POLYGRAPHS IN THE WORKPLACE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00530R000601590004-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 24
• Document Creation Date: December 27, 2016
• Document Release Date: January 2, 2013
• Sequence Number: 4
• Publication Date: June 19, 1987
• Content Type: MISC

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S. HRG. 100-185
'i. POLYGRAPHS IN THE WORKPLACE v
HEARING
BEFORE THE
SGOIA04 COMMITTEE ON
LABOR AND HUMAN RESOURCES S.
UNITED STATES SENATE
ONE HUNDREDTH CONGRESS
FIRST SESSION
ON
REVIEWING THE USE AND ABUSE OF POLYGRAPH TESTING IN THE
WORKPLACE
JUNE 19, 1987
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OCT 08 195)7
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Printed for the use of the Committee on Labor and Human Resources
U.S. GOVERNMENT PRINTING OFFICE
75-442 WASHINGTON : 1987
For sale by the Superintendent of Documents, Congressional Sales Office
U.S. Government Printing Office, Washington, DC 20402
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?,4111 '1
042
COMMITTEE ON LABOR AND HUMAN RESOURCES
EDWARD M. KENNEDY, Massachusetts, Chairman
LAIBORNE PELL, Rhode Island
OWARD M. METZENBAUM, Ohio
'ARK M. MATSUNAGA, Hawaii
RRISTOPHER J. DODD, Connecticut
kUL SIMON, Illinois
3M HARKIN, Iowa
ROCK ADAMS, Washington
ARBARA A. MIKULSKI, Maryland
THOMAS M. ROLLINS, Staff Director and Chief Counsel
HAYDEN G. BRYAN, Minority Staff Director
ORRIN G. HATCH, Utah
ROBERT T. STAFFORD, Vermont
DAN QUAYLE, Indiana
STROM THURMOND, South Carolina
LOWELL P. WF1CKER, JR., Connecticut
THAD COCHRAN, Mississippi
GORDON J. HUMPHREY, New Hampshire
(H)
CONTENTS
STATEMENTS
FRIDAY, JUNE 19, 1987
Abrams, Robert, attorney general, State of New York; Ernest DuBester, AFL-
CIO, Washington, DC; and Dr. John S. Beary III, American Medical Asso-
ciation, Washington, DC
Prepared statement of:
Mr. DuBester
Dr. Beary (with attachments)
Acuff, Stewart, and GSEA Local 1985, of the Service Employees International
Union, AFL-CIO, prepared statement
American Pharmaceutical Association, prepared statement
American Trucking Associations, prepared statement
Goldberg, Judy, legislative representative, American Civil Liberties Union,
prepared statement
International Brotherhood of Electrical Workers, AFL-CIO, prepared state-
ment
Multi-Housing Laundry Association, prepared statement
National Association of Showroom Merchandisers (NACSM), prepared state-
ment
Perlman, Floyd S., prepared statement
Scheve, William J., Jr., American Polygraph Association; William Zierden,
Circuit City Stores, Inc., on behalf of the Chamber of Commerce Polygraph
Coalition; and Richard C. Sullivan, Conrail, vice president, resource devel-
opment
Prepared statement of:
Mr. Scheve
Mr. Zierden
Mr. Sullivan
Securities Industry Association, prepared statement
Wilson, Donald T., director, Government Relations, National Tire Dealers and
Retreaders Association, Inc., prepared statement
Wynn, William H., international president, United Food and Commercial
Workers International Union, and Robert F. Harbrant, president, Food and
Allied Service Trades Department, AFL-CIO, prepared statement
ADDITIONAL MATERIAL
Page
2
8
17
110
109
150
170
87
114
90
83
38
43
66
71
95
105
119
Articles, publications, etc.:
ACLU polygraph examiners survey _ 78
Questions and answers:
Response of Mr. Scheve to a question submitted by Senator Kennedy 61
Response of Mr. Zierden to questions submitted by Senator Kennedy 85
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POLYGRAPHS IN THE WORKPLACE
FRIDAY, JUNE 19, 1987
U.S. SENATE,
COMMITTEE ON LABOR AND HUMAN RESOURCES,
Washington, DC
The Committee met, pursuant to notice, at 10:15 a.m., in room
SD-430, Dirksen Senate Office Building, Senator Edward M. Ken-
nedy (Chairman of the Committee) presiding.
Present: Senators Kennedy, Thurmond, and Humphrey.
OPENING STATEMENT OF SENATOR KENNEDY
The CHAIRMAN. The hearing will come to order with some televi-
sion footage from WDBM, Channel 9 in Washington, NBC TV;
WCAU TV, Channel 10 in Philadelphia; and "60 Minutes" of CBS.
I think the video clip speaks volumes about the problem we are
facing in the workplace today.
The use and abuse of the so-called lie detectors has reached truly
alarming proportions. Experts project that over 2 million of these
tests are administered annually. The vast majority of these tests
are not being administered to criminals, or even spies. The vast
bulk of the polygraph testing today is being done by private em-
ployers testing ordinary workers.
This testing is being conducted despite the overwhelming consen-
sus in the scientific community that there is no physiological re-
sponse indicative either of truth or deception.
We have known this for some time. A House Government Affairs
Subcommittee found over 20 years ago:
There is no lie detector, neither machine or human. People have been deceived by
a myth that a metal box in the hands of an investigator can detect truth from de-
ception.
In 1983 the Office of Technology Assessment concluded:
While there is some evidence for the validity of polygraph testing as an adjunct to
criminal investigations, there is very little research or scientific evidence to estab-
lish polygraph test validity in screening situations, whether they be preemployment,
preclearance, periodic or aperiodic, random or dragnet.
Last year the House passed Congressman Pat Williams' Poly-
graph Prohibition Act by a convincing margin. The Senate Labor
Committee reported out similar legislation introduced by Senator
Hatch and myself by an 11-5 bipartisan vote.
Time ran out last year on us in the Senate, but it will not slip by
this year. Legislation protecting the millions of Americans subject-
ed to what the late Sam Ervin referred to as the "twentieth centu-
ry witch craft" is necessary now more than ever.
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Today we will hear from both proponents and opponents of poly-
raphs, from the users, the practitioners, law enforcement, employ-
e representatives, and the scientific community. Hopefully the tes-
imony we hear today, coupled with the hearing on this issue last
ear, will guide the Committee as we craft a legislative solution to
his national employment disgrace.
We will move ahead now with the video presentation.
[Video presentation.]
The CHAIRMAN. We are delighted to welcome to our hearing this
norning our first panel, the distinguished Attorney General from
,Tew York, Bob Abrams; Mr. Ernest DuBester of the AFL-CIO, and
)r. John Beary on behalf of the American Medical Association.
Velcome, gentlemen.
I want to say, it is a special pleasure to see the Attorney Gener-
1, Bob Abrams, who I have had the great pleasure of knowing for
number of years and working on a number of different matters
s a member of the Judiciary Committee. We know of his very dis-
inguished service as the Attorney General of New York.
We are glad to have you back. We know how active you have
,een on this issue and we look forward to your testimony. We will
tart with you, Attorney General Abrams.
,TATEMENTS OF ROBERT ABRAMS, ATTORNEY GENERAL, STATE
OF NEW YORK; ERNEST DUBESTER, AFL-CIO, WASHINGTON,
DC; AND DR. JOHN S. BEARY III, AMERICAN MEDICAL ASSOCIA-
TION, WASHINGTON, DC
Mr. ABRAMS. Thank you very much, Senator Kennedy. I am de-
ighted to receive your invitation to be here today. Accompanying
s Assistant Attorney General Jane Laver Barker, who is the
)erson in charge of our Labor Bureau that has been supervising a
ot of the reports and investigations that we have had on this issue.
To testify today about the need for Federal legislation banning
,mployers from using lie detector tests to screen job applicants and
o interrogate employees is an important responsibility of mine and
thank you, Senator Kennedy, and the members of your Commit-
ee for allowing me and my fellow panelists to focus on this very
mportant issue.
Almost two million American employees are subjected to poly-
;raph testing each year as a condition of employment. The jobs and
he reputations of these people thus rest on the use of a device
vhich I and many others believe is little better than tea leaf read-
ng or crystal ball gazing. The list of authorities condemning the
)olygraph as unreliable and inaccurate is daunting.
The Federal Office of Technology Assessment in a comprehensive
tudy issued three and a half years ago, which you made reference
o in your own opening statement, found no evidence to establish
he scientific validity of polygraphs when used for personnel
-creening. The American Medical Association has condemned as
inscientific the use of the polygraph test in the employment set-
ing.
The , Defense Department's top physician has recommended
tiainst its use for defense employees. Federal courts have disap-
)roved of the use of polygraph test results in criminal cases be-
cause the device lacks scientific credibility. The Office of Technolo-
gy Assessment found that even in the narrowest and most focused
type of inquiry a criminal investigation of a specific incident, poly-
graph tests incorrectly label as liars an average of 19 percent of
truthful people.
