ADA permits lawsuit for employer’s privacy breach

Facebook and personnel matters do not mix well. This ought to go without saying by now, but apparently it does not. The Americans with Disabilities Act (ADA) allows employees to sue employers who reveal their medical condition, diagnosis, or treatment to persons who lack a legitimate need to know.

George Shoun sued his employer, Best Formed Plastics, Inc., after an employee who processed workers’ compensation claims for the company unfavorably compared the length of his recovery from a shoulder injury to another employee on her Facebook page. The employer asked the federal court in Indiana to throw the case out, but the judge ruled in June that Mr. Shoun’s lawsuit can proceed.

The ADA permits an employee to sue his or her employer when the employer fails to keep private medical information learned through an employment examination or inquiry. The employee must show that the information was kept confidential prior to the employer revealing it, and that the privacy breach caused a “tangible injury” to the employee.

In Mr. Shoun’s case, the court found that a separate lawsuit Mr. Shoun had filed in which he revealed information about his shoulder injury did not automatically bar his case from going forward. The court also rejected the employer’s argument that Mr. Shoun suffered no tangible injury because Mr. Shoun alleged that other employers had refused to hire him based on the Facebook post and that he had suffered emotional distress and humiliation. The court found both allegations sufficient to satisfy the injury requirement.

The Facebook post reportedly included the following:

“Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.”