Workplace Voyeurism
Employer Video Monitoring of Bathrooms and Locker Rooms

Electronic monitoring is a rapidly growing phenomenon in American businesses. By recent estimates, 92% of employers were conducting some form of workplace monitoring. This rapid growth in monitoring has virtually destroyed any sense of privacy as we know it in the American workplace. As technology has proliferated in the workplace, it has become ever more penetrating and intrusive. Surreptitious monitoring of the personal habits and lives of employees threatens the very freedoms that we cherish as Americans. Most invasive of all is video monitoring. Some cameras are appropriate. Security cameras in stairwells and parking garages make us all safer without intruding on privacy. But employers often install cameras in areas that are completely indefensible. Many employers have installed hidden video cameras in locker rooms and bathrooms, sometimes inside the stalls. Many of these devices are specifically targeted against women. No one should be required to endure such workplace conditions.
Yet across the country employees are being subjected to this very invasive form of monitoring.

Arizona

A Phoenix, Arizona, elementary school principal discovered a hidden video camera that the superintendent had placed in the school shower, which the principal frequently used after jogging

California

At a Neiman-Marcus Store in Newport Beach , California , Kelly Pendleton, a two-time “employee of the year” discovered a hidden camera in the ceiling of the changing room used by female employees that was being monitored by male colleagues.

Employees of Consolidated Freightways were horrified to find that the company had
installed hidden cameras in its restrooms- some cameras pointing directly at the urinals.
Over a thousand hours of video records were made covering thousands of employees.
"The guys were really shaken, and some of the women went home crying," says Joe
Quilty, the dockworker who discovered the hidden cameras.

 Florida

An employee of Walt Disney World videotaped female employees in bathrooms and
locker rooms. After several months, Disney security became aware of these activities,
but did nothing to correct the situation for many months. Finally, Disney decided to
conduct a sting operation by setting up its own video surveillance system. None of the
female employees were informed so they could take measures to protect themselves and
both the employees and the voyeur were video taped hours in the dressing room area.

The general manager of the Apalachicola Times newspaper installed a hidden video
camera in the employee bathroom and made 29 videotapes worth of recordings. Barbara
Lynn Perry, one several women who was regularly videotaped remarked "No one had my
permission as far as surveillance…I was never formally or informally asked for my
permission. I had no idea there was a camera in the bathroom."

See Smith v. Wal-Mart Stores, Inc., and Liberti v. Walt Disney World Co   below (employer videotaping of workplace bathroom and changing room).

Georgia

Female employees at a local plant in Pendergrass run by Atlas Cold Storage were
regularly videotaped in the bathroom without their knowledge or consent. According to
employees, the plant manager would regularly remind them that “ there’s not anywhere
you can go where I can’t see you.”

Illinois

See Brazinski v. Amoco Petroleum Additives Co. and  Benitez v. KFC Natl. Mgt. Co. below ( employer monitoring of employee locker room and employer use of “peephole” in women’s restroom). 

Kansas

See Thompson v. Johnson County Community College below (employer monitoring of employee locker room).

Maine

See Delledonne v. Dugrenier, below (monitoring workplace bathrooms). 

Michigan

See Lewis v. Dayton Hudson Corp., below (monitoring fitting rooms).

Maryland

A 17 year old woman, Jennifer Smith, testified before the Judiciary Committee of the
Maryland House of Representatives that in her job as a lifeguard, she was videotaped
changing into her bathing suit by her supervisor at the county swimming pool.

Massachusetts

At the Sheraton Boston Hotel hidden cameras were discovered in the employee changing
room. Hours of tape of employees in different stages of undress were logged. One of the
Sheraton workers, Jean L. Clement, stated that: “ Learning about the secret videotaping
made me very scared at work because I feel as though I’m being watched wherever I go,
which is how I felt when I lived in Haiti.”

At Salem State College, everyone in the office knew that Gail would change her clothes in her cubicle for the gym after the work day was done. When her employers installed a hidden camera to monitor the person in the neighboring cubicle’s suspected illegal activities, her daily ritual was captured on film. The first few times could have been labeled as mistakes, but the filming of Gail changing her clothes continued over a five month period.