The error rate is far greater when the polygraph is used for per-
sonnel screening. However, even when using the conservative 19
percent estimate of the nearly 2 million employees and the appli-
cants for employment tested last year, we therefore have a mini-
mum of 400,000 honest people who were unfairly branded as liars
and will have had their lives scarred.
These mistakes occur because the machine does not and cannot
actually distinguish true statements from false ones. A polygraph
merely charts changes in a person's breathing, perspiration and
blood pressure as he or she responds to various questions. Since the
interpretation of these charts by the polygraph operator is, of ne-
cessity, a subjective process, the operator's prejudices, moods and
feelings can strongly influence and even determine the outcome of
the test.
For example, we have received complaints about a polygraph op-
erator who consistently fails a much higher percentage of black
subjects than white subjects.
Now, whether a person passes or fails the test also often depends
on the state of his or her health. People with breathing or heart
problems can show false reactions to questions and then fail the
test. In one case a long-time department store employee in my own
native city of New York who had a speech and breathing problem
was told by his doctor that his disability would render polygraph
measurements meaningless. Although the polygraph examiner was
informed of the doctor's opinion, the employee was forced to take
the test. He failed it and was fired despite an excellent employ-
ment record.
Not only are so-called lie detectors shockingly inaccurate, their
use constitutes one of the most significant threats to the fundamen-
tal right of privacy that we as Americans enjoy. President Carter's
privacy protection study of 1977 concluded that the polygraph is an
unreasonable invasion of the personal privacy that should be pro-
scribed. Those who take the test suffer the indignity of being at-
tached to a machine that scrutinizes their bodily functions and are
often then asked offensive questions about personal aspects of their
lives which are none of their employers business.
We have had complaints from people who have been interrogated
at length about their sexual habits, their religions, their relation-
ships with their spouses and families, their debts, their medical
and psychiatric histories, and other highly sensitive topics. Many
applicants and employees report that during polygraph examina-
tions they are asked questions about their marital status, arrest
records, and medical histories.
Employers may not legally ask these questions, because of State
and Federal civil rights and employment discrimination laws, and
courts in New York have taken the position that polygraph opera-
tors are agents of employers. Yet, many polygraph operators rou-
tinely elicit this information from test subjects and then pass it on
`o employers where it results in precisely the kind of discrimina-
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tion against the applicant or employee that these laws were passed
in the first place to eliminate.
There are other further abuses associated with polygraph tests.
The machine can be used as an instrument of coercion, as in the
case reported to my office of the employer who threatened Spanish
speaking employees with punishment by the Immigration Service
and the police unless they took the test or admitted to acts that
they did not in fact commit.
In one notorious case, 11 women were sexually abused and har-
assed while taking polygraph examinations in connection with jobs
in western New York in a convenience store chain. In another
case, a 16-year-old girl was hooked up to the machine for two and a
half hours in the basement of her workplace, sexually harassed,
and finally intimidated into confessing that she stole money from
the store where she worked when, in fact, no money was missing at
all.
The abuses inherent in this practice are compounded by the re-
fusal of many employers and examiners to tell the employees why
they failed the test. In order to protect the pseudo-scientific aura
surrounding their occupation, examiners are extremely secretive
about the test process and often refuse to disclose the areas in
which they claim an employee is lying. Thus employees are power-
less to clear their names because they do not know the nature of
the accusation against them and they cannot confront their accus-
ers.
Instead, the polygraph is therefore a judge and jury and there is
no appeal from its verdict.
For example, two women came to my office who had been fired
from a major department store where one had worked for 121/2
years and the other for 23 years. They had sterling records. They
received many bonuses and merit increases. They were highly re-
g?arded by their supervisors. Nevertheless, one day they were called
:0 the personnel office without any prior warning and they were
'orced to take polygraph tests right on the spot or they were told
:hey would be dismissed.
There had been no thefts in their departments, but they were se-
ected at random to take the polygraph as a control measure. Due
;0 their extreme nervousness and tension under the circumstances,
)oth failed the test and they were fired. These women do not know
mhy they failed, since the store refused to release the report it re-
:eived and to identify the polygrapher who performed the tests.
Both women are older workers who found it difficult to obtain
)ther employment, particularly since the store shares employee in-
'ormation with other stores and they were fired under a cloud of
iuspicion, even though there had been no incident or theft.
Being unjustly branded a liar by this gadget is a stigma that
;lings. It never lets go. It brands you forever. Whenever a person
vho has failed the test applies for a job, it is likely that he or she
mill be asked whether or not they ever failed or refused a lie detec-
-or test, or to take such a test. Paradoxically, a truthful answer to
.hat question may end any chance that that individual has for em-
)loyment.
We get many calls from frantic parents whose children failed
)olygraph exams and were fired from their very first jobs. Even
where the test were given at random and there was no evidence of
employee theft, these children may be branded as thieves for the
rest of their lives.
Federal legislation, therefore, is needed to stop this abuse. The
current State-by-State patchwork of laws and regulations has not
only permitted this practice to continue in all too many States,
such as my own, but has made it difficult if not impossible for
States which seek to prohibit the practice to enforce their laws.
For example, in New Jersey it is a crime for an employer to re-
quire an employee to take a lie detector test. But employers evade
New Jersey's law by sending employees to New York to be poly-
graphed. While the New Jersey Attorney General's Office has pros-
ecuted six such cases in the last 2 years, in many more instances
the practice continues undetected or is difficult to prove beyond a
reasonable doubt.
Employers with operations in both States will hire in New York,
supposedly for New York jobs, and then quickly transfer the new
employees to a New Jersey office or a New Jersey store.
The Connecticut Attorney General's Office reports similar prob-
lems in enforcing Connecticut's polygraph prohibitions. Polygraph
testing by employers is an appalling practice which must end.
While no one denies that the problem of inventory loss facing
American employers, the wholesale use of this device is no solu-
tion. It simply gives employers a false sense of security while de-
priving hundreds of thousands of honest Americans of their liveli-
hoods each year. I call upon you to protect the jobs and reputations
of millions of Americans by banning the use of this dangerous and
damaging pseudo-technology by employers.
The CHAIRMAN. Thank you very much, Attorney General
Abrams. We know you have been active in this field for many,
many years so we give special credence to your testimony.
We will continue with the panel and then come back to ques-
tions.
Mr. DuBester.
Mr. DUBESTER. Thank you, Mr. Chairman.
I appreciate the opportunity this morning to present the views of
the AFL-CIO on the use of polygraphs. This is one of today's fast-
est growing vehicles for employee intimidation and discrimination.
As you are well aware, Mr. Chairman, Congress has been consider-
ing bills on polygraph use going back at least to the 93d Congress.
Unfortunately, absent Congressional action on this subject, the
uses and abuses of polygraphs has been increasing alarmingly. In
the last 10 years the use of polygraphs has quadrupled four-fold,
and as you have acknowledged and Mr. Abrams has acknowledged,
the number of polygraph tests administered per year now numbers
about 2 million.
The vast majority of those tests, Mr. Chairman, are administered
to workers and job applicants by private employers, a number
larger than that administered by law enforcement agencies and
Government agencies combined.
While polygraphs are degrading and intimidating, the worst fea-
ture about them, of course, is that they just do not work. Even sup-
porters of polygraphs admit that they are wrong at least 10 percent
of the time. Giving them the benefit of the doubt, therefore, under
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ideal conditions,, as Mr. Abrams also has acknowledged, hundreds
of thousands, of Americans either lose their jobs or are denied em-
ployment opportunities not because of their work record but be-
cause of inaccurate tests.
These statistics are even more disturbing when you take into
consideration the large number of polygraph tests that are admin-
istered in the screening context of large numbers of people. Again,
Mr. Abrams has referred to the study by the nonpartisan Congres-
sional Office of Technology Assessment, which has indicated that
polygraph use is particularly inaccurate when polygraphs are used
for screening purposes.
Even the FBI does not believe that large-scale screening is an ap-
propriate use of the polygraph test and they have regulations re-
stricting the use of polygraphs for the screening of large numbers
of suspects.
You may recall last year, Mr. Chairman, that even polygraph ad-
vocates such as F. Lee Bailey acknowledged that polygraphs were
never intended to be used for preemployment screening. The shot-
gun-type questions that are asked during a typical preemployment
polygraph examination provoke responses that are beyond the
polygraph examiners ability to interpret.
But regardless of how one judges the merits of polygraphs as an
employment tool, one factor is clear, and that is coercion, whether
explicit or implied, is always a factor. Polygraphs may not be able
to distinguish truth from lies, but they certainly scare and intimi-
date people. As one polygrapher characterized them, they are the
best confession getters since the cattle prod. Employees and job ap-
plicants know that the refusal to volunteer for a test can cost them
their jobs.
