In the first decision of the term, the US Supreme Court handed down a rulig involving whether an employee had the expected right to privacy of their persoal information in requests from employers for background checks:
In two cases decided more than 30 years ago, this Court referred broadly to a constitutional privacy “interest inavoiding disclosure of personal matters.” Whalen v. Roe, 429 U. S. 589, 599–600 (1977); Nixon v. Administrator of General Services, 433 U. S. 425, 457 (1977). Respondentsin this case, federal contract employees at a Governmentlaboratory, claim that two parts of a standard employmentbackground investigation violate their rights under Whalen and Nixon. Respondents challenge a section of a form questionnaire that asks employees about treatmentor counseling for recent illegal-drug use. They also object to certain open-ended questions on a form sent to employ-ees’ designated references.
We assume, without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon. We hold, however, that the challenged por-tions of the Government’s background check do not violatethis right in the present case. The Government’s interests as employer and proprietor in managing its internal operations, combined with the protections against public dissemination provided by the Privacy Act of 1974, 5 U. S. C. §552a, satisfy any “interest in avoiding disclosure” that may “arguably ha[ve] its roots in the Constitution.” Whalen, supra, at 599, 605.
The challenged questions on SF–85 and Form 42 are reasonable,employment-related inquiries that further the Government’sinterests in managing its internal operations. SF–85’s “treatment or counseling” question is a followup question to a reasonable inquiry about illegal-drug use. In context, the drug-treatment inquiry is also a reasonable, employment-related inquiry. The Government, recognizing that illegal-drug use is both a criminal and medical issue, seeks to separate out those drug users who are taking steps to address and overcome their problems. Thus, it uses responses to the drug-treatment question as a mitigating factor in its contractor credentialing decisions. The Court rejects 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. So exacting a standard runs directly contrary to Whalen. See 429 U. S., at 596–597. Pp. 16–18.
(3) Like SF–85’s drug-treatment question, Form 42’s open-ended questions are reasonably aimed at identifying capable employees who will faithfully conduct the Government’s business. Askingan applicant’s designated references broad questions about job suit-ability 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. Pp. 18–19.
(b) In addition to being reasonable in light of the Government interests at stake, SF–85 and Form 42 are also subject to substantial protections against disclosure to the public. Whalen and Nixon recognized that a “statutory or regulatory duty to avoid unwarranted disclosures” generally allays privacy concerns created by government“accumulation” of “personal information” for “public purposes.” Whalen, supra, at 605. Respondents attack only the Government’s collection of information, and here, as in Whalen and Nixon, the information collected is shielded by statute from unwarranted disclosure. The Privacy Act—which allows the Government to maintain only those records “relevant and necessary to accomplish” a purpose authorized by law, 5 U. S. C. §552a(e)(1); requires written consent be-fore the Government may disclose an individual’s records, §552a(b);and imposes criminal liability for willful violations of its nondisclosure obligations, §552a(i)(1)—“evidence[s] a proper concern” for indi-vidual privacy. Whalen, supra, at 605; Nixon, supra, at 458–459. Respondents’ claim that the statutory exceptions to the Privacy Act’s disclosure bar, see §§552a(b)(1)–(12), leave its protections too porousto supply a meaningful check against unwarranted disclosures. But that argument rests on an incorrect reading of Whalen, Nixon, and the Privacy Act. Pp. 19–23.
530 F. 3d 865, reversed and remanded.
Strategy – Understand I am not an attorey and am not making a legal opinion here.
Having said that when you ask questions on your applications or in interviews be sure that you can substantiate that the questions are asked for a legitimate business operational perspective. Be sure that the question is based on the question does a response to a question impede the candidate from delivering the responsibilitites of the position. Ay question asked of employees or candidates needs to be in compliance with all applicable laws both state and federal.