GINA and Preemployment Criminal Background Checks

One day in the spring of 2009, the Rules Committee of The University of Akron Board of Trustees made a small but significant addition to a new "Employee Background Review Policy" that the university administration had proposed. The policy, modeled on an Ohio law requiring criminal background checks for all K--12 public school employees in Ohio, would require blanket criminal background checks for all prospective UA employees, excluding student employees. (1) The board added an additional requirement unique to standard criminal record policies: "at discretion of the University of Akron, any applicant may be asked to submit fingerprints or DNA sample for purpose of a federal criminal background check." (2) This new policy was approved by the board and enacted on August 30, 2009. As per university policy, the rule was passed without faculty review and went largely unnoticed until adjunct instructor Matt Williams, vice president of New Faculty Majority, a national coalition advocating on behalf of part-time and adjunct faculty, resigned in protest on October 24, 2009, triggering local, national, and international news coverage. An editorial in the Akron Beacon Journal protested that "the swab-for-a-job plan at UA represents a unique and unwarranted intrusion into personal privacy and raises potent discrimination issues," (3) and on October 28th the American Civil Liberties Union issued a press release declaring its outrage over the idea that employers might consider themselves "entitled to our most private, personal genetic information." (4) On November 5, 2009, The University of Akron faculty senate--citing privacy and legal concerns, questioning the breadth of the DNA sample requirement, and emphasizing the threat it poses to the reputation of the university--passed a resolution requesting that the board of trustees reconsider the new provisions. Also on November 5, 2009, the university's Office of General Counsel stated it would recommend that rule 3359-11-22 (B)(3) be amended to read: Certain positions at The University of Akron, if required by law or contract, will be subject to both state of Ohio and federal criminal background checks regardless of how long the preferred candidate has resided in Ohio. The candidate may be required by the law enforcement agency to provide additional information for purposes of conducting the criminal background check. (5) Since neither Ohio nor federal law enforcement agencies routinely screen the subjects of criminal background checks against state or federal DNA fingerprint databases, this suggestion would effectively retract the policy and make it just another story from a university famous for odd academic employment practices (like requiring department chairs to be in their offices from 8 a.m. to 5 p.m. each workday! (6)). But was the UA policy wrong on legal or ethical grounds? And if so, would backing off on the DNA sampling provision right its wrongness? The Rules Committee thought it was simply updating accepted fingerprinting practices prescribed in the Ohio law. Its view was that DNA identification would eventually eclipse fingerprinting as the standard technology for criminal background checks, because Ohio is moving toward mandatory DNA identification and sampling in the "booking" of all arrestees. (7) At least for university personnel whose jobs give them access to valuable equipment, student living quarters, and faculty offices, some might find the practice of preemployment screening against databases of known felons and sex offenders simply prudent. And if we are going to be fair about it, they could argue, we should treat all university employees alike in this regard, rather than more heavily burdening the security and housekeeping personnel, who are disproportionately likely to be from minority groups or groups with low socioeconomic status. In retrospect, the incident at UA highlights some interesting questions about the privacy protections that employees deserve in an era of heightened anxieties about institutional security and the applicability of the protections they already enjoy to DNA-based forms of identification. …