One major reason we are told by proponents of polygraphs and
many employers that we should accept these abuses is to control
internal theft, which is, obviously, a serious and legitimate con-
cern. But unfortunately, Mr. Chairman, there is little reliable data
that the use of polygraphs can decrease theft. The Office of Tech-
nology Assessment, again, indicates that there does not appear to
be any formal cost-benefit analysis which shows that the use of
polygraphs reduces employee crime.
What is clear, however, is that profitable businesses can be run
without resorting to polygraphs. Many of the largest successful
companies do. In 21 States, including your State of Massachusetts,
Mr. Chairman, which already ban or restrict polygraph use there is
no comparative data to indicate that employers are unable to run
profitable businesses in those States.
In addition, I would refer you to a 1982 study commissioned by
the U.S. Department of Justice's National Institute of Justice
which concluded that assessing previous theft activity outside of
the working place through the use of polygraphs has little rel-
evance to future workplace behavior. However, checking on one's
previous pattern of employment history and dedication to former
employers are probably better indicators.
I would add, Mr. Chairman, that that study also noted that cor-
porate kickbacks, embezzlement and securities fraud, and insur-
ance fraud cost businesses three times more than employee theft.
? And shoplifting also represents more than half of the losses attrib-
utable to employee theft. Now, I daresay that there is not much
use of the polygraph in corporate board rooms, nor of customers.
I might add that I would not be suggesting that such uses be
made. This is a serious problem, but I think the best solution is to
have employers and workers combat the problem together and I
think the best tool that employers could use are good and effective
employment practices, and I would submit that polygraph testing,
Mr. Chairman, is not a good nor proper employment practice by
any defmition.
The second major argument we hear from proponents of the
polygraph use is that this is a matter that is best left to the States
to address and regulate. As you know, over 40 States and the Dis-
trict of Columbia have passed some kind of legislation affecting the
use of polygraph machines. But nonetheless, the incidence and
abuses of testing are escalating and increasing. As Mr. Abrams
noted, the results of State efforts are a confusing patchwork of
easily evaded restrictions, prohibitions, regulations and other li-
censing requirements.
Again, as Mr. Abrams illustrated, many employers can simply
skirt even the best of State laws by sending employees and job ap-
plicants to take tests in neighboring States with no restrictions. So
it is clear, Mr. Chairman, States are not protecting workers and job
seekers from the dangers of abusive and inaccurate lie detector
testing, and jobs are too important in today's economy and often
times too scarce to allow an inaccurate machine to dictate the em-
ployment fate of hundreds of thousands of Americans.
The time is long overdue for Congress to prohibit these inaccu-
rate and intrusive machines in the workplace. Only when that is
done will workers regain the dignity and self respect they deserve.
So I would join with Mr. Abrams, Mr. Chairman, in urging you and
this Committee to move expeditiously in reporting out a bill on
polygraph use and moving on to the Senate Floor.
Again, I thank you for this opportunity.
[The prepared statement of Mr. DuBester follows:]
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TESTIMONY OF ERNEST DuBESTER, LEGISLATIVE REPRESENTATIVE
AMERICAN FEDERATION OF LABOR a CONGRESS OF INDUSTRIAL ORGANIZATIONS
BEFORE THE COMMITTEE ON LABOR AND HUMAN RESOURCES, U.S. SENATE
ON THE ABUSE OF "LIE DETECTORS" /N EMPLOYMENT
June 19, 1987
Mr. Chairman, I appreciate this opportunity to present the
views of the AFL-CIO on the abuse of polygraphs and other so-called
"lie detectors" in America's workplaces.
Although the Constitution and the courts protect American
citizens from polygraphs in the hands of law enforcement officials,
American workers have no Federal protection whatsoever from "lie
detectors" in the hands of private employers. As a result,
employers administer over two million polygraph examinations every
year -- more than all police forces and intelligence agencies
combined.
To honest workers who just want to get or keep their jobs, a
polygraph test can be frightening and humiliating. Electrodes are
attached to the worker's fingers, a blood pressure cuff is wrapped
around one arm, and a pneumatic tube is strapped around the chest.
In some cases, a tube may be stretched around the worker's
throat to gauge swallowing and voice-muscle tension. Some of the
most "sophisticated" polygraphs are connected to chairs wired to
detect muscle pressure and body movements. Meanwhile, the polygraph
examiner
reputation
Is it
stands behind the chair, with the worker's future,
and job in his hands.
any wonder that one examiner called his polygraph "the
best confession-getter since the cattle prod"?
Once strapped to a polygraph, workers and job applicants are
frequently asked about family problems, levels of job satisfaction,
sexual preferences, personal finances, drinking habits, sexual
activities, political beliefs, marital relations, and union
activities. Polygraphs have also been used to force employees to
inform on their fellow workers and to discriminate against some
workers on the basis of race and gender. Unfortunately, many
workers and job seekers feel compelled to answer all of the
polygrapher's questions, because they know that refusal to answer
(or refusal to submit to the examination at all) can mean the loss
of a job.
"Lie detector" tests are frightening and degrading. But worst
of all, they don't work! The Congressional Office of Technology
Assessment, the American Psychological Association, the American
Medical Association and all objective investigators of polygraph
validity agree: "Lie detectors" cannot detect lies. And the result
is lost jobs for hundreds of thousands of honest workers and job
applicants.
Even proponents of "lie detector" testing admit that test
results can be wrong at least 10 percent of the time. Since more
than two million "lie detector" tests are administered in the
workplace every year, that means even under ideal conditions at
least 200,000 Americans may have their employment opportunities
terminated, curtailed or blocked -- not because of their work
records, but rather because employers rely on inaccurate "lie
detector" tests.
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Employers use polygraphs extensively to screen job applicants
and to screen large numbers of employees during investigations of
suspected theft. Roughly three-quarters of the polygraph tests
administered by private employers are preemployment screening tests.
The polygraph is inaccurate under ideal conditions. But it is
a farce when used in preemployment screening. The Congressional
Office of Technology Assessment concluded in a report published in
1983 that "there is very little research or scientific evidence
Unfortunately, to many employers, the accuracy of the polygraph
is not important. What is important is the machine's ability to
. intimidate and coerce. We have heard of employers who tell
polygraphers that if their employees do not come out of the
examination room in tears, the polygrapher has not done his job.
"Lie detectors" may not be able to distinguish truth from lies,
but they do scare people. Polygraphers report that 90 percent of
to the information obtained from a
establish polygraph test validity in large-scale screening . . .
situations, whether they be preemployment, preclearance, periodic or
aperiodic, random or 'dragnet.'"
Even the F.B.I., which uses polygraphs to investigate crimes,
does not believe large scale screening is an appropriate use of the
polygraph. Such use is prohibited by internal F.B.I. regulations.
Polygraphers themselves often admit that the polygraph was
never intended to be used for preemployment screening. F. Lee
Bailey, a long-time polygraph advocate, was asked by this Committee
last year if the typical preemployment polygraph exam, which often
lasts no more than fifteen minutes, satisfies the requirements of a
proper polygraph exam. He replied that these exams are not
polygraph tests, that to call them such is a misnomer, and that the
questions in these tests tend to be shotgun and provoke responses
which are beyond the polygraph examiner's ability to interpret.
To make matters worse for job applicants, commercial
polygraphers have a financial incentive to "fail" honest people:
the more job applicants a polygrapher "fails," the more tests he has
to give -- and the more money he makes.
"lie detector" interrogation is
obtained before the examinee is even hooked up, because examinees
are so afraid of the polygraph machine!
All of this is justified, employers tell us, because they have
no other way to control internal theft. The Committee has probably
heard, and may hear again, astronomical estimates of the losses
caused by internal theft. These estimates vary widely, and seem to
depend more on the motives of the estimators than on any objective
collection and analysis of credible data.
In fact, a study conducted for the Justice Department by the
National Institute of Justice in 1982 found that "Despite the fact
that employee theft is generally viewed as a problem of significant
consequence, little reliable data exist regarding the phenomenon.
The economic impact figures . . . seldom go beyond the level of
alarmist rhetoric."
The same study went on to break down the nature of business
losses. The study estimated that securities fraud, corporate
kickbacks, embezzlement, and insurance fraud cost business three
times more than employee pilferage. Shoplifting costs business more
than half the losses attributable to employee theft.
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Needless to say, you do not find many polygraph examinations
being conducted in corporate boardrooms. Nor do you find many
companies polygraphing their customers. We certainly would not
support polygraphing in these instances either! Yet if business
losses justify polygraphing workers, they would certainly justify
strapping corporate executives, directors, and .customers to these
machines.
I do not mean to trivialize the seriousness of loss problems
facing the business community. Internal theft is a problem. Theft
by those within an organization can hurt, even cripple a business.
