HOUSE PASSAGE OF H.R. 1212 - POLYGRAPH LEGISLATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89G00643R001200010021-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 74
• Document Creation Date: December 23, 2016
• Document Release Date: December 19, 2011
• Sequence Number: 21
• Publication Date: November 10, 1987
• Content Type: MEMO

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OCA 87-5697
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10 November 1987, ti
STAT
STAT
STAT
MEMORANDUM FOR: Deputy Director for Administration
Director, Office of Security
C/ALD/OGC
C/ICAD/OGC
FROM: Legislation Division/OCA
SUBJECT: House Passage of H.R. 1212 - Polygraph Legislation
1. On 4 November 1987, the House passed H.R. 1212, the
"Employee Polygraph Protection Act". A copy of the House floor
debate is attached (Congressional Record - pp. H/9528 - 9598).
2. In so doing, the House adopted the "amendment in the
nature of a substitute" as proposed by the House Education and
Labor Committee. Section 6 of that substitute protects the
Agency's equities in this matter: governmental exemption and
exemption for Agency contractors' employees. The House also
adopted two additional amendments: security services business
exemption (Representative Roukema) and pharmaceutical business
exemption (Representative Richardson). Neither, however, affected
Section 6. As soon as copies of the bill as passed are available,
we will forward them.
3. In the Senate, it is expected the House-passed bill will
be referred to the Labor and Human Resources Committee. That
Committee, however, is not expected to take up the bill before the
end of this session in December. In fact, to date, there has been
no Senate action on legislation of this nature. We will keep you
informed of further developments on this issue.
4. Please contact Visual Media shoo ld you wish to
view a tape of the floor deha
Attachment
as stated
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119328
CONGRESSIONAL RECORD - HOUSE Xocember 4, 1987
BRING HOME OVERSEAS IN-
VESTMENTS AND CREATE
JOBS IN AMERICA
(Mr. TRAFICANT asked and was
given permission to address the House
for 1 minute.)
Mr. TRAFICANT. Mr. Speaker,
America's top 100 multinational corpo-
rations have assets of $600 billion
overseas.
Their overseas profit alone was $27
billion in 1985. Think about it. If we
could bring home half of that invest-
ment, $300 billion, we would create 5
million new manufacturing jobs.
We could rebuild our factories and
start to cut our deficit, but let us face
it. As of now, the only program in
effect is to provide rustproof paint to
empty factories and empty buildings
with unemployed Americans in some
souplines in the future.
^ 1100
What bothers me is that if you
speak out on this issue, you are called
a protectionist. I say today that every-
one in this House is a protectionist.
You are either protecting America or
you are protecting workers overseas.
For years now we have been telling
our kids that America is the land of
opportunity, and unfortunately it is
still true, but only for those manufac-
turing plants in Japan, Taiwan, Korea,
Hong Kong, and Singapore. I think
America better do something about it.
Every State is affected by this issue.
I ask all my colleagues to support the
Radioactive Materials Transportation
Act.
U.S. CONTRIBUTIONS TO THE
UNITED NATIONS
(Mr. WEISS asked and was given
permission to address the House for 1
minute and to revise and extend his
remrks.)
Mr. WEISS. Mr. Speaker, today Con-
gressman Jim LEACH and I will be writ-
ing to our distinguished Foreign Af-
fairs Committee chairman, the gentle-
man from Florida, Mr. DAIQTE FASCELL,
supporting his efforts and urging the
conferees on the State Department au-
thorization bill to fully fund the
United States required contribution to
the United Nations.
Mr. Speaker. this issue transends the
current budgetary situation. The
Reagan administration itself has
called attention to the fact that the
failure to meet our assessed contribu-
tion to the United Nations would
clearly violate our treaty obligations.
The situation is particularly embar-
rassing in light of the recent decision
by the Soviet Union to pay not only its
annual assessment to the United Na-
tions, but all its outstanding debts as
well. This leaves the United States as
the largest debtor to the United Na-
tions.
For the United States to be in th
situation represents a drastic depar-
ture from our historical role as a
moral leader in the company of law-
abiding nations.
Mr. Speaker, there is an urgent need
to strengthen respect for international
law and the capacity of the United Na-
tions to fulfill its responsibilities.
I urge my colleagues on the Foreign
Affairs Committee to join us in sup-
porting Chairman FASCELL in full
funding for the United Nations.
I think as the news media pays at-
tention and starts to ask Congressman
GEPHARDT what he would do to clean
up the House, we will discover that
very rapidly it becomes impossible to
hide. raise your own pay, violate the
spirit of the rules, give away tax
breaks to the big boys, and go home
and claim you did not mean to do it.
