs for syphilis and pregnancy, it is well established in this circuit "that the Constitution prohibits unregulated, unrestrained employer inquiries into personal sexual matters that have no bearing on job performance." Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1336 (9th Cir. 1987) (citing Thorne v. City of El Segundo, 726 F.2d 459, 470 (9th Cir. 1983)).  The fact that one has syphilis is an intimate matter that pertains to one's sexual history and may invite tremendous amounts of social stigma.  Pregnancy is likewise, for many, an intensely private matter, which also may pertain to one's sexual history and often carries far-reaching societal implications… Finally,  the carrying of sickle cell trait can pertain to sensitive information about family history and reproductive decisionmaking. Thus, the conditions tested for were aspects of one's health in which one enjoys the highest expectations of privacy.”   pp.1269