The U.S. Department of Justice has moved to intervene to defend the constitutionality of the Fair Credit Reporting Act against a consumer reporting agency accused of violating § 605 of the Act. A woman filed suit against General Information Services, Inc. (GIS) when GIS performed a background check that included details about an incident that occurred more than seven years prior to the requested background check. According to the Act, consumer reporting agencies cannot provide adverse information, except for criminal convictions, “which antedates the report by more than seven years.”
GIS claims that the seven-year limitation violates the First Amendment of the United States Constitution, and that the Act’s prohibition is a “content- and speaker-based restriction on speech,” noting that the law does not prohibit employers from considering such information but prohibits reporting agencies from providing such information. The U.S. Government has thus intervened, taking a contrary position to protect the constitutionality of the Act’s seven-year limitation. Employers must ensure that the consumer reporting agency they use performs searches that are in compliance with the Act in order to avoid being a co-defendant in a similar suit.