PUT THE TRADE DEFICIT ON
THE AGENDA
(Mr. ALEXANDER asked and was
given permission to address the House
for 1 minute and to revise and extend
his remarks.)
Mr. ALEXANDER. Mr. Speaker, yes-
terday the dollar plummeted again
when traded against foreign curren-
cies, losing several increments in its
value in Japan, Germany, and the
other major markets around the
world. This was another signal to the
President and to Members of Congress
who are attempting the so-called eco-
nomic summit that we must put the
trade deficit on the agenda.
The budget deficit which has con-
sumed most of the attention is only
part of the problem, maybe half the
problem. To address the entire prob-
lem. one must put the trade deficit on
the agenda in order to restore the eco-
nomic business of America.
EMPLOYEE POLYGRAPH
PROTECTION ACT
Mr. WHEAT. Mr. Speaker, by direc-
ion of the Committee on Rules. I call
INTRODUCTION OF RADIOAC-
TIVE MATERIALS TRANSPOR-
TATION ACT
(Mrs. MEYERS of Kansas asked and
was given permission to address the
House for 1 minute and to revise and
extend her remarks.)
Mrs. MEYERS of Kansas. Mr.
Speaker, this year there will be about
1,400 shipments of high-level nuclear
waste and 2.8 million shipments of
low-level waste. In the future, this
number will increase as sites are
chosen for both high-level and low-
level waste disposal. This transporta-
tion of nuclear waste across our
Nation is fraught with the slim, but
very real, potential for catastrophe.
To lessen this risk, we must ensure
that nuclear wastes are transported in
as safe a manner as possible. Of the
safety inspectors employed by the De-
partment of Transportation, only one.
that's right one, is a specialist in nu-
clear matters. Therefore, I am intro-
ducing the Radioactive Materials
Transportation Act to mandate the
hiring of 20 additional safety inspec-
tors by DOT to specialize in the trans-
portation of nuclear waste.
This bill is simple and direct. It is in-
tended to prevent accidents by ensur-
ing that safety regulations are en-
forced and maintained. We need more
inspectors to license commercial driv-
ers, inspect the containment casks,
railroad tracks, major signals and de-
termine optimal transport routes.
p House Resolution 295 and ask for
The Clerk read the resolution, as fol-
lows:
H. REs 295
Resolved, That at any time after the adop-
tion of this resolution the Speaker may,
pursuant to clause 1(b) of rule XXIII. de-
clare the House resolved into the Commit-
tee of the Whole House on the State of the
Union for the consideration of the bill (H.R.
1212) to prevent the denial of employment
opportunities by prohibiting the use of lie
detectors by employers involved in or affect-
ing interstate commerce, and the first read-
ing of the bill shall be dispensed with. After
general debate, which shall be confined to
the bill and which shall not exceed one
hour, to be equally divided and controlled
by the chairman and ranking minority
member of the Committee on Education
and Labor, the bill shall be considered for
amendment under the five-minute rule. It
shall be in order to consider the amendment
In the nature of a substitute recommended
by the Committee on Education and Labor
now printed in the bill as an original bill for
the purpose of amendment under the five-
minute rule and each section of said substi-
tute shall be considered as having been
read. At the conclusion of the consideration
of the bill for amendment, the Committee
shall rise and report the bill to the House
with such amendments as may have been
adopted. and any Member may demand a
separate vote in the House on any amend-
ment adopted in the Committee of the
Whole to the bill or to the committee
amendment in the nature of a substitute.
The previous question shall be considered as
QUESTIONS FOR CANDIDATE
GEPHARDT
(Mr. GINGRICH asked and was
given permission to address the House
for 1 minute and to revise and extend
his remarks.)
Mr. GINGRICH. Mr. Speaker, I
simply want to ask all of our friends
on the Democratic Party side and par-
ticularly those who support Dtcx GEP-
HARlrr for President to talk with Con-
gressman DAN GLICxmAN about the
call-in show we did last night on C-
SPAN for an hour, to ask him about
the seven out of the nine callers who
said they would never vote Democrat
again, to ask about the tone of outrage
on the part of viewers who watched
last Thursday, who were disgusted to
see House Members raise their own
pay, give away tax breaks to every
Member of the Democratic leadership
and violate the spirit of the rules of
the House.
I would be glad to provide a tran-
script of the callers to the debate.
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November 4, 1987 CONGRESSIONAL RECORD - HOUSE
ordered on the bill and amendments thereto
to final passage without intervening motion
except one motion to recommit with or
without instructions.
