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Supervisor revealed secret pregnancy: any recourse?
September 29, 2011 6:55 AM   Subscribe

Supervisor revealed secret pregnancy: any recourse?

So I have this friend who has an unplanned pregnancy. After she was a few weeks along she told her supervisor in case she needed to miss work for morning sickness or doctor's appointments. Well, needless to say, her supervisor spread the news among all her co-workers and even started telling clients. She lives in a very conservative Bible Belt area of the US where unmarried mothers are frowned on so everyone is gossiping behind her back and being very hurtful. Also, she had just started dating the guy so that has made the gossip even worse. I was wondering if she has any legal recourse? Is there any law that prevents employers from revealing medical information? Would HIPAA apply in this case? She works for a large corporation if that is relevant.
posted by jihaan to Human Relations (15 answers total) 1 user marked this as a favorite
 
This is exactly what HR is for.
posted by Windigo at 7:00 AM on September 29, 2011 [15 favorites]


Someone else would be better qualified to answer from a corporate standpoint - but no HIPAA does not apply in this instance. Medically, the supervisor had no reason to know about her pregnancy, and is not held into any medical guidelines (provided she didn't find out through confidential medical billings, patient's chart, etc.). HIPAA views this as voluntary disclosure and would treat it the same as telling your best friend. So if you friend approached the supervisor as an act of good faith, she's SOL as far as HIPAA is concerned. Jerk move to disclose it, yes, but not illegal.

Not sure about anything related to HR though.
posted by lpcxa0 at 7:02 AM on September 29, 2011 [1 favorite]


I think jenfullmoon is missing the point a bit. Yes, 6 months from now she would, crossing fingers for good health, be very pregnant and everyone would know it. But this was a few weeks along and she'd just started dating the guy. There's a significant difference in social perception of an unmarried woman who's pregnant after dating a guy for 2 months, and an unmarried woman who's been in a steady relationship for 7 months and just revealed that the reason for her cute little empire waist styles is that she's due soonish. The longer it stays secret, the harder it is for some old biddy to do the math and decide she must've gotten knocked up on the first date. The more committed the relationship is when the news breaks, the less juicy the gossip is.

The supervisor has done wrong. Take your complaints to HR, and the supervisor will probably get reprimanded, but the supervisor will also probably shrug and say "I had no idea it was supposed to be secret" or "I only told people who needed to know because it might affect their plans for the collaboration on Project X." Which will probably be a lie, or at least abuse of the spirit of the rules, but that's just the way it goes. Slap on the wrist, and yet more gossip. But it's worth the effort to make sure that the supervisor is told by someone that she's been unprofessional.

Retroactive advice - she should probably have been vague about the "medical issue she's not ready to talk about" that might increase her need for sick days or flexible scheduling around doctors appointments, and perhaps should have gone directly to HR before addressing it with the supervisor, so as to lay a thorough paper trail.
posted by aimedwander at 7:47 AM on September 29, 2011 [6 favorites]


Did your friend make it explicit that she didn't want this news shared or for the supervisor not to tell anyone? If so, then yeah, HR it up, although it could be a case of 'I said she said'.

If it was mentioned off-cuff and no conditions were attached to it, then dick thing to do, but I can understand why the supervisor might have thought it would be ok to tell people.
posted by Scottie_Bob at 7:56 AM on September 29, 2011


this news was going to come out no matter what

Unless she decided to not continue the pregnancy at some point. Which I imagine would also not go over well in a Bible Belt area. Even if she were to have a natural miscarriage in the first three months where she could have easily kept it hidden, now there will always be gossip about how "natural" it was.
posted by mikepop at 8:05 AM on September 29, 2011 [3 favorites]


It doesn't matter whether she "made it explicit". Unless she explicitly told the supervisor to spread the word, this was not the supervisor's business to share. And unless the job involves something that needs to be accommodated during early pregnancy (chemical exposure, etc), it's not the coworkers' business either.

Even women with very wanted pregnancies often choose not to tell the gen pop until after the first trimester in case there is a problem (or they wait until they show because they're worried about losing their jobs for being pregnant). Even a fairly idiot supervisor should be generally aware of this convention.