Internal theft cheats honest workers out of the fruits of their
labors, and must be combatted by workers and management together,
with all reasonable means. But polygraphing workers is neither the
proper nor the best way for employers to reduce internal losses.
There are effective ways to protect company assets and make
personnel decisions without subjecting workers to intrusive,
intimidating and inaccurate "lie detector" tests. Employers can
protect company assets through a variety of means, including:
good recordkeeping;
attractive employee discounts for company products;
a healthy organizational climate;
loss prevention systems that protect assets without abusing
employees;
good management; and
senior management that is honest in its dealings with both
employees and customers.
Likewise, employers can make effective employment decisions
with careful interviewing procedures, clearly stated job
requirements, and testing for specific job skills and talents.
Polygraphs are not necessary. They are simply convenient.
In an article published by Arthur Young and the National Mass
Retailing Institute, David J. Cherrington and J. Owen Cherrington of
Brigham Young University recommend several common-sense and non-
abusive steps to combat internal theft, such as:
developing a code of ethics;
involving employees in group discussions regarding
ethical conduct;
reviewing company policies and practices to identify
unethical procedures;
carefully designing a system of internal accounting
controls; and
developing a discipline and grievance system that
provides "due process."
---The National Institute of Justice study suggests that factors
such as fairness in employer-employee relations, ethical behavior by
higher management, adequacy of communication, recognition of quality
performance, and competence of supervisors may reduce theft among
employees.
The study concluded that: "we found that applying the law
enforcement model to theft does not work very well. For example,
assessing
polygraph
However,
previous theft activity outside the work setting (by using
exams) has little relevance to future workplace behavior.
checking on one's previous pattern of employment history
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and dedication to a former employer are probably much better
indicators."
Twenty-two states already either ban "lie detectors" from the
workplace completely or forbid employers to require the tests -- yet
businesses still operate profitably in those states. And despite
requests from the House Subcommittee on Employment Opportunities,
industries seeking exemptions from federal polygraph legislation
introduced by Representative Pat Williams of Montana .have not
produced any evidence that internal theft rates are higher in states
which forbid "lie detector" tests.
In shcirt, the best way to control internal losses is through
good emplOyment practices. We believe polygraph testing is not a
good employment practice, by any definition.
Mr. Chairman, the states have tried and failed to control the
abuse of "lie detectors" in the workplace. Over forty states and
the District of Columbia have passed legislation affecting the use
of these machines. Yet the incidence of testing and reports of
abuse continue to rise. In just the past ten years, the number of
polygraph tests administered in the workplace has increased
fourfold.
The result of state efforts to deal with the epidemic of "lie
detector" testing in employment is a confusing and easily evaded
patchwork of restrictions, prohibitions, regulations and licensing
requirements., Many employers skirt state law by simply sending
employees and job applicants to take tests in neighboring states
with no "lie detector" restrictions.
"Lie detector" testing is an unscientific and subjective
procedure which violates the most fundamental principles of our
Constitution: the presumption of innocence, the right of privacy,
and the privilege against self incrimination. It is a national
scandal which the separate states have been unable to stop.
The harm to honest workers and job applicants from inaccurate
and abusive polygraph tests is too severe to allow American workers
to continue without effective protection. Incorrect interpretations
of polygraph charts can unjustly condemn and stigmatize honest
workers for life, rob them of their livelihoods or bar them from
just advancement.
The inability of the states to protect workers and job seekers
from the dangers of abusive and inaccurate "lie detector" testing
shows that national legislation in this area is not only
appropriate, but necessary, and long overdue. Mr. Chairman,
Congress has a history and duty of establishing basic workplace
standards for American workers. I urge the Committee to act
expeditiously on this issue, and to proscribe the abuse of "lie
detectors" in private sector employment. Thank you.
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17
LU
The CHAIRMAN. Thank you very much.
Dr. Beary, representing the AMA.
Dr. BEARY. Thank you, Mr. Chairman.
I will begin by reporting two facts: Science has not found a cure
for the common cold; and science has not found a machine that can
accurately detect lies.
I will let the written documents speak for themselves. I will draw
your attention to the reprint from the American Family Practice
Journal in March 1986 which summarizes the key points, I hope, in
a very clear manner.
The CHAIRMAN. We will make that a part of the record.
Dr. BEARY. Yes, and it has been inserted with the AMA testimo-
ny this morning. I will make four points.
(1) There is no pinocchio effect. Despite years of looking, decades
of looking, there is no body response that is unique to lying.
(2) The polygraph machine itself is basically a blood pressure cuff
with a few attachments.
(3) You cannot make decisions based on the polygraph machine.
If the theory is unsound and there is no pinocchio effect?and you
will not find anybody here today telling you there is, there will not
be anybody here next month telling you there is?then I think that
is a logical conclusion.
(4) The fourth point which is logical to ask is, if there is no pinoc-
chio effect, why is the polygraph so popular? Why is it in such
widespread use? The answer to that is found in that American
Family Practice Article as well. It is what I call the "electronic
scarecrow" effect, and I think Mr. Abrams brought that out with
some of his examples.
You probably have got some of your own. I have had people cor-
respond with me about similar sorts of things. If a scientifically
naive subject, a teenager, or others who may not read the newspa-
pers and the journals as much as those in the room do, is hooked
up to the machine he may indeed confess something useful. It has
nothing to do with whether the polygraph machine is plugged in or
not. It is just the fact that it is an electronic scarecrow.
Of course, there is a cost to those confessions from the scarecrow,
and that is a human wastage factor from the careers that are de-
stroyed. We have had examples here and we will hear more exam-
ples in the future, I am sure. That is more a political issue, while I
am speaking only about science. People making policy decisions
about using this machine have to decide what amount of human
wastage will be tolerated as a tradeoff to the confessions that are
gathered.
I will stop at this point and I would be prepared to respond to
any questions you may have.
[The prepared statement of Dr. Beary with attachments follow:]
STATEMENT
of the
AMERICAN MEDICAL ASSOCIATION
to the
Committee on Labor and Human Resources
United States Senate
Presented by
John F. Beery III, M.D.
RE: Use of Polygraph Examinations in Employment
June 19, 1987
Mr. Chairman and Members of the Committee:
My name is John F. Beery III, M.D., and I am Assistant Dean for
Planning and Development, Georgetown University School of Medicine. With
me is David Heidorn of the Association's Department of Federal
Legislation.
I am pleased to appear before this Committee to share with you the
American Medical Association's concerns about the use of polygraph
testing in the employment setting.
Mr. Chairman, the AMA does not support the use of the polygraph for
employment purposes in private industry or federal agencies because the
polygraph testing and scoring methods currently used in personnel
screening have never been shown to be valid tests of truthfulness.
Polygraph testing fails to fulfill scientific principles because it does
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38
Dr. BEARY. Well, it is just thought that national security is a spe-
cial field by itself and that people who--
Senator THURMOND. NOW, it says doctors rely on diagnostic in-
struments. Should not law enforcement or security officers also
have access to diagnostic instruments?
Dr. BEARY. Well, I guess I would answer that by saying that be-
cause the pinocchio effect has not been able to be found and that
"60 Minutes" tape we saw earlier showed that no camera was
stolen, yet three different polygraphers found a crook in each of
those investigations, that raises, I think, some questions.
Senator THURMOND. I just have one more question, and thank
you very much for your appearance.
Are medical diagnostic techniques infallible and 100 percent reli-
able?
Dr. BEARY. No, they are not.
Senator THURMOND. Thank you very much.
Thank you, Mr. Chairman.
The CHAIRMAN. Thank you very much.
Well, Dr. Beary, we thank you very much. I think you are here
to speak to the science of a system which purports to be a medical
system. I have my differences with the AMA from time to time on
policy questions, but I think with regards to science, their record is
an unblemished one. Sometimes we differ in terms of applications
of policy and other kinds of issues, but in regards to the science on
this, it seems that what the AMA, what the OTA, what the other
kinds of science research has demonstrated quite clearly is the
same conclusion that you have testified today. So it should not be
any surprise.
I want to thank the panel very much. We appreciate your pres-
ence. It was good to see you, Bob.
Our next panel is made up of William Scheve, President of the
American Polygraph Association, William Zierden of the Circuit
City Company on behalf of the U.S. Chamber of Commerce and
their polygraph coalition, and Mr. Richard Sullivan of Conrail on
behalf of the American Association of Railroads.
Welcome, gentlemen. We will start with Mr. Scheve.
STATEMENTS OF WILLIAM J. SCHEVE, JR., AMERICAN POLY-
GRAPH ASSOCIATION; WILLIAM ZIERDEN, CIRCUIT CITY
STORES, INC., ON BEHALF OF THE CHAMBER OF COMMERCE
POLYGRAPH COALITION; AND RICHARD C. SULLIVAN, CON-
RAIL, VICE PRESIDENT, RESOURCE DEVELOPMENT
Mr. SCHEVE. My name is Bill Scheve and I am President of the
American Polygraph Association. I want to thank you on behalf of
our organization for the opportunity to present our views on the
legislation you are considering.