The SPEAKER pro tempore. The
gentleman from Missouri [Mr. WHEAT]
is recognized for 1 hour.
Mr. WHEAT. Mr. Speaker, for the
purpose of debate only, I yield 30 min-
utes to the gentleman from Missouri
[Mr. TAYLOR], pending which I yield
myself such time as I may consume.
(Mr. WHEAT asked and was given
permission to revise and extend his re-
marks.)
Mr. WHEAT. Mr. Speaker, House
Resolution 295 is an open rule provid-
ing for the consideration of H.R. 1212,
the Employee Polygraph Protection
Act. The resolution provides for 1
hour of general debate to be equally
divided and controlled between the
chairman and ranking minority
member of the Committee on Educa-
tion and Labor. The rule further
makes in order the amendment in the
nature of a substitute recommended
by the Committee on Education and
Labor and now printed in the bill as
original text for the purpose of
amendment. The substitute shall be
considered for amendment under the
5-minute rule and each section shall
be considered as having been read.
Finally, Mr. Speaker, the rule pro-
vides for one motion to recommit, with
or without instructions.
Currently, numerous Americans are
being subjected to polygraph examina-
tions as a condition for obtaining and
maintaining employment. Studies con-
ducted by the Office of Technology
Assessment indicate that these exami-
nations are no better than 85 percent
reliable. Thus these tests are unreli-
able in determining with full accuracy,
the honesty or dishonesty of an em-
ployee.
H.R. 1212 would prohibit the arbi-
tary and indiscriminate use of poly-
graph examinations in preemployment
screening or in the conduct of employ-
ee relations. It would also prohibit an
employer's use of indirect suggestions
that an employee submit to a lie detec-
tor test as a condition for employment
and the bill would make it unlawful
for an employer to discriminate
against an employee because he or she
exercises their rights as provided
under this act. Finally, Mr. Speaker,
this measure requires that employers
post notices informing employees of
their rights under this act imposes up
to a $100 per day civil penalty for fail-
ure to comply with the posting re-
quirement, and imposes up to a
$10,000 civil penalty for other viola-
tions of this act.
Mr. Speaker, H.R. 1212, is a measure
which protects the rights of this coun-
try's citizens to work in an environ-
ment free of indiscriminate question-
ing. I urge that we adopt the rule so
that we may proceed to consideration
of this measure.
Mr. TAYLOR. Mr. Speaker, I yield
myself such time as I may consume.
Mr. Speaker, House Resolution 295
is an open rule under which the House
will consider a bill prohibiting the use
of lie detector tests by all private em-
ployers not involved with intelligence
and counterintelligence work for the
Government.
The rule makes the Education and
Labor Committee amendment for H.R.
1212 in order as original text for the
purpose of amendment under the 5-
minute rule, and the committee
amendment is to be considered by sec-
tions.
Last, the rule provides one motion to
recommit, with or without instruc-
tions.
Mr. Speaker, this bill made in order
by the rule is highly controversial.
Judging by the number and wide vari-
ety of amendments that have already
been filed, It is apparent that the
House will spend a considerable
amount of time perfecting the bill.
Mr. Speaker, I can find no good
reason why private sector employers
should not be allowed to continue to
use polygraph testing when screening
potential employees. Polygraph test
results are currently used by various
government agencies in the most sen-
sitive areas, such as national security
and criminal law enforcement.
Last year, when a similar bill was of-
fered, the House voted to permit poly-
graph testing in the private sector for
those that work in the private securi-
ty, utility, pharmaceutical, day care,
and nursing home industries.
Mr. Speaker, under this open rule,
we will again have the opportunity to
amend the committee bill. I support
this rule, and urge Its adoption so that
the House may proceed to bring up
the bill.
Mr. Speaker, I yield 3 minutes to the
gentleman from Wisconsin [Mr. GuN-
DERSON).
(Mr. GUNDERSON asked and was
given permission to revise and extend
his remarks.)
Mr. GUNDERSON. Mr. Speaker, I
simply want to rise in support of the
rule and the opportunity that it pro-
vides for us to have an open consider-
ation of this legislation. As the rank-
ing Republican on the Employment
Opportunities Subcommittee which
has jurisdiction over this legislation, I
have had the opportunity over this
session and previous sessions to listen
to all the debate regarding this par-
ticular piece of legislation as it comes
before us.