But unless they work in an industry where customer confidentiality is a concern OR the supervisor in question has a history of similar incidents, HR will likely not do anything. At best, she'll get called on the carpet and told not to gossip. It's worth reporting it, though, and using some strong language about medical privacy. As we always say around here, HR is there to protect the company, not the employee, but a lack of discretion is a risk to the company, so they might at least take action in that way. (Or maybe the next time, this incident will be on the record so it will have some impact.)

The upside of going to HR is that now she will have a documented medical condition and any retaliatory behavior by the supervisor will be viewed in a legally vulnerable light. She could also, at that point, tell her coworkers in a way that makes it clear she knows everyone's been shit-talking and it is not appreciated.
posted by Lyn Never at 8:31 AM on September 29, 2011 [1 favorite]


I am not a lawyer, and this is definitely not legal advice. This is the result of about 5 minutes of internet research. Your friend should take a look at the Family and Medical Leave Act to see whether it covers the interaction she had with her supervisor. If she was requesting an adjusted schedule due to her pregnancy, she should determine whether she is covered by FMLA, even if she never invoked the name of the Act. There are confidentiality provisions in that Act that cover medical disclosures made in the course of seeking accommodations.

HR is not her friend here. HR's job is to prevent the company from being sued, which in this case means protecting the boss. If she wants to know what options she has for recourse, she is going to need her own attorney who can explain her rights and tell her what, if any, options she has going forward. I would not report this to HR without first talking to an attorney who specializes in labor law and pregnancy discrimination.
posted by decathecting at 8:43 AM on September 29, 2011 [5 favorites]


I would not report this to HR without first talking to an attorney who specializes in labor law and pregnancy discrimination.

I just wanted to highlight this. HR is there to protect the company, not the employees.
posted by Specklet at 8:54 AM on September 29, 2011 [11 favorites]


I am not yet a lawyer, and even once I am, I won't know much about employment law or medical privacy. I cannot give you legal advice.

Don't leap from

she's SOL as far as HIPAA is concerned.

to

Jerk move to disclose it, yes, but not illegal.

Even assuming this poster is correct that HIPAA doesn't apply, there are plenty of other legal avenues that might. Talk to a lawyer in your jurisdiction who specializes in employment law.
posted by foursentences at 8:57 AM on September 29, 2011


have her talk to an employment lawyer at www.nela.org.

If she's a federal employee, memail me.
posted by Ironmouth at 9:48 AM on September 29, 2011 [2 favorites]


I am not a lawyer, but my career is in the medical field and HIPAA is a huge part of my job. I'm also sitting at an airport right now, better able to answer the question. Without turning this into a thread about HIPAA - employers are generally not covered entities under HIPAA. Employers are covered entities under HIPAA when they have access to PHI (protected health information) that is normally considered confidential such as medical statements, patient's chart, etc. There are such things as accidental disclosures which I'm not getting into it since it's very open for debate what constitutes it. But a textbook example of accidental disclosure is the janitor finds a lab slip during normal cleaning stating you came in for a HIV test; the janitor under HIPAA has a duty to report the breach and not share the information. I will retract my statement that she is SOL if the friend works in a medical field, or a related covered entity such as a clearing house, or statement processor. In this instance, if the boss gained knowledge of the pregnancy through these means (using position to gather information, accidental or intentional); then yes HIPAA would be applicable.

However, since the poster gave no information to suggest this - I'm assuming the friend made a good faith effort to inform her boss of the pregnancy, intending that it would remain between them (all other factors excluded, such as what level of privacy was assumed) and reduce the impact on performance. In this instance, where the breach of privacy would have occurred is when the boss leaked the information of the pregnancy. However, since this information was not privileged as voluntary disclosures (such as telling your boss why your 2 hours late due to morning sickness) are not covered under HIPAA.

Family Medical Leave Act may be applicable in this instance - however an employment lawyer would be better able to advise on this. However, discrimination against pregnant women is explicitely forbidden under the US Equal Employment Opportunity Commission (http://www.eeoc.gov/laws/types/pregnancy.cfm). As such:
It is unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer


If it can be proven that the boss intentionally disclosed this information, knowing the effect that it would have on the employee, then it would be more of a discrimination lawsuit then a medical disclosure issue. Again, this is because the disclosure was voluntary, while what she is experiencing is discrimination (I assume). I agree with many that state inform HR, and lawyer up.