We understand this Committee's interest in focusing public at-
tention on the potential for the abuse of the polygraph technique.
While we share this concern, we do not believe that the solution
lies in banning the polygraph in the public sector.
The polygraph has unwittingly been called a "gimmick" and a
"gadget" and claims have been made that the polygraph is abusive.
It is not the instrument but rather the few unskilled or unethical
examiners who cause isolated instances of polygraph abuse. For a
polygraph examination to be valid and reliable, it is essential that
the polygraph examiner be highly trained and qualified in using
the polygraph technique.
Legislation is needed to establish strict Federal standards for
training and proficiency of polygraph examiners. The 99th Con-
gress wisely supported increased polygraph testing through an
amendment to the Defense Authorization Bill. It established a tem-
porary testing program for civilian and military personnel who
have access to highly classified information. Last month the House
considered the 1988 version of the Defense Authorization Bill.
Members voted to make the temporary testing program permanent
by a margin of 345 to 44.
But the need for polygraph testing to protect valuable informa-
tion and assets does not end with the Government. The polygraph
is also valuable in protecting the customers, employees, inventories
and assets of American business and industry. While we believe in
the fundamental honesty of Americans, we also believe we must be
realistic about protection against deceit. More than half of the
crimes that occur in this country go unreported or unsolved. Back-
ground checks cannot provide information on a thief, a rapist or a
drug pusher who has never been identified or caught.
A recent survey was conducted of more than 1,200 businesses
that use polygraph examinations. Employers said that the poly-
graph provides more information for an accurate assessment of an
individual than background or reference checks alone. The experi-
ence of a number of law enforcement agencies demonstrates the
need to use the polygraph to supplement background checks, psy-
chological tests, interviews and other screening techniques.
For example, the Florida State Police administered polygraph ex-
aminations to 2,711 applicants between 1980 and 1985. Sixty per-
cent of them were rejected because of confessions during the exami-
nations about their involvement in criminal activities. Studies have
also shown that polygraph examiners for the National Security
Agency are twice as effective as skilled investigative interviewers
in gaining relevant information from persons seeking classified po-
sitions.
Critics say the polygraph should be outlawed in the private
sector because it is occasionally fallible. No one claims that the
polygraph is infallible, but then few if any investigative or other
diagnostic tools are.
Drug tests are not infallible, yet the Senate Commerce Commit-
tee by a vote of 19 to 1 has endorsed mandatory drug testing for
many employees in the transportation industry. The polygraph
serves the same function. These tests give employers information
they need to make decisions that protect the public safety and wel-
fare.
Other critics of the polygraph have voiced concern about the 5
percent or so of false positives, referring to individuals who are in-
nocent but appear deceptive on a polygraph test. But the concerns
about false positives just do not materialize in actual practice. The
Defense Intelligence Agency reports that since 1981 it has tested
13,595 individuals, people in critical intelligence positions with
access to secret compartmentalized information. Of this number
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only 17 were found to be deceptive, and the majority of them pro-
vided significant explanations for their deception.
In addition, the Department of Defense reported that it tested
3,993 people for security breaches in 1985 and 1986--
The CHAIRMAN. Can I just ask you there, why is the rejection
rate so much higher, then, among the private testers?
Mr. SCHEVE. I suspect it is not that much higher, Senator Kenne-
dy.
The CHAIRMAN. Well, that completely runs into the face of all
the testimony we had. Defense says 0.12 percent, and in 1986 it was
0.3 of 1 percent. You are saying that that is from your organiza-
tion's routine tests, that that is roughly the same percentage that
you are taking?
Mr. SCHEVE. No. Our percentage on the outside would be slightly
higher because I do believe the qualifications of the average exam-
iner working for the National Security Agency and the Govern-
ment is higher than that of the average examiner on the outside.
This is one of the reasons why I would like to see legislation requir-
ing higher standards.
The CHAIRMAN. All right. Why do not you proceed.
Mr. SCHEVE. In addition, the Department of Defense reported
that it tested 3,993 persons for security breaches in 1985 and 1986
and found only 13 to be deceptive, 8 of whom made admissions of
improper disclosures of information.
These studies show that the false positive claims are not the sig-
nificant problem critics claim. The suggestion has been made that
Government examinations should be allowed because of the impli-
cation that Government examiners differ from examiners practic-
ing in the private sector.
In many instances this just is not the case. I am one of many ex-
aminers who have worked for Federal and State law enforcement
agencies as well as for private business and industry. The skills
and equipment I use are identical for all my examinations.
The Government itself imposes a heavy security burden on many
private business. The Nuclear Regulatory Commission and the
Drug Enforcement Administration are just two example. The NRC
requries investigations of all instances of the sale or use of drugs
detected on the sites of nuclear power facilities. Power plan opera-
tors agaree it is impossible to adequately screen workers or to con-
duct these drug investigations without the use of the polygraph.
The DEA endorses the polygraph because it knows that the drug
industry needs the polygraph to help protect its inventories, there-
by helping to protect the health and even the lives of our citizens.
We believe that the polygraph also serves a function in helping
Americans get jobs who otherwise might be disqualified. If the
polygraph were removed from the workplace the advantage goes to
people who are well-known and have roots in the community. In
many cases this could work against Blacks, Hispanics and other
minorities. Without the polygraph, jobs are more likely to go to
those who have consistent and stable work records and whose back-
grounds can more readily be checked. Legislation that works
against the underpriviledged of our socieity would be counter to
the traditions of this Committee.
The Congress itself relies on the use of polygraph examinations
to protect this building and the members and staff who work here.
The Capitol Police use the polygraph to screen their applicants and
to investigate specific incidents, including suspected drug use. That
the Congress itself relies on polygraph is still another testament to
its value.
The polygraph is valuable to the business community in helping
to combat employee theft and thereby hold down the cost of con-
sumer goods. The Fireman's Fund Insurance Company estimates
that one-third of all business failures are caused by employee theft.
Estimates of the cost of economic crime against business, includ-
ing employee theft, range from $67 to $200 billion annually. Fur-
ther, the National Association of Chain Drug Stores reports that
drug store prices have jumped as much as 15 percent because of
employee theft.
A number of State courts have held companies liable in matters
where customers or other employees were injured or robbed by
other employees who were not properly screened. Hotels and
motels have been held liable when employees who had access to
room keys committed robbery or assaulted guests. Employers must
make sure that the people they are hiring are honest and reliable.
Competent polygraph examiners recognize and respect an indi-
vidual's right to privacy. But we also know that one of the prices
we pay for living in a complex society is that we give up some of
our privacy for the benefit of society as a whole. We allow our-
selves and our luggage to be searched whenever we travel on an
airplane, and we must go through a metal detector in order to
enter this building.
Regarding public attitudes toward polygraph testing, I would like
to cite a recent study by Dr. Frank Horvath of the School of Crimi-
nal Justice at Michigan State University. A questionnaire was sent
to examinees several months after they took polygraph examina-
tions and they were asked to respond anonymously. The study
showed that 70 percent of those who had taken polygraph tests did
not find them to be unfair, objectionable or an invasion of their pri-
vacy, and about the same number said that they would take the
examination again if asked. Of the 30 percent who objected to the
exam, the vast majority of them did not meet the employer's stand-
ards for employment based upon other criteria.
The approval rates of Dr. Horvath's study mirror almost exactly
the results of a recent public attitude poll taken in February of
this year by Media General for the Associated Press. The poll
showed that two-thirds of all Americans would not object to taking
a polygraph examination.
We support the bill H.R. 1536 introduced in the House by Con-
gressman Bill Young of Florida and Buddy Darden of Georgia be-
cause we believe it is the most workable polygraph legislation so
far presented. It allows continued regulated use of polygraph test-
ing in the private sector and in the public sector. The Young-
Darden approach serves the interests of the American people and
the needs of American business.
We want to work with this Committee to develop legislation that
will ensure the highest standards for polygraph examiners and
polygraph testing are instituted and maintained nationwide. What
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is needed is a carefully developed body of polygraph law that sets a
high standard for all polygraph examinations. We would hope that
the Congress would find a way to address the needs of citizens to be
protected from the potentials for abuse, but at the same time we
believe that Congress should allow business and industry access to
an investigative tool they have found so useful.
Federal, State and local governments as well as American busi-
nesses have demonstrated through their increasing use and reli-
ance on the polygraph technique that the polygraph technique is
needed. It is most often administered in a fair, equitable and non-
discriminatory manner, and it works. Responsible legislation is re-
quired. Prohibition is not.
Thank you.