There is no question, as the gentle-
man from Missouri said, that there is
a great deal of controversy surround-
ing this legislation. Polygraphs are
controversial means by which we ques-
tion employees and prospective em-
ployees in our society today. Forty-one
States have recognized that controver-
sy and have passed legislation. As a
result and despite that, the legislation
before us today seeks to preempt every
State law in the land and to determine
that we at the top at the Federal level
know best how State legislatures, how
H 9529
local governments, and indeed how
private business across this country
ought to conduct themselves in this
regard.
Some would suggest that we ought
to regulate the tests. Some would say
we ought to limit the exposure of the
tests. The legislation in front of us
today seeks to ban totally the use of
polygraphs in the private sector, with
only a couple exceptions.
I would suggest to my colleagues,
Mr. Speaker, that this is a good rule
because it allows us a long and open
debate on the legislation that is before
us. I would call to the attention of my
colleagues that it is an open rule
which brings to us, however, a very
contentious and very controversial
piece of legislation.
Mr. TAYLOR. Mr. Speaker, I have
no further requests for time, and I
yield back the balance of my time.
Mr. WHEAT. Mr. Speaker, it is clear
that the rule does provide consider-
ation for a bill over which there is sig-
nificant disagreement, but the rule
provides ample opportunity for dis-
agreement and discussion of all the
issues involved.
Mr. Speaker, I have no requests for
time and I move the previous question
on the resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on
the table.
The SPEAKER pro tempore. Pursu-
ant to House Resolution 295 and rule
XXIII, the Chair declares the House
in the Committee of the Whole House
on the State of the Union for the con-
sideration of the bill, H.R. 1212.
IN THE COMMITTEE Or THE WHOLE
Accordingly the House resolved
itself into the Committee of the
Whole House on the State of the
Union for the consideration of the bill
(H.R. 1212) to prevent the denial of
employment opportunities by prohib-
iting the use of lie detectors by em-
ployers involved in or affecting inter-
state commerce, with Mr. GoNZALEZ in
the chair.
The Clerk read the title of the bill.
The CHAIRMAN. Pursuant to the
rule, the first reading of the bill is dis-
pensed with.
Under the rule, the gentleman from
California [Mr. MARTINEZ] will be rec-
ognized for 30 minutes and the gentle-
man from Wisconsin [Mr. GUNDERSON]
will be recognized for 30 minutes.
The Chair recognizes the gentleman
from California [Mr. MARTINEZ).
0 1115
Mr. MARTINEZ. Mr. Chairman, I
yield myself such time as I may con-
sume.
(Mr. MARTINEZ asked and was
given permission to revise and extend
his remarks.)
Mr. MARTINEZ. Mr. Chairman, as
chairman of the Employment Oppor-
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H 9-:)30 CONGRESSIONAL RECORD - HOUSE November 4, 1987
tunities Subcommittee, I rise in sup- Mr. GUNDERSON. Mr. Chairman, care young children, and in the securi-
port of H.R. 1212 banning the use of this is not the most controversial piece ty industries with those gentlemen
lie detectors in the private workplace. of legislation that we will deal with In and women who carry guns in the pro-
H.R. 1212 came out of my subcom- this Congress, but it is very controver- tection of private business and finan-
mittee and passed the House last year sial, and it is not the most important cial institutions and in employee theft.
236-173. This year witnesses from the piece of legislation that we will deal There is over $40 billion a year of em-
American Medical Association, the with in this Congress, but it is impor- ployee theft in our Nation, and get
American Psychological Association, tant. this, over $7,125 a minute is stolen by
and the legal establishment all testa- I would like to take a little bit of employees from the companies they
fled ti.at there Is no basis of scientific time today to provide some back- work with. Yet this legislation says
validity whatsoever that the lie detec- ground on where we are and where I even after that employee is on the job
tor works. Last year we heard from suggest this bill may lead us. First of and has the work record, we are not
the head researcher of the Congres- all. the bill before us. H.R. 1212, is going to allow the polygraph as one of
sional Office of Technology Assess- wrong because of its approach. There the many Investigatory tools to try to
ment study on the issue who thor- is no debate that the polygraph has get at that kind of employee theft.
oughly debunked the validity of the been used improperly across this coun- Then, as I mentioned earlier, the
lie detector. Scientifically, the evi- try in certain cases. So we have vari- Drug Enforcement Administration.
dence is In, the polygraph is no more ous options. We can regulate its use, which supports the use of the poly-
effective for discerning truth and dis- we can limit its use or we can totally graph when properly administered,
honesty than a black voodoo box. ban it. will tell you that over I million doses
Gentleman. I wish that there was a Unfortunately, the legislation before of drugs are stolen each year, and yet
scientifically reliable measure, so that us today takes the absolute ultimate this legislation bans testing.
