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Casebook Read Credits
Employment Law
Section 9
half an hour

Privacy and Consent

Mary R Ziegler

Privacy claims at work can fail if an employee is deemed to have consented to the purported violation. Consent can defeat such a claim in two ways. First, consent may establish that an employee did not have a reasonable expectation of privacy. And under some circumstances, consent may count as a defense to otherwise actionable privacy violations. The Restatement, by contrast, treats consent as only one factor in determining whether an employer's action was offensive. Restatement (Third) of Employment Law ยง 7.03-7.05 (2015). How can we identify authentic consent given the power dynamics of the workplace? When should consent still be a relevant concern?

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