[The prepared statement of Mr. Scheve and a response to a ques-
tion by Senator Kennedy follow:]
William J. Scheve, Jr.
President, American Polygraph Association
Testimony presented to the
Senate Labor and Human Resources Committee
June 19, 1987
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My name is William J. Scheve, Jr., and I am president of the
American Polygraph Association. I want to thank you on behalf of
our organization for the opportunity to present our views on the
legislation you are considering.
The APA is a non-profit technical, professional, and
educational organization representing thousands of individual and
corporate members. The issue you are considering has special
urgency for the thousands of.employers we serve, for our members
and for the polygraph industry.
We understand this committee's interest in focusing public
attention on the potential for abuse of the polygraph technique.
We share this concern, but we take a different approach to
solving the problem. We feel that the answer lies in
establishing strict standards for training and proficiency of
polygraph examiners and for the accuracy and quality of polygraph
examinations. The answer does not lie in banning the use of the
polygraph technique in the private or any other sector.
The polygraph has unwittingly been called a "gimmick" and a
"gadget" in the course of the public debate on this issue. While
we do not use that same terminology, we agree that the polygraph
itself is only one of many diagnostic instruments. What is
essential to the validity and reliability of a polygraph
examination is that the examiner be highly trained and qualified
in using the polygraph technique. It is not the polygraph itself
that is potentially abusive but the few unskilled or unethical
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examiners who cause isolated instances of polygraph abuse.
The American Polygraph Association believes that all
polygraph examiners should be required to adhere to strict
standards for training, education, and instrumentation. If the
Congress were to extend these standards to cover all polygraph
examiners, it would address the problem of potential polygraph
abuse in a meaningful way.
In my testimony, I would like to address the value of the
polygraph technique in both the public and private sectors. Then
I will turn to the American Polygraph Association's
recommendations for assurance of high quality polygraph
examinations and protection of the rights of examinees. I also
would like to address several issues which were raised during the
debates on the polygraph technique, specifically public attitudes
about polygraph testing and accuracy.
Valuable in private and public sectors
For more than 50 years, the polygraph technique has
demonstrated its value as an investigative tool. Our equipment
and training have become more and more sophisticated over these
decades. The accuracy rate has been demonstrated to be in the
range of 90 percent when a competent examiner using properly
calibrated equipment is able to reach a conclusion based upon
chart analysis.
The polygraph technique is employed by all federal agencies
with enforcement powers and by state and local governments in
investigations that affect public health, safety and national
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40
security. The increasing prevalence of espionage and deceit in
our government, such as the recent security breaches by Marine
guards on embassy detail, underscore the need for polygraph
examinations. Former Navy Secretary John Lehman said he favors
random polygraph testing for embassy guards, both for their
investigatory and deterrent value.
The 99th Congress wisely supported increased polygraph
testing of civilian and military personnel with access to highly
classified information through an amendment to the Defense
Authorization Bill. During consideration last month of the 1988
version of this legislation, the House voted 345-44 to make
permanent the temporary polygraph testing program that was
established in the previous year's authorization bill.
The Congress itself relies on the use of polygraph
examinations to protect this building and the members and staff
who work here. The Capitol Police use the polygraph to screen
their applicants and to investigate specific incidents, including
suspected drug use. That the Congress relies on the polygraph is
still another testament to its value.
The need for polygraph testing to protect lives, property
and valuable information does not end here. The polygraph is
indispensable in protecting the customers, employees,
inventories, and assets
well, and they also are
the polygraph technique
of American business and industry as
entitled to access to the polygraph. If
is acceptable in protecting national
security and other government interests, it should also be
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acceptable to protect the interests of business and industry.
During testimony before this committee last year, noted
attorney F. Lee Bailey said that as a defense lawyer, he would
hate to live in a society where all polygraph examiners work for
the government. He said that would be like having the news media
controlled by the government.
Businesses now are required to conduct their own
investigations of internal theft and other crimes to protect
their assets and their customers. If the polygraph were banned
in the private sector, more of the burden for conducting those
investigations would be shifted to law enforcement agencies which
already are overburdened with the caseloads they have.
Protection for employers and employees
Polygraph examinations have been shown to be one of the most
valuable, effective, and credible investigative tools available
to employers and employees alike. There are countless examples
of polygraph examinations playing a key role in protecting
innocent employees and customers, in reducing and in some cases
even eliminating internal losses, and in helping to create a
safe, secure workplace. It also helps clear innocent employees,
thereby protecting their jobs and reputations.
We believe that the polygraph also serves a function in
helping Americans get jobs who otherwise might be disqualified
because they do not have strong personal or family ties in a
community. If you remove the polygraph from the workplace, you
give the advantage to people with roots in a community and who
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.10
are well-known. In many cases, this could work against blacks,
hispanics and other minorities. Without the polygraph, jobs are
more likely to go to those who have consistent and stable work
records and whose backgrounds can more readily be checked.
Legislation that works against the underprivileged of our society
would be counter to the traditions of this committee.
Consumers also benefit when businesses have access to the
polygraph technique to identify employees who abuse their
employer's trust and steal from the company. Employers are able
to use the polygraph in investigations to ferret out these
insider thefts, thereby helping to hold down prices.
In addition, many businesses find the polygraph valuable in
helping them to guard the public interest. Day care centers must
be able to investigate when child abuse is suspected. Nursing
homes must be able to determine if their sick and often helpless
patients are being mistreated. Banks, where 84 percent of losses
are attributed to employees, must protect their customers' assets
from inside schemes like computerized theft. Public utility
companies, nuclear and chemical plants, airline companies and
others have major public responsibilities and therefore need
access to the investigatory tools that they and the government
have found useful.
Drug protection
The Drug Enforcement Administration (DEA) estimates that
each year employees steal a million dosage units of controlled
substances from pharmacies. In addition, the DEA says that
millions more doses of non-controlled drugs are stolen every
year, and these legitimate, but improperly used, drugs are among
the most heavily abused. Nearly twice as many people are killed
or injured from improper or illegal use of licit as opposed to
illicit drugs.
The DEA endorses the polygraph because it knows that the
drug industry needs the polygraph to help protect its
inventories, thereby helping protect the health and even the
lives of our citizens.
There are other examples where the polygraph is used in the
private sector in response to federal requirements. The Nuclear
Regulatory Commission (NRC) requires investigations of all
instances of the sale or use of drugs detected on the sites of
nuclear power facilities. Power plant operators agree it is
impossible to adequately screen workers or to conduct these drug
investigations without
These regulations
safety of employees as
polygraph also is used
the use of the polygraph.
are designed to protect the health and
well as the public in general. The
to help protect the public in other ways.
The polygraph is valuable to the business community in
helping to combat employee theft and thereby hold
of consumer goods. According to the U.S. Chamber
business executives view employee theft as their
crime problem. The Fireman's Fund Insurance Co.
one-third of all business failures are caused by
down the costs
of Commerce,
most serious
estimates that
employee theft.
Estimates of the cost of economic crime against business,
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including employee theft, range from $67 billion to $200 billion
annually. Further, the National Association of Chain Drug Stores
reports that drug store prices have jumped as much as 15 percent
because of employee theft.
The most effective deterrents against employee theft include
thorough pre-employment screening procedures and the means to
-identify those who have committed theft in the workplace.
Most Americans approve of the polygraph
Regarding reported public opposition to polygraph testing, I
would like to cite a recent study by Dr. Frank Horvath of the
School of Criminal Justice at Michigan State University. A
questionnaire was sent to examinees several weeks or months after
they took polygraph examinations, and they were asked to respond
anonymously. The study showed that 70 percent of those who had
taken polygraph tests did not find them to be unfair,
objlfctionable, or an invasion of their privacy. And about the
same number said they would take the examination again if asked.
Of the 30 percent who objected to the exam, the vast
majority of them did not meet the employers' standards for
employment based upon other criteria.
The approval rates of Dr. Horvath's study mirror almost
exactly the results of a recent public attitude poll taken in
February of this year by Media General for the Associated Press.
That poll showed that two-thirds of all Americans would not
object to taking a polygraph examination. They also approved by
wide margins polygraph testing for government employees in
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sensitive posts and for court testing of suspects.
The American Polygraph Association believes that the
majority of America's workers are honest. We believe that these
polls reflect this honesty when they show that most people would
willingly take a polygraph examination because they are honest.
But while we believe in the fundamental honesty of
Americans, we also believe it is essential to be realistic about
protection against deceit. About half of the crime that occurs
in this country goes unreported or is unsolved. Background
checks cahnot provide negative information on a rapist, thief or
drug pusi4r who never has been identified or caught.
Take police applicants, for example. Individuals applying
for positions as police officers are well aware that they will be
subject to very detailed screening checks before they are hired.
Consequently, one would expect that police applicants would
constitute an honest, law abiding group of individuals.
