Are birthdays private information?

We publish an employee ‘birthday list’ which includes name and date of birth. A new hire objected to us putting his information on the list without advance permission. He has expressed concerns about identity theft. Is publishing an employee birth date list violating any obligations to protect an employee’s confidential information?

I’ve done many internet searches. Your site had the most useful info I’ve found generally but nothing specifically on this issue. Thanks if you can assist.

Posted 06-14-2004

Ann Kiernan replies:

While our legal research has revealed no cases on this precise point, it is probably not an invasion of privacy to disclose an employee’s birthday. In a Massachusetts case from 1995, a federal judge ruled that disclosing an employee’s age on a birthday card was not illegal, reasoning that “age is not such an intimate or personal fact that it can be the basis of a privacy claim.” Galdauckas v. Interstate Hotel Corp.,901 F. Supp. 454 (D. Mass. 1995)

But we agree with your employee that birthday information should not be given out without the employee’s permission. In addition to identity theft concerns, managers should be aware that not all cultures, religions and people celebrate birthdays, and managers should not assume that all employees want to participate in birthday parties. If your group likes to have birthday parties, when a new employee joins, you can say, “Our group likes to celebrate birthdays. If you would like to participate, let me know.” That leaves it open for the employee to decline.

In fact, birthday celebrations have led to discrimination charges. The EEOC sued Chi Chi’s Mexican Restaurant in Baltimore for firing a waitress who was fired allegedly for refusing to sing “Happy Birthday” to customers. The waitress is a Jehovah’s Witness and that religion forbids celebrating birthdays. The 1998 case was resolved through a settlement providing $57,500 to the claimant, and the restaurant agreed to adopt a new corporate policy emphasizing the company’s commitment to reasonably accommodate the religious beliefs and practices of its employees, keep records of its handling of requests for accommodation, and apprise the EEOC of its accommodation efforts for two years.

We hope this is helpful to you. And thanks for your kind words about our website!

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:42+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.