busine ;ses can effectively deter the extreme of totally banning the use of I would hope today during not only
loss c2 their property and profits. polygraphs except in two isolated ex- the general debate but during the
Hower :r, I can only offer some prag- emptions in the private sector. amendment process that we would try
matic ;,.dvise to employers who face Second, in taking this approach it re- to pursue the responsible use of the
this very real problem: use sound per- jects the fact that 41. of the 50 States, polygraph, which is and ought to be a
sonnel and management methods of plus the District of Columbia, have al- proper and legitimate cfor each
thorough background checks and ready taken the initiative to regulate and every oof us. legitimate concern
should protect
apply narrow audits of inventory and in this area. It is one thing for the ndi abuses . tessho d prove t
cash. Not only are these methods Federal Government to act when the ag vt every the one in However,
cheaper but they can more effectively States are refusing to do their job. But at the the he tame of time the Office must st recognize
target heft than the cumbersome and when 41 States and the District of Co- th th study Office of Technolo-
time-cc time-cc isuming lie detector machines. lumbia have already taken it upon gy Assessment meaningful study of evidence which
In add ion, companies will avoid trou- themselves to properly regulate as said me
validity could be
blesome litigation that are being won they see fit for the conduct of business the polygraph's e
more and more by the complaining in their State, why do we at the Feder- found he he pin the aningf ul area of investigations validity c criminal incidents.
employees. al level want to come in and say to 41 specific
The proliferation of polygraph test- State legislatures, 41 Governors, you Earlier this year. on May 11, we ac-
ing in our Nation is affecting 2 to 3 are all wrong, we at the Federal level cepted an amendment of the gentle-
million Americans annually. Even at a know better than you. man from Florida to establish a per-
90-percent success rate, which is That gets into my second concern, manent polygraph program for nation-
widely disputed, some 300,000 Ameri- which is hypocrisy. This legislation al defense by a vote of 345 to 44. On
cans annually will be falsely accused before us today allows the use of the June 16 of this year by a vote of 414 to
of crimes and thefts that they did not polygraph for the highest national se- nothing we accepted an amendment
commit. The sad part is, the chronic curity in our country. We allow it for by the gentleman from Florida
thief and experienced liar will be able the Department of Defense, we allow On June 16 of this year by a vote of
to beat the lie detector, while hyper- it for the CIA, we say for the most Im- 414 to nothing we said that we ought
sensitive innocent workers will fail the portant national concerns in this coun- to establish a comprehensive embassy
test and have their lives ruined, try it is OK to use the polygraph. But and diplomatic security program.
Mr. Chairman, we need to have con- it Is not OK for the private sector to Mr. Chairman, there are reasons to
trol over the rampant abuse of a prac- use it because it is too unreliable. How consider regulation. There is no justi-
tice which currently has confused the does one justify that kind of inconsist- fication to take the extreme in the leg-
business community into relying on an ency back home to one's constituents? islation before us. We ask you to listen
instrument and process that is fatally We tell the Department of Energy in and debate, to participate and support
flawed and causes long-term harm to this legislation that they can use it be- the amendments so that if we are
innocent workers. Polygraph use is cause nuclear power is too risky. But going to impose mandates on these 41
available now, but it has not effective- in this legislation we tell every public State legislatures, we at least do so on
ly deterred or detected the ongoing utility in the country you cannot use it a reasonable and consistent basis.
theft in our workplaces. in terms of nuclear power because it is Mr. MARTINEZ. Mr. Chairman, I
Finally, I do want to point out that too unreliable. We tell NASA you can yield 5 minutes to the gentleman from
losses from theft in the workplace use it in terms of high technology, but Georgia [Mr. DAanaxl.
should not be attributed soley to the we tell every private firm and science (Mr. DARDEN asked and was given
dedicated workers of the company, but foundation in the country you cannot permission to revise and extend his re-
often are the result of management use it in terms of protecting the high marks.)
level and white-collar pilferage and technology or the biotechnology of Mr. DARDEN. Mr. Chairman, I
embezzlement. These management your industry because it is so unreli- thank the gentleman from California
level and white-collar officials are cur- able. for yielding me this time.
rently exempt from the practice of What kind of message do we send Mr. Chairman, I rise in strong and
polygraph testing. here today with that kind of hypocrisy adamant opposition to the Polygraph
I urge my colleagues to support us and inconsistency? Protection Act. H.R. 1212.
