Judge Grants MTD in FCRA Case Over Background Check Disclosure

A District Court judge in Massachusetts has granted a defendant’s motion to dismiss after it was sued for allegedly violating the Fair Credit Reporting Act because it included “extraneous” information on a background check disclosure form, ruling that the plaintiff never alleged that the information “caused any actual confusion.”

A copy of the ruling in the case of Kenn v. Eascare Inc., can be accessed by clicking here.

The plaintiff signed a disclosure form and authorization during the hiring process that granted the defendant permission to conduct a background check. There was a second page to the form, which included a liability waiver that indemnified the defendant and the company conducting the check.

The plaintiff subsequently alleged she was the subject of sexually offensive statements being made by her co-workers. She complained and an investigation was conducted, which confirmed the statements. However, no further action was taken to resolve the complaint, and after a suggestion was made to transfer to another location, the plaintiff decided to resign.

She filed a lawsuit, alleging, among other violations, that including the liability waiver and other information on the stand-alone disclosure form was a violation of the FCRA.

The defendant argued in its motion that the plaintiff had not satisfied the injury-in-fact requirement under Article III of the Constitution, which requires that a concrete injury must be suffered in order to confer standing for a plaintiff to file a lawsuit in federal court.

Under the FCRA, employers must provide a stand-alone disclosure form when seeking authorization to conduct a background check. There is a split, however, in determining whether the failure to provide the form in such a manner rises to the level of a concrete injury. Judge Allison Burroughs of the District Court for the District of Massachusetts, is squarely in the camp of those who think it does not.

“The Court respectfully disagrees that the inclusion of additional information or documentation, such as a liability waiver, in a disclosure notice automatically constitutes a sufficiently concrete injury,” she wrote in granting the motion to dismiss.

Because the plaintiff never alleged to have been confused or unaware of the document she signed when she granted the defendant permission to conduct the background check, she can not claim to have been injured by it, Judge Burroughs ruled. “Ultimately, Plaintiff’s allegation of an informational injury fails because she has not alleged that ‘the extraneous language, allegedly contained in the Disclosure Form, caused any actual confusion about whether her personal information would be made available for a background check,’ ” she wrote.

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