A Lawyer will do anything to win a case, sometimes he will even tell the truth. -- Patrick Murray
During the past decade, more than two million private sector
employees each year were asked to take a "lie detector" test. Based
on these tests, approximately 300,000 workers annually were branded
liars and fired, disciplined or not hired as a result.
Despite the claims of "lie detector" examiners, there is no machine
that can detect lies with any degree of accuracy. The "lie detector"
does not measure truth-telling; it measures changes in blood
pressure, breath rate and perspiration rate, but those physiological
changes can be triggered by a wide range of emotions such as anger,
sadness, embarrassment and fear. In addition, a variety of medical
conditions such as colds, headaches and neurological and muscular
problems can distort the results. Indeed, as an American Medical
Association expert testified during public hearings before Congress,
"the [lie detector] cannot detect lies much better than a coin toss."
The ACLU has long favored protective legislation against
indiscriminate "lie detector" testing in the American workplace, not
only because it is unreliable, but also because it is an extreme
invasion of privacy. For example, in order to establish "normal"
physiological reactions of the person being tested, "lie detector"
examiners ask questions that purposely embarrass, frighten and
humiliate workers. An ACLU lawsuit in 1987 revealed that state
employees in North Carolina were routinely asked to answer such
questions as "When was the last time you unintentionally exposed
yourself after drinking?" and "Who was the last child that got you
sexy?" "Lie detectors" have been used by unscrupulous employers to
harass union organizers and whistleblowers, and to coerce employees
into "confessing" infractions they did not commit and falsely
implicating fellow employees.
For all of the above reasons, the ACLU strongly supported passage of
the Employee Polygraph Protection Act of 1988 (EPPA). As a result of
the new law, most employees will no longer be forced to endure a
humiliating and invasive process or have their jobs jeopardized by a
machine that does not work.
Here are the ACLU's answers to some questions frequently asked by the
public about "lie detector" testing and their rights under the new
** What does the Employee Polygraph Protection Act do?
The EPPA, with some exceptions, prohibits the use of "lie detectors"
by private sector employers involved in or affecting interstate
commerce. In the law, the term "lie detector" includes polygraphs,
deceptographs, voice stress analyzers and "any other similar device
that is used ... for the purpose of rendering a diagnostic opinion
regarding the honesty or dishonesty of an individual." The ban
applies to all random, and most preemployment, testing and will
eliminate about 80 percent of the testing done in the private sector
in the past. The EPPA does not prohibit drug tests or written honesty
Under the EPPA, employers may not require, request, suggest or cause
any employee or applicant to submit to a "lie detector" test, nor may
they discharge, discipline or discriminate against any employee or
job applicant for refusing to take such a test, for "failing" such a
test, or for filing a complaint or exercising any other rights
conferred by the legislation. The EPPA also requires employers to
post a notice informing employees of the Act's provisions in a
conspicuous place at the work site.
** Are there and exceptions to the ban on "lie detectors"?
Yes. The EPPA does not prohibit "lie detector" testing in certain
* The Act does no prohibit "lie detector" testing of federal, state
and local government employees.
* The federal government may administer "lie detector" tests to
certain government contractors engaged in national security-related
* Private security firms and companies that manufacture and
distribute pharmaceuticals may test certain job applicants.
* Any employer may administer "lie detector" tests in connection with
an ongoing investigation of an economic loss or injury to his/her
business on these conditions: The employee under suspicion must have
had access to the property, and the employer must state in writing
the basis for a reasonable suspicion that the employee is guilty.
United States Department of Labor regulations, which can be obtained
from your local Wage and Hour Division of the U.S. Department of
Labor, explain in detail what categories of employees or potential
employees can be tested and under what circumstances. ** Does the
EPPA protect those employees who are tested from the worst abuses and
misuses of the "lie detector" test?
Yes, even those employees who are tested are afforded a wide range of
rights under the EPPA. Under the Act, the results of the "lie
detector" test cannot be the _sole_ basis for an employer's action
against an employee. Second, _during all phases_ of the testing, the
employee is granted the rights:
* to stop the test at any time;
* not to be asked questions in a degrading or needlessly intrusive
* not to be asked questions about beliefs, opinions or affiliations
in the areas of religion, racial matters, politics, sexual behavior,
or the lawful activities of labor organizations;
* to decline to take the test based on evidence that a medical or
psychological condition might cause abnormal test responses.
