The Southern District of California has granted the United States’ motion to intervene in Dowell v. General Information Services, Inc. (GIS), to defend the constitutionality of 15 U.S.C. § 1681c, a provision of the FCRA. GIS contends that subsections (a)(2) and (a)(5) of the provision, which generally prohibit CRAs from disclosing public information regarding an individual’s non-conviction criminal history more than seven years old, is unconstitutional under Sorrell v. IMS Health Inc., 131 S. Ct. 2653. The case stems from a purported class action complaint filed by three plaintiffs, alleging that GIS provided non-conviction data over seven years old in a report to a private company that regulates access and provides employee registration for military base personnel. For background screening providers, if GIS is successful in its argument, the restriction on reporting older, non-conviction criminal history would cease to exist under federal law. Where the EEOC has issued guidance stating that an arrest alone is not grounds for denying an employment opportunity, even the EEOC recognizes that an employer may make a decision based on the underlying conduct if the conduct makes the individual unfit for the position in question.

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