The U.S. Supreme Court today issued its decision in NASA v. Nelson, a case that we previewed back in October.   As you will recall, the respondents in Nelson were a group of California Institute of Technology employees who worked under a contract with NASA at its Jet Propulsion Laboratory.  Pursuant to a Presidential directive, the Department of Commerce required all contract employees with long-term access to federal facilities to complete a standard background check by no later than October 2007.  NASA modified its contract with Cal Tech to reflect this requirement, but shortly before the deadline, the respondents filed their lawsuit.  

Respondents contended that two specific aspects of the background check process violated their constitutional right to “informational privacy.”  Specifically, they challenged a question asking them to state whether they had received treatment or counseling in the last year for illegal drug use and a questionnaire that would be sent to the employees’ references asking open-ended questions about their suitability for federal government employment.

In a unanimous decision (with Justice Kagan not participating), the Supreme Court assumed, without actually finding, that a constitutional right to informational privacy exists.  The Court then upheld the background checks as a reasonable exercise of  the government’s right to “reasonably investigate applicants and employees to aid in ensuring the security of its facilities and in employing a competent, reliable work force.”  Not only were the disputed background check inquiries reasonable, but the Court also found that the respondents’ rights were substantially protected against public disclosure by the federal Privacy Act.


Not surprisingly, the Court was swayed by the fact that the inquiries at issue are “similar to those (that) became mandatory for all candidates for the federal civil service in 1953” and are “part of a standard employment background check of the sort used by millions of private employers.”  With respect to the inquiry regarding treatment or counseling for the use of illegal drugs, the Court noted that it was a reasonable follow-up to the prior question about using, possessing, supplying or manufacturing drugs during the previous year and, importantly, that the government used the response to the “treatment or counseling” question as a mitigating factor.  Similarly, the Court held that the open-ended inquiries made to the employees’ references were “reasonably aimed at identifying capable employees who will faithfully conduct the Government’s business.” 


Furthermore, the Court stated:

Asking an applicant’s designated references broad, open-ended questions about job suitability is an appropriate tool for separating strong candidates from weak ones.  It would be a truly daunting task to catalog all the reasons why a person might not be suitable for a particular job, and references do not have all day to answer a laundry list of specific questions. 


So, what lessons can we take from the Court’s decision?  One is that it is clear that the Court – particularly, Justices Scalia and Thomas who concurred in the Court’s opinion — has no interest presently in addressing whether a constitutional right to informational privacy exists.  Nevertheless, the Court felt it significant that the government was obligated to maintain the privacy of the information obtained through the background inquiries.  As a result, employers, even private employers to whom no constitutional obligations attach, should strive to ensure that any applicant or employee background inquiries are reasonably related to the job position at issue and to protect the privacy of the information obtained through such inquiries.  


Finally, employers should also recognize that the ADA plays a role here as well.  Employers may not ask applicants for employment about treatment or counseling for illegal drug use until after a conditional job offer is made and may not ask employees unless the inquiry is job-related and consistent with business necessity.