Borquez v. Robert C. Ozer, PC
1995 WL 656871, 923 P.2d 166 (1996)
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Rule of Law:
An employer is liable for wrongful discharge for terminating an employee based on lawful off-duty conduct, which includes private sexual relationships. An employer is also liable for the tort of invasion of privacy for giving unreasonable publicity to an employee's private life, which occurs when highly offensive private information is disclosed to fellow employees with whom the employee has a special relationship.
Facts:
- Robert Borquez was hired as an associate attorney at the Ozer law firm in May 1990 and performed his job capably, receiving three merit raises.
- Concerned about Robert Ozer's acknowledged dislike of homosexuals, Borquez did not disclose his sexual orientation to anyone at the firm.
- On February 19, 1992, Borquez learned that his companion had been diagnosed with AIDS and was advised by his physician that he should be tested immediately.
- Upset and unable to effectively handle his work duties, Borquez informed Ozer of his sexual orientation, his companion's diagnosis, and his need for testing, and asked Ozer to keep the information confidential.
- Ozer did not agree to confidentiality and proceeded to tell his wife, another shareholder, and others at the firm.
- Within two days, all employees and shareholders at the firm had learned about Borquez's personal life and his need for AIDS testing.
- Five days later, on February 26, 1992, Ozer fired Borquez.
Procedural Posture:
- Robert Borquez sued Robert C. Ozer and the Ozer law firm in a Colorado district court, the court of first instance, for claims including wrongful discharge and invasion of privacy.
- The case was tried before a jury, which returned a verdict in favor of Borquez on both claims.
- The jury awarded Borquez $30,841 for lost wages, $20,000 for embarrassment and humiliation, and $40,000 in exemplary damages.
- The trial court entered judgment on the verdict but denied Borquez's request for attorney fees and costs.
- Defendants Ozer and the Ozer law firm, as appellants, appealed the judgment to the Colorado Court of Appeals, an intermediate appellate court.
- Plaintiff Borquez, as cross-appellant, appealed the trial court's denial of his request for attorney fees and costs.
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Issue:
Does an employer's disclosure of an employee's sexual orientation and potential HIV status to other employees constitute the tort of invasion of privacy by giving 'unreasonable publicity' to the private life of another?
Opinions:
Majority - Judge Taubman
Yes. An employer's disclosure of an employee's private information to coworkers can constitute an actionable invasion of privacy. Colorado recognizes the tort of invasion of privacy in the form of 'unreasonable publicity given to the private life of another,' as outlined in Restatement (Second) of Torts § 652D. The court holds that information about one's sexual orientation and HIV status is a private matter, the disclosure of which is highly offensive to a reasonable person and not of legitimate public concern. While the Restatement requires 'publicity,' meaning dissemination to the public at large, the court adopts a 'special relationship' exception. Under this exception, disclosure to a group with whom the plaintiff has a special relationship, such as fellow employees, is sufficient to meet the publicity requirement because such a disclosure can be as devastating as one made to the general public. The court also affirmed the wrongful discharge verdict, finding it was supportable under a state statute (§ 24-34-402.5) prohibiting termination for lawful off-duty activities, as the jury could have concluded Borquez was fired for his lawful, off-duty conduct.
Concurring-in-part-and-dissenting-in-part - Judge Plank
No. While the tort of unreasonable publicity given to the private life of another should be recognized in Colorado, the trial court committed reversible error by improperly instructing the jury. The dissent agrees with the majority's decision to recognize this form of invasion of privacy. However, the trial court's jury instructions were erroneous because they used the term 'published,' which is the standard for defamation and requires only communication to a single third party, instead of 'publicity,' which requires broader dissemination. This distinction is critical, and the failure to properly instruct the jury on the correct legal standard constitutes a reversible error that necessitates a new trial on the invasion of privacy claim.
Analysis:
This decision is significant for formally recognizing the tort of invasion of privacy for unreasonable publicity of private facts in Colorado, extending greater privacy protections into the workplace. By adopting the 'special relationship' exception to the 'publicity' element, the court substantially lowered the bar for plaintiffs in similar situations. This precedent establishes that employees do not need to prove that their private information was disseminated to the general public to bring a successful claim; disclosure to their coworkers can be sufficient. The case strengthens employee rights by providing a legal remedy against employers who improperly handle and disseminate sensitive personal information within the organization.