on this bill and vote against the weak- The legislation before us today does Before I get into my discussion of
ening amendments offered today. not learn from what we did last ses- my upposition to the bill in Its present
Mr. GUNDERSON. Mr. Chairman. I sion, it does not build on that. It still form I want to take a moment to com-
yield myself 6 minutes. prohibits the use of the polygraph in mend my colleague. the gentleman
(Mr. GUNDERSON asked and was the area of drugs, it prohibits the use from Montana, Mr. PAr WILLIAMS,
given permission to revise and extend of the polygraph
a residents our day my good
Employment Opportunity Sub-
his r remarks) nursing
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November 4, 1987 CONGRESSIONAL RECORD - HOUSE
committee, the gentleman from Cali-
fornia (Mr. MARTIxEz], for once again
bringing this issue to the floor of the
House of Representatives for debate.
There is no question that this is a sub-
Ject that should and must be dealt
with by this Congress, and I look for-
ward to the debate. And even though
we disagree, Mr. Chairman, on a
number of the provisions in the bill,
and in fact we even disagree on the ap-
proach to be taken, I think special
commendation should go to the gen-
tleman from California [Mr. MARTI-
NEZ] and the gentleman from Montana
[Mr. WII.I.IAass] for the very fair
manner in which they have permitted
the debate to go forward, especially in
the Rules Committee, where we have
now received an open rule so that
whatever is the result of this House,
those of us who oppose the Polygraph
Protection Act cannot say we have not
had a full and fair hearing.
So it is with this statement that I
would like to point out to the chair-
man of the full committee that the op-
ponents of this bill have been dealt
with fairly, and I am most grateful to
the gentleman from California [Mr.
MARTINEZ], the chairman of the sub-
committee, as well as the gentleman
from Montana [Mr. WILLIAMS], for
giving us a chance to fully and com-
pletely debate this very controversial
topic.
Mr. Chairman, in the very famous
words of Alexander Haig, "This is not
an experience I haven't been through
before." Or, in correct grammatical
terms, we have previously discussed
this issue at great length.
This House has gone on record as
supporting the use of polygraphs. Last
year during debate of the Polygraph
Protection Act the House said poly-
graphs are proper for all employees of
government agencies, at all levels of
government, for consultants to the na-
tional security agencies, for employees
of drug-related firms, for security serv-
ice employees, employees at public
utilities, for children's day care center
employees and nursing home employ-
ees.
Incidentally, I will offer an amend-
ment at a later time to exempt em-
ployees of children's day care centers.
Just 6 months ago, Mr. Chairman,
345 Members of this House of Repre-
sentatives said polygraphs were legiti-
mate tools for ensuring our national
security. Just 5 months ago the House
voted unanimously to establish a poly-
graph program for diplomatic and em-
bassy security personnel.
The argument that the polygraph is
some type of hocus-pocus, or witch-
craft, or a torture machine has firmly
been rejected by the Members of this
House. We may not want to admit it,
but by our previous votes we have le-
galized this machine. We have, and
there is no denying it.
Mr. Chairman, I submit that if the
polygraph is a legitimate investigative
tool for these few industries and for
all government employees, it is a le-
gitimate investigative tool for all pri-
vate industry.
The gentleman from Florida (Mr.
YOUNG] and I will once again offer a
substitute amendment which recog-
nizes the inconsistencies in the ap-
proach taken by the Committee on
Education and Labor. Our substitute
takes the necessary steps to correct
any abuses that may be occurring
while still granting the private sector a
decision.
Mr. Chairman, every individual in
this Nation is affected by the practices
of dishonest employees, Just as we
would all be affected by individuals in
the Department of Defense or in the
Department of State who practiced es-
pionage. This House has taken steps to
ensure our national security is not
jeopardized, yet we are considering
eliminating the very tool used by these
departments by passage of this legisla-
tion.
Why is it acceptable, Mr. Chairman,
for the polygraph to be administered
to an employee of the Department of
Agriculture or the Federal Aviation
Administration and yet be disallowed
to the local grocery store owner? Why
can a city or county employee in my
district be polygraphed, but a bank
teller or bus driver cannot be poly-
graphed?
My point, Mr Chairman, is that we
are extremely inconsistent to allow
the use of polygraphs in the public
sector on the one hand and to disallow
them in the private sector on the
other hand.
I say, Mr. Chairman, if there are
abuses in the system, let us correct the
abuses. Let us not eleminate the
system.
I urge Members of this body to sup-
port the substitute amendment as a
reasonable and measured approach to
this issue.
Mr. MARTINEZ. Mr. Chairman, I
yield 5 minutes to the gentleman from
North Carolina [Mr. NEAL].
