Yesterday, in a unanimous 8-0 decision*, the U.S. Supreme Court handed federal employers a victory when they upheld a background check process used by the National Aeronautics and Space Administration (NASA).
The checks, which have been standard for millions of federal employees since the 1950's, were challenged by a group of contract employees at the Jet Propulsion Laboratory (JPL) in California who previously had not been required to undergo them. The employees claimed the questions asked during the background checks infringed on their "constitutional right to information privacy" rights by asking about things like drug treatment.
In their decision, the court held that "the Government has an interest in conducting basic background checks in order to ensure the security of its facilities and to employ a competent, reliable workforce to carry out the people’s business" and that the challenged questions were "reasonable, employment-related inquiries that further the Government’s interests in managing its internal operations." It also held that there was no meaningful difference between contract employees and civil service employees.
With respect to questions regarding drug use, the court pointed out that the government used follow-up questions regarding treatment as a "mitigating" factor to separate out drug users from those who are taking steps to address and overcome their problems.
They gave the federal government a low hurdle to jump when it comes to business necessity, rejecting the argument that "the Government has a constitutional burden to demonstrate that its employment background questions are “necessary” or the least restrictive means of furthering its interests."
They also touched on reference checks, writing "Asking an applicant’s designated references broad questions about job suitability is an appropriate tool for separating strong candidates from weak ones. The reasonableness of such questions is illustrated by their pervasiveness in the public and private sectors."
Importantly, the court pointed out several times that concerns regarding the collection of personal information by the government were mitigated by the substantial controls in place to protect such information.
You can read the decision here. You can also see the challenged forms here and here.
*Justice Kagan took no part in the decision