Furthermore, _before the test is administered_ to an employee, that
employee must be given the following information in writing:
1) the date, time and location of the test, and notice of the right
to consult with legal counsel or an employee representative before
each phase of the test;
2) a list of all questions to be asked during the test;
3) the nature and characteristics of the tests and of the
4) the design of the testing area -- whether it has a two-way
mirror, a camera, or any other device through which the test can be
observed; 5) notice that either the employee or the employer may,
with the other's knowledge and consent, make a recording of the test.
During the test, the examiner may not pose any questions that were
not presented in writing to the employee before the test. And _after
the test,_ before any adverse action can be taken, the employer must
further interview the employee on the basis of the test results and
provide him or her with a written copy of the test results.
** Who has access to "lie detector" test results?
The EPPA prohibits the disclosure of test results to anyone other
than the employer who ordered the test, the employee, a court,
government agency, arbitrator or mediator pursuant to court order.
Moreover, old test results cannot be divulged to a prospective
** What effect does the EPPA have on existing state and local laws?
More restrictive state laws or collective bargaining agreements will
take precedence over the new federal law. For information about the
law in your state or city, contact your local ACLU office, listed in
the telephone directory. Detailed questions may be addressed to your
local Wage and Hour Division of the U.S. Department of Labor. ** How
can I assert my rights under the EPPA?
Your rights as an employee under the EPPA can be asserted and
enforced in two ways: through legal action brought by the U.S.
Secretary of Labor, or through a private lawsuit initiated by you as
a wronged employee or prospective employee.
The Secretary of Labor is the federal official in charge of
implementing and enforcing the EPPA. On being notified by you of a
violation of the Act, the Secretary can bring an action in federal
court for injunctive relief and civil penalties. If the Secretary's
case is proved, the court may order the offending employer to stop
the unlawful use of "lie detector" tests, and to reinstate you with
back pay. The court may also fine the employer up to $10,000. The
U.S. Department of Labor has regional offices throughout the country
to which you can report an abuse, and they are listed in the
The EPPA also authorizes private civil actions in state or federal
court, but such a legal action must be filed within three years of
the alleged violation. If you win a lawsuit, the employer may be
ordered to hire or reinstate you with back pay and may have to pay
for your costs and legal fees. If you are contemplating bringing a
lawsuit, call your local ACLU for advice.
** Since the EPPA does not cover government employees, what
protection do they have from "lie detector" abuse?
Government employees have not been subjected to "lie detector" tests
to the same extent as private sector employees; 98 percent of the
estimated two million "lie detector" tests given each year in the
recent past were administered in the private sector. Government
employees are less likely to be asked to take such tests because they
are protected by civil service rules, by the constitutional
prohibitions against unreasonable searches and self-incrimination,
and by state laws in some states. These protections, however, are not
as complete as those afforded by the EPPA. The ACLU continues to
lobby Congress to extend EPPA protections to government employees,
and to represent those employees in court against "lie detector"
** In the wake of the EPPA, are employers devising other methods for
detecting employee dishonesty?
Yes. Paper and pen tests, also called "honesty" or "personality"
tests, which are not banned by the EPPA, are becoming increasingly
popular with employers -- particularly the managers of large
businesses. Many of the questions asked in these written tests are
also extraordinarily intrusive. For example, the Minnesota
Multiphasic Personality Inventory (MMPI) includes the following "yes"
or "no" questions: "I have no difficulty in starting or holding my
bowel movements"; "I am very strongly attracted by members of my own
sex": "I believe in the second coming of Christ": and, "There is
something wrong with my sex organs." This test, which has long been
used in psychiatry as a diagnostic tool, is, in our view, wholly
inappropriate when used routinely by employers.
Paper and pen tests in the workplace present the same problems that
are inherent in mechanical "lie detector" testing: They have no
scientific validity for detecting lies in a particular situation, and
they pry into extremely private matters such as an individual's
religious beliefs and sexuality. The Office of Technology Assessment
of the U.S. Congress is studying the ethical and social implication
of written "honesty" tests and their use in the workplace.
The ACLU opposes all workplace tests that violate privacy or require
workers to divulge personal information that is not relevant to job
** If employers cannot use "lie detectors," what can they do to
combat employee dishonesty and theft?
First of all, there is no convincing evidence that widespread use of
"lie detector" tests in the workplace actually reduced dishonesty and
theft. Those states that restricted "lie detector" testing for a
number of years did not have a higher rate of employee theft than
states that allowed it.
Second, employers have a variety of alternative techniques at their
disposal that are not overly intrusive. They can do what good
managers have been doing all along -- check references before hiring,
maintain good security and inventory controls and, above all, treat
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