(Mr. NEAL asked and was given per-
mission to revise and extend his re-
marks.)
^ 1130
Mr. NEAL. Mr. Chairman. I have
several questions concerning the wide-
spread use of polygraph testing and I
would like to engage the opponents of
this legislation in a little colloquy if I
may.
My concerns are on two levels. The
first level is this: It seems to me that
the widespread use of polygraph de-
vices turns the American system of
justice on its head. As we use these in
preemployment screening and even in
other areas, criminal investigations
and so on, it seems to me we are essen-
tially saying to people, "We assume
you are guilty and we want you to
prove your innocence."
And the other area of concern to me
is the wide body of literature indicat-
ing that these polygraph gadgets are
in fact not lie detectors, that there is
no clear indication that these things
H 9531
do what they say they are going to do.
The fact is that polygraph tests are
not reliable.
The problem here is an obvious one;
that there are ways of fooling these
gadgets. So a person skilled in deceiv-
ing the gadget might be entrusted
with very important information, for
instance, in the area of national secu-
rity or other important security infor-
mation.
I would welcome the chance to hear
an answer to these questions.
But first let me elaborate on this
concern: By depending on these gadg-
ets, which Senator Sam Ervin from my
State once characterized as "modern
day witchcraft," we will be letting
people into positions of high responsi-
bility and make available to very
clever people our most important na-
tional security secrets, and on the
other hand, since these things are in-
herently unreliable we will be convict-
ing a lot of innocent people.
Mr. DELAY. Mr. Chairman, will the
gentleman yield?
Mr. NEAL. I yield to the gentleman
from Texas [Mr. DELAY].
Mr. DELAY. I thank the gentleman
for yielding.
Mr. Chairman, I will attempt to ad-
dress the position of the gentleman
that the polygraph is fallible.
Did the gentleman vote for drug
testing? And does the gentleman feel
that drug testing is not infallible? Be-
cause if drug testing, as we know it, is
fallible, then the same idea should be
taken by the proponents of this bill
that we ought to throw out drug test-
ing because it is not 100 percent accu-
rate.
Mr. NEAL. I do not recall any votes
on drug testing at this moment, but if
drug testing is not reliable, and I just
do not know about that at this point,
and that is not the subject under con-
sideration this morning, but if it were
not reliable then I certainly would not
want to subject people to these unreli-
able tests.
Let me say one other thing about
drug testing: Insomuch as we use drug
testing in a broad way to say to people,
"We are assuming you are guilty of
some illegal activity and it is up to you
to prove your innocence," I would be
very Leary of it. We have a responsibil-
ity here, my friends, no matter what
the State legislatures around this
country have done, of protecting the
Constitution. And the Constitution is
clear concerning our system of justice.
It is what separates us from the totali-
tarian systems.
We assume our people to be inno-
cent until proven guilty; under the to-
talitarian systems people are assumed
to be guilty and it is up to them to
prove their innocence. That is precise-
ly what I believe the widespread use of
lie detectors, so-called lie detector
tests, would be doing.
Mr. DELAY. If the gentleman will
yield further, does not the polygraph
give the opportunity to those employ -
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H 9532 CONGRESSIONAL RECORD - HOUSE November 4, 1987
ees who have been wrongfully accused screening amounts to a fishing expedi- graphs in the private sector seems to
of stealing or raping or whatever they tion, and often not a very lengthy one. head us in exactly the wrong direction.
have been accused of, the opportunity This bill would prohibit the 10-minute Indeed, many employers have deiiber-
to use this test procedure along with quickie and all other polygraph tests. ately banned their use. We do not
other types of examinations? Does not But the Darden-Young substitute and need polygraphs in a free society like
the polygraph give the opportunity, as the various industry exemptions that ours. I urge you to join us in support-
it has in this Nation for years, to clear will be offered do absolutely nothing to ing H.R. 1212, and rejecting weakening
their name, keep them out of jail, prevent the cheap, quick polygraph amendments.
keep their jobs and to keep their repu- test. The CHAIRMAN. The gentleman
tation? I think it should be known The substitute, for example, says from California [Mr. MARTINEZ] has 17
that the polygraph can also be used as that no more than one exam can be minutes remaining and the gentleman
a tool to prove that you are innocent. scheduled per hour. But that language from Wisconsin [Mr. GUNDERSON] has
Mr. NEAL. I am not aware of that- raises more questions than it answers. 20 minutes remaining.