Yet in their book Truth and Deception: The Polygraph ('Lie
Detector') Technique, Reid and Inbau reported that of 415 police
applicants they tested, 234, or more than half were rejected
because of confessions during polygraph examinations about their
involvement in criminal activities, including felony thefts,
burglaries, robberies, and the use and sale of illegal drugs.
Similar results were found by the Florida State Police where
60 percent of the 2,711 applicants tested between 1980 and 1985
were rejected, often because of serious admissions during
polygraph examinations. Ohio and Maryland also report high
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52 58
rejection rates.
What these figures show is that background and credit checks
and interviews alone simply cannot produce a comprehensive
picture of a person's qualifications for a particular job.
Polygraph examinations, in conjunction with other investigative
techniques such as background checks, are extremely valuable to
employers in both the private and public sectors who need
assurances they are hiring trustworthy employees.
In a recent survey of more than 1,200 businesses which use
polygraph examinations, employers reported that one of the
primary benefits of the polygraph is that it provided more
information for an accurate assessment of the individual than
background or reference checks alone. There is no better source
of information about an individual than that individual. Since
the polygraph helps in determining whether or not the individual
has been truthful about his or her own activities, it simply
stands to reason that more will be discovered than would be the
case by relying on outside information alone.
The number of polygraph exams
Concerning the number of polygraph tests given, we have
heard many times that two million polygraph tests
each year in the private sector. That number has
to the American Polygraph Association yet we have
find any records
It is impossible
because there is
are conducted
been attributed
been unable to
in our organization to substantiate that figure.
for anyone to know how many tests are conducted
no central registry for licensing of all
polygraph examiners or for the numbers of tests they conduct.
But even if the number were in that range, it would seem to
validate the need for polygraph testing. Employers who are
concerned about protecting their employees and property are using
a method they find effective.
Examinations provide useful information
Critics say the polygraph should be outlawed in the private
sector because it is occasionally fallible. Yet medical tests
also are fallible and malpractice suits abound because of the
mistakes physicians make. The opinions of psychologists and
psychiatrists can be unreliable and
consequences.
In making a medical diagnosis,
sometimes have extreme
there are three elements in
the decision making process: the patient's history (such as
prior illnesses, treatments, and current symptoms), a clinical
assessment (such as the physician's
and laboratory tests. All of these
reaching a diagnosis, and the final
examination of the patient),
factors must be weighed in
decision does not rely on the
laboratory tests alone. Patients expect their physicians to use
the test results along with other information to make the best
decisions they can. That is exactly what the American Polygraph
Association advocates regarding polygraph testing. We do not
believe that any decisions should be made about an employee
solely on the basis of polygraph results.
No one claims the polygraph is infallible, but then few, if
any, investigative or diagnostic tools are. The Senate Commerce
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.54 55
Committee by a vote of 19-1 has endorsed mandatory drug testing
for many employees in the transportation industry even though no
one claims that drug test are infallible. But they do give
employers information that they may be able to use to make
decisions that protect the public safety and welfare. The
polygraph serves the same function.
Concern over inaccuracy
Some critics of the polygraph have voiced concern about
"false positives," referring to individuals who are innocent but
appear deceptive on a polygraph test. These critics have said
that even with a 95 percent accuracy rate, five percent of those
examined will show up as errors, some of them as false positives.
Yet in reality, the Department of Defense reported that it
tested 3,993 persons for security breaches in 1985 and 1986 and
found only 13 to be deceptive, eight of whom made admissions
during the test of improper disclosures of information.
The Defense Intelligence Agency reports that since 1981 it
has tested 13,595 individuals in critical intelligence positions
and/or who had access to secret compartmentalized information.
Of this number, only 17 were found to be deceptive and the
majority of them provided significant explanations for their
deception.
These studies show that large numbers of false positives
simply do not materialize in real life.
Polygraph is increasingly accurate
Advances in equipment and methodology have made the
polygraph increasingly accurate, and consequently both the
private and public sectors are relying on it more as a tool in
their investigations.
The American Polygraph Association has been a leader in
initiating these advances. The APA has strict standards for
ethical practice and for the professional backgrounds of
examiners, and we promote continuing education for members.
The APA demands the highest standards for polygraph
examiners and the equipment they use. We know that only through
these standards can we assure the greatest accuracy in our tests.
It is a fundamental premise that polygraph test results are only
as good as the polygraph examiner. We have developed these
strict standards for ourselves over the years because we know
that the integrity of our profession depends upon the integrity
of individual examiners.
The APA's Code of Ethics and Standards and Principles of
Practice demand high moral, ethical, and professional conduct.
We consider our primary responsibility to be to the person who is
taking the examination. We are required to discharge our duties
with complete impartiality, dignity, and respect. We are
forbidden from allowing considerations of race, religion,
politics, union activity, or economic status to play any part in
our examinations. We are pledged to issue an objective and
unbiased report and to protect the confidentiality of the
examination results.
The APA School Accreditation Committee examines the
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?
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curricula and instructional staffs of polygraph schools. It also
inspects their physical facilities and equipment at periodic and
unannounced intervals to ensure APA standards are being met.
Government and private sector examiners
The suggestion has been made that government examinations
should be allowed because of the implication that government
examiners differ from examiners practicing in the private sector.
That just isn't the case. I am representative of a large number
of *former federal and state polygraph examiners who now work in
the private sector. My qualifications are no different today
than when I was conducting examinations for federal and state
governments. I use the same kind of equipment, the same
techniques, and my standards are identical.
The APA maintains and enforces these high standards for our
many members, yet we recognize that a number of practitioners who
are not affiliated with organizations such as ours may choose not
to follow a competent examiner's standards of practice. We also
recognize that in the polygraph profession the potential for
abuse exists, as it exists with any profession or by any
professional utilizing a diagnostic tool. That is why the
American Polygraph Association would welcome action by the
Congress to ensure that all examiners follow strict standards. We
believe the legislation being offered in the House by Congressmen
Bill Young of Florida and Buddy Darden of Georgia would meet this
test.
They are proposing a carefully considered body of polygraph
regulations. Their bill provides important protection for the
rights of examinees. Examiners would be barred from asking
personal questions such as religious, racial, political, or labor
union beliefs or affiliations. The bill would require all
questions to be presented to the examinee in writing before the
polygraph examination begins, and any waiver of these rights
would be prohibited. Additionally, it would assure the examinee
that the results would be kept confidential.
Most important, no decisions about hiring or firing an
employee could be made solely on the basis of a polygraph
examiner's opinion.
Further, it would encourage the states to develop their own
legislation by adopting the federal standards and adding their
own provisions adapted to the particular needs of their
citizenry.
Most states already have laws regulating the use of the
polygraph. Just this year, the Kansas legislature has approved a
new polygraph licensing law, and Missouri currently is
considering polygraph legislation. The states have proven that
they are willing to take on the issue of the polygraph to develop
legislation that is appropriate for their citizenry.
Total ban wouldn't work
We support the Young-Darden bill (H.R. 1536) because we
believe it is the most workable polygraph legislation so far
presented. Last year's debate on the House floor on polygraph
legislation showed how complicated it would be to impose a
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air
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Dv
private sector ban on polygraph use. Dozens of industries
pleaded for exemption from the ban and amendments were adopted
granting exemptions to government contractors with defense or
national security responsibilities, companies that employ persons
who have direct access to controlled substances, power plant
operators, public water supply facilities and other utilities,
security and armored car companies, and nursing homes and day
care centers. The list of industries with solid grounds for
exemption could have grown much longer, but the House called a
halt to the exemptions.
Granting selected industries exemptions sets up a pattern of
arbitrary discrimination among American businesses. There simply
are too many private sector industries with a legitimate and
convincing need to use the polygraph.
Business needs protection, too
A number of state courts have held companies liable in
matters where customers or other employees were injured or robbed
by other employees who were not properly screened. Hotels and
motels also have been held liable when employees who had access
to room keys committed robbery or assaulted guests. Employers
must make sure that the people they are hiring are honest and
reliable.
Competent polygraph examiners recognize and respect an
individual's right to privacy.' But we also know that one of the
prices we pay for living in a complex society is that we give up
some of our privacy for the benefit of society as a whole. We
allow ourselves and our luggage to be searched whenever we travel
on an airplane, and we must go through a metal detector in order
to enter this building. Companies can ask prospective employees
to take physical examinations and drug tests and to allow
investigations of their work histories and personal associations.
We recognize that the right to privacy must be balanced with
other rights as well. A company has the right to protect itself
against individuals who might take actions that destroy a company
or its reputation or that cause harm to customers or other
employees.
Seeking the best solution
With public attention focused on truth telling, both in the
private and public sectors, we encourage the Congress to
carefully study the best way to ensure integrity in the
workplace. A bill that was approved by this committee last year
would unfairly outlaw an investigative tool which has
demonstrated its validity and utility. We believe a better
approach is to allow continued, regulated use of polygraph
testing. The Young-Darden bill serves both the interests of the
American people and the needs of American business. We ask that
the polygraph not be banned. We are helping American business
and industry do what they must to protect themselves and the
public.
