Privacy Issues in the Workplace

with any treatment or counseling received for such use. Each of the applicants' references, employers, and landlords were sent a different questionnaire, known as a Form 42, which sought information about the applicant's honesty, trustworthiness, and any adverse information about the applicant. The U.S. Supreme Court held that, assuming a constitutional right to information privacy exists, the information requested in the forms was “reasonable in light of the Government interests at stake.” 25 Under the federal Privacy Act 26 , the information collected through the questionnaires is “shielded by statute from ‘unwarranted disclosur[e].’” 27 The Privacy Act, which “covers all information collected during the background-check process,” permits the Government to “maintain records” about a person “only to the extent the records are ‘relevant and necessary to accomplish’ a purpose authorized by law.” 28 Further, the Act requires “written consent” before the Government can disclose records relating to a person. 29 These provisions require the Government to take appropriate safeguards to protect the information collected through the questionnaires. Thus, the Government’s collection of the information does not violate a constitutional right to information privacy. DFEH Guidance on Transgender Rights in the Workplace 30 Employers “should not ask questions designed to detect a person’s gender identify, including asking about their marital status, spouse’s name, or relation to household members of another.” 31 Employers should also “not ask questions about a person’s body or whether they plan to have surgery.” 32

B. C ONDUCTING R EFERENCE AND B ACKGROUND C HECKS Employers have a strong interest in, and may even be statutorily required, to conduct reference or background checks to determine whether job candidates are qualified for employment and whether current employees are qualified for promotion or new assignments. An employer should review its background check process to make sure that it does not violate applicants’ privacy rights. Specifically, employers should verify that all inquiries may be justified by a legitimate reason. Background inquiries should be tailored to determine if the applicant can perform the essential duties of the job and will otherwise be a quality employee. These might include questions about the applicant’s job skills, disciplinary history, initiative, willingness to learn new tasks, ability to function with co-workers and supervisors, leadership skills, as well as innumerable other job-related factors. By contrast, questions about religious beliefs, sexual preferences or habits, financial condition, family relationships, and other such private information are seldom job-related. The only proper scope of a background check is one that is job related – to ascertain an applicant’s qualifications for employment.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 15