Reference no: EM131281653
Pennsylvania law forbids the use of polygraph testing for preemployment screening by any private or public employer. An exception exists, however, for public law enforcement agencies. The city of Philadelphia police and prison departments base their hiring on the results of a competitive civil service examination, with individuals passing this test being placed on a certified eligibility list.
As openings occur, individuals ranked high on the eligibility lists are notified and must then pass a number of additional tests before being found qualified for employment. These additional tests include a medical examination; a psychiatric examination; a background investigation; and, usually last in the process, a polygraph test. As part of the background investigation, candidates must fill out a Personal Data Questionnaire (PDQ), which includes questions about family and financial status; driving record; educational and employment history; criminal record; use of alcoholic beverages; and the use, sale, and possession of illicit drugs.
Candidates are given prior notification of the content of the PDQ, including the questions relating to illicit drugs. Candidates are also informed that deception or falsification in answering PDQ/polygraph questions may result in rejection. The police and prison departments will hire otherwise qualified individuals who admit that they have used or possessed drugs over six months before completing the PDQ and taking the polygraph. The plaintiffs claim that the use of the polygraph test results to deny them employment deprives them of their constitutional rights to procedural and substantive due process and equal protection of the law. After a bench trial, the district court held in favor of the plaintiffs and the city appealed.] STAPLETON, C. J.... I. ...
The polygraph testing procedures currently used by both the police and prison departments were developed in 1983 in the course of settling class actions by blacks and Hispanics who had brought suit alleging that the Philadelphia Police Department's hiring and promotion policies were discriminatory. These settlements require the above-described prior notification concerning the PDQ/polygraph questions, and require that if during the test the polygraph examiner finds the applicant "deceptive," the applicant must be told immediately and given a chance to explain, deny, or admit the deception.
If the applicant denies being deceptive, or if the explanation is found unsatisfactory by the examiner, the applicant must have the opportunity to retake the test with a second examiner. The second examiner does not review the results of the first prior to readministering the polygraph. If the second examiner finds no deception, the applicant is considered to have passed; if the second examiner also finds the applicant deceptive, that finding is ordinarily final and preclusive of employment. The applicant may, however, appeal to either the Police Department's Review Panel or to the Superintendent of Prisons or the prison review panel, and the reviewers may decide to give the applicant the opportunity to take a third test. If the applicant is found deceptive on a third test, he or she will not be hired.
Deception is found on about half of all the tests given. During a pre-test interview, applicants are asked if there is any other information they would like to provide. During a post-test review, if deception is indicated, they are asked again if there is any information they are withholding. Admissions to disqualifying information were made during these interviews by 315 of the 1028 applicants for positions with the Police Department in 1985, and 251 of the 619 applicants in 1986. ... The results of the tests are not made public, but are used only within the departments for evaluating the suitability of the applicant for employment. There is considerable controversy about the validity and reliability of polygraph testing. The polygraph measures stress or anxiety, which in many cases may not correlate very well with deception.
In 1983, Congress' Office of Technology Assessment put out a Technical Memorandum on polygraph testing, which read in part as follows: There are two major reasons why an overall measure of validity is not possible. First, the polygraph test is, in reality, a very complex process that is much more than the instrument. Although the instrument is essentially the same for all applications, the types of individuals tested, training of the examiner, purpose of the test, and types of questions asked, among other factors, can differ substantially.
A polygraph test requires that the examiner infer deception or truthfulness based on a comparison of the person's physiological responses to various questions.... Second, the research on polygraph validity varies widely in terms of not only results, but also in the quality of research design and methodology. Thus, conclusions about scientific validity can be made only in the context of specific applications and even then must be tempered by the limitations of available research evidence. ... OTA concluded that the available research evidence does not establish the scientific validity of the polygraph test for personnel security screening. ...
[D]espite many decades of judicial, legislative, and scientific discussion, no consensus has emerged about the accuracy of polygraph tests. App. at 618, 652, Professor Leonard Saxe, who headed the OTA group, testified as an expert witness for the plaintiffs. According to Professor Saxe, polygraph tests are likely to find many truthful applicants deceptive (false positives) and some unknown lesser, though "potentially large," number of deceptive applicants truthful (false negatives). App. at 344.
When polygraphs are used for pre-employment screening, the risk of false positive results is generally thought to be higher than that of false negative results. The City's law enforcement departments consider polygraph tests reliable and valid. An additional advantage of using the polygraph test, in the department's view, is that it encourages applicants to be candid in responding to questions on the PDQ. The departments do not believe that this secondary advantage can be separated from the trustworthiness that they consider to be the main advantage of the polygraph. Both advantages, the departments believe, enable them to acquire necessary information about potential employees.
