Congress moves toward limiting employer use of lie detectors
Sens. Orrin Hatch and Edward Kennedy, poles apart in political philosophy, jointly introduced legislation this week proposing strong curtailment of the use of so-called lie detectors. ``This legislation is a fundamental issue of worker's rights,'' says Senator Kennedy (D) of Massachusetts. ``Last year over 2 million workers were strapped to these inaccurate instruments of intimidation.''
Last year the House of Representatives passed, 236 to 173, a bill proposed by Rep. Pat Williams (D) of Montana that would have banned private-sector employers from forcing employees to take polygraph tests in all but a few circumstances. Also last year, the Senate Labor and Human Resources Committee reported out the Hatch-Kennedy bill by a margin of 11 to 5.
Congress adjourned, however, before full action could be taken in the Senate.
``The act would ban the use of pre-employment polygraph exams but would permit regulated tests by all employers in instances involving economic loss or injury to an employer,'' says Senator Hatch (R) of Utah. ``The bill attempts to strike a balance between our interest in protecting the rights of working men and women from being wrongly condemned by a faulty lie detector test and the need of employers to have some tools to combat crime in the workplace.''
Under the bill, no employer could use a polygraph for any pre-employment testing of job applicants or random testing of employees.
But employers could use the polygraph to investigate specific economic losses by testing employees who had access to the property under investigation and who they have reasonable suspicion to believe were involved in the incident.
The employer would have to file a police report, an insurance claim, or a report to a regulatory agency or sign a written statement detailing the basis for the polygraph test before requesting that any employee take the test. And the test could only be conducted under carefully prescribed circumstances.
No employee could be disciplined or dismissed for refusing the test or failing the test without additional supporting evidence.
The bill does not apply to federal, state, or local governments.
Leonard Saxe, a Boston University psychologist, says the polygraph is not a lie detector but is, ``more precisely, a fear detector.'' A polygraph ``measures stress. Lying can cause stress, but so can shame, guilt, and embarrassment,'' says Dr. Saxe, who led the research team that compiled data to support the Hatch-Kennedy bill.
According to Saxe, smooth liars pass polygraph tests and nervous innocents flunk them.
Saxe conducted a series of experiments with polygraphs under two conditions. In one situation he convinced subjects of the polygraph's infallibility and demonstrated its ability to detect deception. In the other situation he indicated to the subjects that the machine was fallible and demonstrated how a person could lie and not be detected.
He says the results were ``clear-cut.'' When subjects believed that the polygraph test was infallible, high rates of guilty detection resulted. When subjects thought the machine was fallible, however, the result was no detection of guilty subjects.
``Our findings strongly indicate that fear of detection is key to the conduct of polygraph tests. The polygraph is, thus, a placebo rather than an effective treatment,'' Saxe says.
The American Polygraph Association, however, says it believes polygraph testing can prevent thievery. ``We are supportive of regulation as opposed to prohibition,'' says association spokesman Joseph Buckley. ``We realize it can't be a catch-all for dishonesty. But focused on job-related inquiries, it's a very important tool.''
Mr. Buckley says this is particularly true for the securities and banking industries.
``The best of all worlds would be no exemptions [from taking polygraph tests],'' says American Bankers Association spokesman John Byrne. ``But if the choice is ban or limited use, we'll take limited use.''
But even limited use is problematic, Saxe says. ``Problems arise when subjects do not share the examiner's unequivocal belief in the divining-rod capabilities of the machine.''
He adds that use of the machines for pre-employment screening amounts to ``fishing expeditions'' having no scientific validity.
If passed by the Senate, the Hatch-Kennedy bill will go to a House-Senate conference for reconciliation with the House bill passed last year. The committee's product would then go back to each chamber for final approval.