The United State supreme Court upheld that it is reasonable and contractor for employers to conduct employment screening background checks on anyone working as a federal contractor. The Court rejected the contention by contractors that asking about their drug usage history or any opened ended background review was intrusive and in violation of their civil rights. The challenge cam from 28 engineers and scientists at the Jet Propulsion Laboratory, in Pasadena, California.
According to an article in the Washington Post, Justice Samuel A. Alito, Jr. in writing for his colleagues, delivered the following…
“Reasonable investigations of applicants and employees aid the government in ensuring the security of its facilities and in employing a competent, reliable workforce,” Justice Samuel A. Alito Jr. He said it did not matter whether the workers were employed by the government or were contract workers.
“The government’s interest as ‘proprietor’ in managing its operations . . . does not turn on such formalities,” Alito wrote.
Requiring background checks for federal employees has been mandated since 1953. Subsequently to 9/11 it was recommended that all federal contractors be subjected to background checks as well. The main point of contention in the Jet Propulsion Laboratory lawsuit mainly regarded drug abuse and counseling issues. The case, formally, is NASA vs Nelson.
According to the Post article….
Justice Antonin Scalia wrote a scathing concurrence in the case’s outcome, joined by Justice Clarence Thomas.
Scalia said it would be “farcical” to believe that “a right deeply rooted in our history and tradition bars the government from ensuring that the Hubble telescope is not used by recovering drug addicts.”
But he and Thomas would have decided the case by declaring flatly that the Constitution does not contain a right to informational privacy, and he castigated the other justices for not examining the question.
I will be curious to see how this decision, if at all, influences the recent lawsuits filed by the EEOC, regarding discrimination and background checks, especially with regard to credit reports. In its lawsuit, EEOC vs Kaplan, among others cases before the courts at different levels, the EEOC is alleging credit reports discriminates against minorities as minorities tend to have diminished credit scores which hampers their contention as employment candidates. The EEOC has also contended that criminal records searches, at least where the job applicant must check the box that admits previous conviction, is also discriminatory and lessens the chance of a convict felon being hired.
While this case, NASA vs. Nelson, is obviously different than the other lawsuits, it may still be an indicator of the mood of the courts with respect to the rights of both the employee and the employer. It will be awhile before we arrive at a clear definition on any changes to employment screening and how background checks can be utilized.