The department's experts do admit that polygraph testing is not perfect. While they recognize the impossibility of conducting error-free polygraph testing, however, they correctly point out that there is no evidence establishing that the polygraph is not valid. Moreover, they point out that there must be some method of acquiring the information necessary to make choices among applicants and stress that the decision to utilize a polygraph examination must be evaluated in light of the available alternatives.
One of the department's experts, Dr. Frank Horvath, noted that there is also little scientific support for many of the procedures which are used in employment screening. There is little "scientific" evidence, for instance, to show that background investigations actually yield accurate information or that psychiatric interviews accurately discriminate between "good" and "bad" candidates.
On the other hand, there is considerable scientific data to show that personal interviews as generally used in employment screening are unreliable; yet, employers continue to carry out such interviews. Written psychological tests, moreover, have received considerable research attention which, according to many, shows little scientific support for their use. App. at 398.... III. We next address the plaintiffs' argument that they have been denied equal protection of the law.... The plaintiffs bear the burden of proof on this issue, and so must show that the requirements imposed by law or regulation "so lack rationality that they constitute a constitutionally impermissible denial of equal protection." Rogin v. Bensalem Township, 616 F.2d 680, 688 (3d Cir. 1980).
In considering this issue, we bear in mind the Court's statement that a statute or regulation should not be overturned on equal protection grounds "unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational."Vance v. Bradley, 440 U.S. 93, 97 (1979). The defendants stress, and the plaintiffs acknowledge, that the public has a legitimate and, indeed, compelling interest in hiring applicants who are qualified for employment as public law enforcement officers.
It is this interest that the polygraph requirement is said to serve. The key question we confront here, therefore, is whether the requirement that applicants pass a polygraph test can arguably be said to result in a better-qualified group of new employees. The defendant City departments need not show that the polygraph requirement does in fact result in the selection of a better-qualified group of new employees. Rather, the burden is on the plaintiff applicants to show that the department's use of the polygraph could not reasonably be believed to produce a better-qualified group of new hires than would be chosen absent the polygraph requirement.
It is clear that the district court placed the burden on the wrong party in this case, since a necessary stepping-stone to that court's holding was its conclusion that "[t]he testimony, exhibits and evidence presented at the trial failed to prove the reliability of polygraph tests in general." App. at 706, 709.... Professor Saxe's testimony supports the proposition that the validity and reliability of polygraph testing as a device to screen prospective employees have not been scientifically established. It does not demonstrate, however, that it is irrational to believe that the polygraph has utility in connection with the selection of law enforcement officers.
First, Professor Saxe acknowledges that "virtually no research has been conducted on the validity of polygraph tests to screen prospective employees." App. at 354, and it is, accordingly, apparent that such testing has not been empirically established as invalid or unreliable.
Moreover, Professor Saxe does not dispute that preemployment polygraph screening is widely used by intelligence and law enforcement agencies which consider it useful in eliminating unqualified candidates. The record indicates that such screening is used by the National Security Administration, the Central Intelligence Agency, and approximately 50% of police departments throughout the nation.
Finally, Professor Saxe does not dispute Dr. Horvath's assertion that "both proponents and opponents maintain that such testing can distinguish between truthful and deceptive persons with an accuracy greater than chance." App. at 394.... ... As Dr. Horvath put it, the important practical issue is not whether polygraph testing is 95% or 90% or even 70% accurate but whether relative to other methods it yields a reasonable degree of accuracy and whether there is another more suitable method of accomplishing the same objective. App. at 397.
The record in this case provides no basis for concluding that superior alternatives are available. ... [W]e think it rational for the departments to believe that the polygraph requirement results in fuller, more candid disclosures on the PDQ and thus provides additional information that is helpful in selecting qualified law enforcement officers. In sum, from the plaintiffs' perspective, the most that can be said on the basis of this record is that the utility of polygraph testing in the preemployment screening of candidates for law enforcement positions is a debatable and much-debated issue. In such situations, legislators and administrators are free to exercise their judgment regarding the manner in which the public interest will best be served....
Accordingly, we conclude that in the absence of a scientific consensus, reasonable law enforcement administrators may choose to include a polygraph requirement in their hiring process without offending the equal protection clause.
IV. For the foregoing reasons, we reverse the judgment of the district court and remand with instructions that judgment be entered for the defendants
Case Questions
1. Did the congressional Office of Technology Assessment Memorandum conclude that the evidence established the scientific validity of polygraph tests for personnel security screening?
2. Does the city believe that polygraph tests encourage applicants to be candid in responding to questions on the PDQ?
3. Was it important to the outcome of this case that the plaintiffs had the burden of proof?