When Do Employment Background Checks Go Too Far?

There are generally pretty clear limits on what private employers can and can’t look for when conducting background checks on prospective employees, and how they can use the information they obtain. And there are no constitutional issues involved, because the Constitution does not restrict private conduct, only conduct by the government. There are some legal restrictions on what private employers can look at when they conduct background checks, but those are imposed by state and federal statutes (most of which were enacted quite recently), and have nothing to do with the constitutional rights of job applicants.

But what about government employers? Are there any constitutional protections against overly-invasive background checks for prospective government employees in the U.S.? After all, the Supreme Court has repeatedly held that there is an implied constitutional right to privacy, even though such a right is not explicitly mentioned in the Constitution.

So, one would think that there are some limits on what government employers can ask prospective employees. However, judging from reports (also reported here) coming from the Supreme Court after oral arguments on this case, all of the justices appear extremely skeptical that the right to privacy extends to employment background checks, with possible exceptions for extremely private information that’s totally irrelevant to the job being applied for.

The case specifically involves 28 scientists applying to work at the Jet Propulsion Laboratory at Caltech. When applying for their jobs, they were asked many open-ended questions, some of them quite personal, about their pasts. These included questions about past drug use.  They objected, and filed a lawsuit which eventually made its way up to the Supreme Court.

Personally, I think that a person’s privacy interest against the government is significantly diminished when they apply for a government job, and that the justices’ skepticism of the plaintiff’s position was perfectly warranted. Besides the fact that the government’s interests as an employer might intersect with interests such as national security or public health, it makes sense that government agencies should be able to access whatever information they need to make an informed hiring decision.

And, perhaps more obviously, the government isn’t going around and making random people on the street surrender this information. These scientists chose to apply for jobs with NASA, and should have known that they would have to give up some personal information. And if they find this background check to be too intrusive, they can withdraw themselves from consideration.

I know that sounds like crazy talk in this economy, but if these highly-trained and educated scientists were being seriously considered for jobs at the Jet Propulsion Laboratory, chances are good that they’re highly qualified, and could probably find (perhaps more lucrative) employment in the private sector. The jobs these people were applying for probably weren’t the only thing between them and the bread line.

But what if that truly is the situation for another prospective government employee? If that’s the case, they’d likely be willing to make the necessary trade-offs, including giving up a little bit of privacy. And in any case, if they have something to hide that they’re so afraid of revealing, chances are it would disqualify them anyway.

Now, this isn’t to say I’m one of those “if you’ve got nothing to hide, you’ve got nothing to fear” types of people. I do believe in a right of privacy, especially against government intrusion. However, like all constitutional rights, the complex realities of the modern world require those rights to be balanced against other interests.

When a person goes to work for the federal government, their salary ultimately comes from us, the taxpayers. Besides the simple interest an employer has in hiring the most qualified and ethical employees it can find, which government employers certainly have, they also have an obligation to the American people.

Nevertheless, I don’t believe the right to privacy evaporates when you apply for a government job. Government employees area still Americans, after all, and have the same constitutional rights as the rest of us.

The Supreme Court should probably rule in favor of the government in this case, but if they do, I hope they articulate a rule which places some outer limits on what information they can ask for in background checks, to give government agencies at least some guidance when deciding what information to seek when doing background checks. Generally, however, they should be given significant latitude.

However, whatever rule the court articulates, it should prevent government employers from seeking information that’s obviously irrelevant to the position, and extremely personal. Exactly what questions fall within this category would have to be determined on a case-by-case basis, and weighed against how sensitive the position being applied for is, but it should provide at least some guidance.