Challenging Polygraphs for Pre-Employment Screening

Abstract

Brotherhood of Locomotive Engineers and Illinois Central Gulf Railroad, PLB 3538, No. 2 (NMB, July 3, 1984) examined the use of polygraph testing on employees after hiring in deciding whether the employee’s actions were consistent with policies and regulations. In this matter, an employee who significantly deviated from safety policies was subjected to a polygraph in spite of the determination that his actions were not cause for a serious accident (the accident was determined to be caused by mechanical defect).  The court determined that the polygraph was relevant to the investigation into the accident and that the employee’s behavior and actions prior to the accident were sufficiently irresponsible to warrant termination in spite of the lack of correlation between the employee’s behavior-based safety and the resulting accident.

Anderson v. City of Philadelphia, 845 F.2d 1216 (3d Cir. 1988) determined that pre-employment use of polygraph testing held a legitimate public policy interest and that the claimed violations asserted by the plaintiffs were not valid based on (1) the plaintiffs never had a due process violation because they did not yet have the employment necessary to assert such a claim and consequently were never denied their property interest; (2) their liberties were never impacted because the results of the polygraph were never made public information and, therefore, they did not have a public stigmatization of being labeled a liar or less-than-honest individual; (3) the plaintiffs did not prove that the polygraph was not a legitimate state interest; and (4) they did not prove that utilizing a polygraph for pre-employment screening did not result in a better qualified group of public employees.

Challenging Polygraphs for Pre-Employment Screening 

Utilizing polygraph testing to determine whether a potential hire is fit to hold the position has been questioned historically on the basis that such testing is strictly subject to a machine with no accommodation for human emotions or reactions. The ultimate result obtained from a polygraph machine measures the stress responses of the examinee without considering the individual differences in how people respond to stress and their underlying understanding of what the polygraph will measure, i.e., whether their increased perspiration may indicate falsification of answers or nervousness indicating whether they are honest. Consequently, the validity of the polygraph has been held to task because the machine is just that—a machine. With no or little consideration for individual responses to stressors unrelated to the examination, there seems to be no real basis for ensuring standardized readings. Further, there is little scientific support that such an extreme measure provides a better-qualified employee. While administering polygraphs for pre- or post-employment considerations is illegal, exemptions are permitted for public interest positions such as when the duties of a particular job require close interaction with the public and where the public relies on that individual for safety. Understanding the characters and propensities of people can be critical. It is against the public interest, for example, to put into teaching positions those who have a history of pedophilia, a police officer who may have a history of breaking the law, or an individual charged with a drug violation being in a position to distribute or administer controlled substances.

These questions as to the validity of polygraph screening for employment has led to legislation which prohibits utilizing such measures in screening job candidates, and violations of those protections may result in fines imposed on the violating employer. However, the laws take into account the necessity of identifying potentially dangerous individuals seeking employment as trusted public employees or in federal government jobs. The federal courts have remained relatively consistent in their interpretation as to whether polygraph testing for employment purposes violates individual rights. The opinion in Brotherhood of Locomotive Engineers and Illinois Central Gulf Railroad was that the polygraph testing was legitimate because of the impact on the public safety. Such measures without cause would likely be successfully challenged since a background investigation to predict future behaviors would not likely have been accurate. However, because the accident prompted an investigation, the polygraph was a natural component to determine the facts and circumstances. That the polygraph disclosed other issues which could have significant future risks resulted in a legitimate termination of employment, and the irresponsible actions of the employee was the cause rather than a supposition of future actions. 

Continuing that holding in Anderson v. City of Philadelphia, the case of pre-employment screening for positions which serve the public good follow the court’s original determination that there should be exceptions to when polygraph testing is considered appropriate. Because the police force applicants would be, upon employment, charged with upholding the law and also would likely be subjected regularly to potentials for corruption, determination of previous illegal or deceptive activities could predict the likelihood of future illegal or deceptive activities. Not only is it in the public interest that the upholders of the laws should be law-abiding, but it is also in the public interest to ensure that the individuals charged with cleaning crime from the areas should not have a predisposition to corruption. 

Dicta in both cases point to the necessity, in some employment positions, that the holders of those positions be above question. Whether a polygraph can really identify, or weed out, potentially bad employees or identify with any real certainty good employees remains to be seen. However, as the courts have noted, the ability to determine that a potential employee with certain prior behaviors which would be in conflict with the duties of the sought-after position should be eliminated from consideration for the public good. In essence, the rights of the public outweigh the rights of the employee when the employee is seeking a position which could detrimentally impact the public.

Works Cited

Anderson v. City of Philadelphia, 845 F.2d 1216 (3d Cir. 1988). 

Brotherhood of Locomotive Engineers and Illinois Central Gulf Railroad, PLB 3538, No. 2 (NMB, July 3, 1984).