News From the Supreme Court: Right to Privacy by Dr. Jim Higgins

I have hesitated to write about this recent Supreme Court decision for several reasons. On the one hand, I know from extensive experience studying jobs and helping to establish their minimum requirements that there is often a strong need to ensure new hires are likely to be honest, have no hidden “issues” that make them susceptible to blackmail, and that they are likely to reflect well on their office and/or company. Since researchers have demonstrated that “past behavior is the best predictor of future behavior” it makes sense in many cases to implement background checks.

On the other hand, I know that an unfettered ability to look into anyone’s background is not a good thing either. Nearly all of us have things we would like to leave hidden. While they may represent youthful indiscretions, a momentary lapse in judgment, they no longer define us. To make matters worse, some people have lower “shame thresholds” than others and so the same indiscretion might lead one person to not apply for a job while the other says, “bring it on!”

This latter situation could lead to a chilling effect and undermine the goal of a diverse as well as qualified workforce. So, let’s take a look at what the Supreme Court just ruled on and consider how that might implicate employers.
Background

In an 8-to-0 decision before the United States Supreme Court, independent contract workers for the National Aeronautics and Space Administration (NASA) lost their challenge to have intrusive government background investigations struck down as a violation of their right to privacy.

The US Supreme Court ruled that the government has the power to insist that federal contract employees candidly answer certain personal questions – including whether they had received treatment or counseling for illegal drug use. The ruling was a defeat for a group of 28 research scientists, engineers, and administrators at the Jet Propulsion Laboratory at the California Institute of Technology. The group of plaintiffs argued that the government’s practice was overly intrusive.
The Jet Propulsion Laboratory, also known as JPL, has been in operation since 1958 and is famous for its role in many of the nation’s premier space exploration accomplishments. Although it is a NASA facility, it is run by employees of the California Institute of Technology. Its workers are not federal employees, they are contractors.

Many of the scientists who brought the lawsuit had been successfully working for JPL for over 20 years. They complained that the new procedures represented a a sudden unwarranted intrusion into their private lives.

The Plaintiff’s Argument

Lawyers for the scientists argued that the US Constitution prevents the government from requiring individuals to disclose the intimate details of their life unless the government can first demonstrate a legitimate state interest justifying the intrusion. Even then, the lawyers said, the intrusion must be narrowly tailored.

The Supreme Court

The US Supreme Court did not agree with the plaintiff’s arguments. In their unanimous decision, the Court said “We reject the argument that the government, when it requests job-related personal information in an employment background check, has a constitutional burden to demonstrate that its questions are ‘necessary’ or the least restrictive means of furthering its interests,” Alito wrote. Only 8 justices participated in the ruling because Justice Elena Kagan recused herself based on her prior involvement in the issue as solicitor general.

Two of the Court’s justices, Antonin Scalia and Clarence Thomas, issued concurrences to Alito’s majority opinion. They said that while they agreed with the outcome of the case, they would have resolved the case by declaring that there is no federal constitutional right to informational privacy.

In his concurrence, Justice Scalia said he could find no reference to informational privacy in the Constitution.

“Like many other desirable things not included in the Constitution, ‘informational privacy’ seems like a good idea – wherefore the People have enacted laws at the federal level and in the states restricting the government’s collection and use of information,” he wrote. “But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them.”

So, there you have it. The while it may not be likely that any employer can delve into an applicant’s personal life as they see fit when making the hiring decision, the federal Government apparently can. At least in the High Court’s eyes, there is no right to informational privacy. As a result, in this age of social media, data that can never be fully deleted, there is a march toward complete openness.

What This Means

My primary concern arises from a kind of reverse opportunity bias. Those from lower socio economic groups have an increased opportunity to have negative interactions with authorities, inferior schools, a greater peer pressure to demonstrate independence through defiance. As the young from this population grow up, they are likely to carry with them a history of behavior, indiscretions, or even serious violations of the law that no longer define them. In the eyes of at least the largest employer in the country, these individuals are likely to see their opportunities decrease.

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