Ohio

Phyllis Brannen and Shauna Crawford, custodians at Kings High School, discover a hidden video camera in their break room.  An appeals court upholds the school’s installation of the camera. Brannen v. Bd. of Educ., #CA2000-11-098, 2001 Ohio App. Lexis 3165, 17 IER Cases (BNA) 1405 (Unpub. 2001). [2001 FP 158].

Wisconsin

See Gallun v. Soccer U.S.A, Inc., below (employees videotaped disrobing in locker room).

You might assume that this type of monitoring would be actionable in America today. In many cases and jurisdictions you would be wrong. Only three states, California , New York and Rhode Island , have statutes that explicitly prohibit employer video monitoring of bathrooms, locker rooms and areas where employees undress. Employees in 47 states have only the protection that weak or non-existent common law privacy protections offer them.

Many cases of egregious video monitoring brought by employee/plaintiffs have been unsuccessful. Courts across the country have traditionally found the expectation of privacy in the workplace to be so low that even cases of such extreme privacy abuse do not offend courts’ sensibilities.

In Thompson v. Johnson County Community College, a Kansas court held that employees could not have had an expectation of privacy in a locker room because the room contained air conditioning and heating pipes that required occasional maintenance. The constant possibility that someone might need to enter to service them was enough for the court to allow the employer to continue video monitoring. In Brazinski v. Amoco Petroleum Additives Co., the court, employing a balancing test, found that since the video camera installed by an Illinois employer was pointed towards the door of the locker room the invasion of privacy was minimal enough to warrant the intrusion. In fact the court declined to comment seriously on the plaintiff’s contention that the camera could have reasonably captured images of employees in vulnerable positions. Indeed courts have often found in favor of employers without even offering an accompanying explanation. In Benitez v. KFC Natl. Mgt. Co., the court dismissed claims against an Illinois employer with prejudice after the employer’s agents used peepholes to monitor the women’s restroom and gave no explanation of its reasoning.

Notice of electronic monitoring is only required in two states, Connecticut and Delaware . In most states where employers are not required to give notice, courts have generally found that simply voluntarily giving notice is enough to allow them continued and unfettered discretion to monitor bathrooms, locker rooms and other such highly private areas. In Lewis v. Dayton Hudson Corp., signs on fitting room mirrors that fitting rooms were monitored were held to eliminate legal privacy expectations by Michigan employees.

Most damaging to employee/plaintiffs, though, are courts routinely requiring that an employee must establish a clear link between the agent of the employer that conducted the monitoring and the employer’s own purpose in order to hold employer’s liable. Such links are often very difficult to prove. In Gallun v. Soccer U.S.A, Inc., for example, a Wisconsin court found against the employee/plaintiffs even though they had been secretly taped completely disrobing in their locker room because the monitoring conducted by the employer’s agent was “too little actuated by a purpose to serve the employer.” The court in Delledonne v. Dugrenier, reached a similar conclusion regarding agents of a Maine employer monitoring of workplace bathrooms.

Finally some jurisdictions require employee/plaintiffs to prove that actual monitoring took place, despite the verified presence of video cameras. In Smith v. Wal-Mart Stores, Inc., videotapes created during the monitoring were allegedly destroyed by the defendant/employer. Absent proof of malfeasance, this Florida case was dismissed for want of evidence.

There is no justification for employer monitoring of employees in bathrooms, locker rooms and such highly private areas. If a strong enough case for such monitoring actually does exist, the police should be notified and allowed to conduct the investigation according to proper procedures and constitutional guidelines. Legislation is necessary to prevent this unnecessary, exploitive and offensive violation of employee privacy

1) 108 F.3d 1388
2) 6 F.3d 1176
3) 714 N.E.2d 1002
4) 339 N.W.2d 857
See also Liberti v. Walt Disney World Co., 912 F. Supp. 1494, where the court found that had notice been given, the outcome for the employer/defendant might have been different even though employees of the Florida theme park were taped for months undressing in a dressing room during an internal investigation.

5) 516 N.W.2d 789
6) Id.
7) Unreported Maine Case, WL 1702257, 2003
8) 870 So.2d 531