Privacy Issues in the Workplace

A. H IRING I NTERVIEWS , Q UESTIONNAIRES AND T ESTS All hiring questions must relate to the applicant’s ability to perform the job. Questions about religious beliefs, sexual preferences or habits, sexual orientation or gender identity, financial condition, family relationships, and other such private information may not only violate anti- discrimination laws, but may also violate constitutionally protected privacy rights. The best way to ensure that screening questions are job-related is to evaluate the job position in question. Once the agency is fully aware of the duties and requirements of a job, the agency is in a better position to tailor its interview questions to those that test an applicant’s ability to perform that job.

Fraternal Order of Police v. City of Philadelphia 22 A federal court was called upon to decide the constitutionality of an employment questionnaire that contained questions about medical, psychological, and financial condition, and similar types of information. The questionnaire was given as a condition to reassignment to an elite police unit, and contained the following questions (that the trial court found violated the employees’ right to privacy): “List any physical defects or disability, also list any extended time spent in the hospital for any reason.” “Are you now or have you ever been…treated or observed by any doctor or psychiatrist…for any mental or psychiatric condition?” “Do you gamble? a) How often? b) How much?” “List each loan or debt over $1000….” These questions were ultimately approved by the Third Circuit but based only on the grounds that the employer issued the questionnaire for a position in an “elite investigations” police unit. The court also held that the individuals applying for the elite unit had a decreased expectation of privacy. After subsequent appeals on whether the City had sufficient safeguards against unnecessary disclosure of the confidential information and whether the questions violated the officers’ rights against self-incrimination, the Third Circuit approved the use of the questions and vacated the district court’s injunction against the use of the questions. 23 National Aeronautics and Space Admin. v. Nelson et al 24 . The U.S. Supreme Court held that form questionnaires asking employees about treatment or counseling for recent illegal drug use and asking open-ended questions of the employees’ landlords and designated references did not violation the employees’ right to information privacy. The applicants sought contract positions not involving classified material with the Jet Propulsion Laboratory. They were required to complete a Form 85 which asked for: (1) background information, including educational, employment, residential, and military histories; (2) the names of three references; and (3) disclosure of any illegal drug use within the past year, along

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 14