We want to work with this committee to develop legislation
that will ensure that the highest standards for polygraph
examiners and polygraph testing are instituted and maintained
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61
nationwide. What is needed is a carefully developed body of
polygraph law that sets a high standard for all polygraph
examinations. We would hope that the Congress would find a way
to balance the needs of citizens to be protected from the
potential for abuse at the same time it allows business and
industry access to an investigative tool their have found useful.
Federal, state and local governments, as well as American
businesses have demonstrated through their increasing use of and
reliance on polygraph testing that the polygraph technique is
needed,'that it is most often administered in a fair, equitable,
and nondiscriminatory manner, and that it works. Responsible
legislation is required. Prohibition is not.
PRESIDENT
William J. Scheve, In.
705 Whistler Drive
Arlington, TX 76006
817/878-4957
VICE PRESIDENT?PRIVATE
Eric I. Holden
12890 Hillcrest. Suite 200
Dallas, TX 75230
214458.8333
VICE PRESIDENT?GOVERNMENT
Paul K. Minor
8112 Rondelay Lane
Fairfax Station, VA 22039
202/324-2985
VICE PRESIDENT?LAW ENF.
Gary W. Waters
701 Crawford Street
Portsmouth, VA 23704
804/393-8210
SECRETARY
Michael H. Capps
4854 Old National Highway
Atlanta, GA 30337
404/768-4261
TREASURER
A. E. Clinchard
123 Bryan Street
Gretna, NE 68028
402/332-4440
BOARD OF DIRECTORS
Frank A. Argenbright, Jr.?Chairman
4854 Old National Highway
Atlanta, GA 30337
404/766-1212
Norman Ansley
3$ Cedar Road
Severna Park, MD 21146
301/859-6949
Timothy L. Schroeder
7437 Van NOY Won
Ft. Meade, MD 20755
301/234-9355
Frank Horvath, Ph.D.
512 Baker Hall
School of Criminal Justice
Michigan State University
East Lansing, MI 48824
517/355-2197/2210
Albert D. Snyder
13170 Rounding Run Circle
Herndon, VA 22071
202/475-9106
EDITOR
Norman Ansley
P.O. Box 794
Severna Park, MD 21146
301/859-6949
COUNSEL
Charles Marino, Esq.
39 South LaSalle Street, Suite 1424
Chicago, IL 60603
AMERICAN POLYGRAPH ASSOCIATION
NATIONAL OFFICE ?ROBBIE BENNETT, Manager
SUITE 408, OSBORNE OFFICE CENTER, CHATTANOOGA, TN 37411 ? 615/892-3992 ? 1-800-APA-8037
MAILING ADDRESS: P.O. BOX 8037, CHATTANOOGA, TN 37411
July 12, 1987
The Honorable Ted Kennedy
Chairman
United States Senate Committee on Labor
and Human Resources
Washington, DC 20510-6300
EXECUTIVE DIRECTOR
Edward I. Gelb
6043 Hollywood Boulevard
Suite 205
Hollywood, CA 90028
213/461.4174
Dear Chairman Kennedy:
I as remiss in not having written sooner but have been extremely
busy. However, I did want to write and thank you for
allowing me the opportunity to present the American Polygraph
Association's views on pending polygraph legislation.
I was very much impressed with the decorum and dignity
with which the hearing was conducted.
I would also like to take this opportunity to clarify
an issue that came up during my testimony. You asked me why
the "rejection" rate was so much higher among private
examiners as opposed to government examiners. I suspect I
may have misinterpreted what you were really asking. At the
time of the question I was addressing the issue of false
positives and I related your question to that. In retrospect
I think what you were really asking was why more people
fail polygraph tests in the private sector than in the
government's counterintelligence screening programs.
As you may recall. I stated that : ...The Defense
Intelligence Agency reports that since 1981 it has tested 13,595
individuals, people in critical intelligence positions with
access to secret compartmentalized information. Of this
number only 17 were found to be deceptive, and the majority
of them provided significant explanations for their decep-
tion. In addition, the Department of Defense reported that
it tested 3,993 for security breaches in 1985 and 1986 and
found only 13 to be deceptive, 8 of whom made admissions of
improper disclosures of information."
It is important to remember that these tests were conducted
purely for counterintelligence purposes and all the relevant
questions asked pertained only to espionage and sabotage.
In a private sector preemployment or periodic examination,
the relevant questions are primarily concerned with theft, the
use of illicit drugs on the job, and the truthfulness of
the examinee's job application. In the private setting more
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52 I 63
The CHAIRMAN. Very good.
Mr. Zierden.
Mr. ZIERDEN. Mr. Chairman, I am William Zierden, Vice Presi-
dent of Human Resources for Circuit City Stores. I am appearing
on behalf of the U.S. Chamber of Commerce, the world's largest
federation of business companies, chambers of commerce, and trade
and professional associations, and the Chamber-sponsored Poly-
graph Coalition, a group representing business, trade and profes-
sional organizations which make use of the polygraph.
The Chamber and the Polygraph Coalition appreciate this oppor-
tunity to present their views. Today I am also accompanied by
Roger Middleton, counsel for corporate policy with the U.S. Cham-
ber of Commerce.
Crimes against business cost the American economy at least $40
billion annually with some estimates placing the cost at nearly
$200 billion a year. The National Association of Chain Drug Stores
estimates that consumers pay between 10 and 15 percent more per
item as a result of employee theft. The accounting firm of Arthur
Young & Co. found that internal theft, not shoplifting, is the lead-
ing cause of increased retail losses.
These insider thefts literally can be a matter of life or death. An
estimated $1 billion in drugs are stolen from the pharmaceutical
industry every year. The Drug Enforcement Administration reports
that when these stolen but legally produced drugs reach the black
market they injure or kill twice as many people as do illicit drugs.
As you are aware, the banking securities industry also has been
increasingly vulnerable to insider crime. The American Bar Asso-
ciation recently stated that business computers are now being used
to embezzle money, alter data, and defraud corporate stockholders
of up to $730 million each year. The ABA also stated that employ-
ees were responsible for 78 percent of those losses.
American businesses must have continued access to the investi-
gative tools they need to protect their assets and inventories, infor-
mation, customers, stockholders, and Mr. Chairman, I might add,
their other employees.
Polygraph screening is used within the business community for
the same basic reasons as other honesty-screening procedures. It
cost-effectively reduces losses attributed to internal theft.
Screening procedures to detect high risk employees fall within
three major categories. First, background checks, which are gener-
ally used only for higher level positions and which are expensive
and time consuming. Second, written honesty tests are available.
However, I believe the face-to-face interview is far superior to a
pencil and paper test. And third, polygraph screening, which is
quick and less expensive than the alternatives and which generates
information that can predict future behavior more accurately than
what could be expected by chance.
The polygraph is an essential tool to an employer, not only for
preemployment screening but also as an investigative device when
reviewing specific workplace incidents. Daycare centers must be
able to investigate when child abuse is suspected. Nursing homes
most know if their sick and often helpless patients are being mis-
treated. Banks must guard customers assets from inside schemes
such as computerized theft, and public utilities companies, nuclear
AMERICAN POLYGRAPH ASSOCIATION
people are going to be deceptive than they will be in the government's counter-
intelligence screening setting simply because there are more thieves and drug
abusers than there are spies in our country. I trust that you will agree
with me on this point.
Regarding the discussion that took place at the end of the hearing during which
you referred to a report prepared by the ACLU in which they stated that in 21
states representing 2,420 licensed polygraph examiners, only 35 complaints
were reported by all these boards. In the same 21 states the ACLU received
999 complaints. You offered to allow me to look at the report and to respond
if I wanted to. I still have not seen a copy of the report and would very much
like to do so. If you will please send me a copy of it, I will be happy to
respond.
To provide a brief answer based on the information you presented, I believe that
most state polygraph licensing boards do a good job of policing the profession.
But as with any regulatory agency or even our court system, they are not perfect.
It would also be a mistake to think that every complaint to a polygraph licensing
board, or to the ACLU for that matter, is a valid one. Frivolous complaints and
law suits are a common problem in this day and age. As I said above, once I
receive a copy of the report in question, I will address its contents more
specifically.
As I stated in my testimony, The American -Polygraph Association is as concerned
about abuses in the polygraph industry as you are. We would be honored and
privileged to work with you and your committee in an effort to eliminate such
abuses.
Once again, thank you for allowing the American Polygraph Association to be heard.
If I or any member of my staff can be of any assistance in any way, please do not
hesitate to contact me.
Respectfull
?1;7
WILLIAM ?. SCHEVE, JR.
President
Li
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