Again, I am not a lawyer, nor should this be taken as legal advice. One of the lawyers on this site may be better able to expand on any of this, or shed new light.
posted by lpcxa0 at 10:14 AM on September 29, 2011 [1 favorite]


Speaking as an HR person, I want to clarify what side we're on. Not the employee, not the supervisor, but the company. That's really important. In my current job, we'd be flipping out at the supervisor for doing something with medical information beyond howling in panic, shoving any paperwork at the employee, and demanding it be taken to HR while they take ten minutes in their office to clean their eyes and brain out with acid.

Seriously, supervisors don't get medical stuff ever and when they do keep it or talk about it or anything, even with a voluntary disclosure, we go after them. This action would be worth a written reprimand where I work and I would really prefer to know about it so we could stop it before it happens with an employee who likes filing lawsuits. I spend a lot of time worrying about what supervisors do with the limited information they have to have (like the existence of an FMLA certification.) There's one particular case where my boss and I have the "they still haven't said anything to anyone, right" conversation at least twice a month. I have to report employee gossip (and people trying to get information from me) straight up the chain, too, so we can track down where information came from.

I hate the "HR is not on your side" stuff around here, because it's kind of true but often not the point. HR really should know about this, if only because it's likely to get a lot worse before it gets better, given how it started and how long it's going to last (assuming she keeps the child.) Especially in a large company, HR should want to nip this kind of thing in the bud.

(FMLA's disclosure prohibition only applies if it was required by the employer, not volunteered by the employee, last I checked. That doesn't mean the supervisor wasn't being stupid, dangerous, idiotic, and putting the company at risk anyway - not to mention being a bad person and supervisor on many levels.)
posted by SMPA at 10:46 AM on September 29, 2011 [6 favorites]


re HR: at my former fairly large company, HR outed a closeted vice president - gossiping behind his back. (The full story to this is pretty horrifying.)

Which is to reiterate that HR is a company machine; consult with a lawyer.
posted by crankyrogalsky at 10:50 AM on September 29, 2011


I'm an employment lawyer, company side. I have one question: What "legal recourse" would she want? Based on the description above she hasn't been economically damaged, and she hasn't been harassed (as that term is defined in the law). Some states do allow a tort claim for "public disclosure of private facts," but again, what recourse? Does she want the supervisor fired? Spoken to? Humiliated? Tarred and feathered?

The fact is that everyone makes mistakes. In my experience many people just aren't aware of the sensitivity of medical information, and need to be educated. I agree with SMPA 100% that it's worth notifying HR so they can speak to the supervisor and say: "Hey, bud, this isn't the kind of thing that you should be discussing with anyone else, so knock it off."

Finally, if she's really trying to keep the pregnancy on the DL, pursuing any sort of legal action is a particularly poor way to accomplish that.
posted by pardonyou? at 11:20 AM on September 29, 2011 [2 favorites]


Pardonyou?'s question is valid. She should think long and hard about what recourse she is expecting that would require a lawyer. If she feels her job is at risk for some reason then yes, she should consult one, but otherwise, not much would come of it most likely.

In terms of SMPA's "HR take"...read between the lines. While SMPA is focusing on the fact that they would be flipping out at the Supervisor, what they do not mention is that since HR works in the interest of the company, they would also likely be speaking with you to try to placate you and prevent you from doing anything litigious or that could potentially have a negative impact for the company. Playing both sides of the fence as it were.

If it were me I'd probably email my boss to document the situation and explain that you do not appreciate how it has been handled, that it was told in confidence, etc. Then forward it to your boss's boss and HR and ask to meet with them. Your leverage in the situation is completely dependent on how valuable you are to the company versus your manager. If they really care about you, they may move you to a different team or something of the sort. I've also had a situation where my boss abused me verbally and in writing, had a meeting with HR, and then I was the one that got canned for "performance issues" shortly after which was a complete crock of shit. So be careful as its all political and this could go completely south.
posted by Elminster24 at 2:40 PM on September 29, 2011


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