Let me ask the gentleman to describe There is nothing in that language to Mr. MARTINEZ. Mr. Chairman, I
that scenario. Do you mean where an compel that the test last for an hour, yield 3 minutes and 30 seconds to the
employee requests a lie detector test? and presumably unscheduled walk-on gentleman from Texas [Mr. BROOKS].
Mr. DELAY. That is correct. business could be conducted. (Mr. BROOKS asked and was given
Mr. NEAL. That is a different ques- The fact is that you cannot regulate permission to revise and extend his re-
tion. the use of polygraphs. It has been marks.
Mr. DELAY. No, the gentleman tried by the States, and those efforts BROOKS. I thank the gentle-
would destroy any industry that relies have failed. Enforcement is virtually man Mr. for yielding.
on polygraph testing. You would not impossible, and employers circumvent an n. I rin strong sup-
company able to seek employment with a the law by testing employees in one Mr. Chairman. rise i Employee P up-
1212-
company that facilitates polygraph State and then transferring them to an- port
Act the of 1987. This ly
testing because there will not be any other. Regulating the polygraph does graph Protection
in business. nothing to redress its inherent flaws. will eliminate the widespread and
Mr. NEAL. Well, it is my under- In fact, polygraph usage may actually growing use of so-called lie detector
standing this legislation prohibits the increase once employers believe the tests as a condition of employment in
screening use of the lie detector test. Government, be it State or Federal, has America. enforcement will not block
s by
agencies for actual
Mr. GUNDERSON. Mr. Chairman. I sanctioned its use. The Darden-Young law
yield 4 minutes to the distinguished substitute acknowledges the problems investigations. Rather, it is aimed at
ranking member of the Committee on with polygraphs, but seeks to perpet- stopping the growing abuse of poly-
Education and Labor, the gentleman uate their use in the private sector. graphs used as screening tests for em-
from Vermont [Mr. JEFFORDS]. One of the most troubling things ployment. Private employers Increas-
(Mr. JEFFORDS asked and was about polygraphs is their perverse ingly are forcing their employees to
given permission to revise and extend impact. The scientific evidence indi- take such tests as a condition of em-
his remarks.) cates they are more likely to tar an in. ployment even though they are not
Mr. JEFFORDS. I thank the gentle- nocent person as guilty than are to suspected of any wrongdoing. This
man for yielding time to me. identify a thief. An honest person is practice is un-American-it assumes
Mr. Chairman, I rise in strong sup- concerned about telling the truth, a everyone to be guilty until they prove
port of the bill before us. The protec- liar is not. The guy on the Isuzu ads their innocence.
tions it will provide for workers are would pass a polygraph with flying My views on polygraphs have been
long overdue. My only regret is that colors. George Washington might developed over many years, as a
our colleague, Stew McKinney. is not have had trouble. member of the House Government
with us today to add his voice to ours. And the more fundamental question Operations Committee. This commit-
He was a champion of this cause, and is: Why try to regulate a machine that tee has overseen the Government's
a good friend. We are here today does not work? The Office of Technol- polygraph programs since the early
largely due to his hard work over ogy Assessment thoroughly studied 1960's, and has strongly recommended
many years. the polygraph and found no evidence against the use of polygraphs for
There will no doubt be a lot of dis- that it had any validity in the employ- screening in the Federal Government
cussion through the course of today, ment setting. Aside from studies by in four separate reports.
as we debate this bill and the various the polygraph industry, no objective years ago, the Office of
amendments, but it all really boils scientist has found it to be much more Several yago surveyed the
down to one simple question. Do poly- accurate than flipping a coin. That is Technology y literature Assessment en p survey d the
va-
graphs work-especially in preemploy- why both the American Medical Asso- scientific en for the Government Operations
ment screening? ciation and the American Psychologi- lidity tIn Its report. the OTA
My response, and the response of cal Association support the bill. Committee. oothat there was no heenti A
every objective scientific observer, is The scientific theory is backed by concluded cally acceptable study to support the
that they do not work in the employ- our real world experience. Although of polygraphs study for screening p the
ment setting. you will hear statistics on the losses use and that any validity that the
We are not here today to debate suffered by business-and those losses poses.
whether or not there is crime in the are very real-the one statistic you will polygraph test may have for specific
workplace. There is crime: by white not hear is how much the polygraph incident use would likely decrease dra-
collar workers as well as blue. But the reduces those losses. Retail theft is no matically in a screening context.
fact there is crime does not justify the greater in Vermont, where the poly- In a recent update, the OTA reached
unbridled use of the polygraph. graph is banned, than it is in Georgia, similar conclusions. In fact, they cited
On just about every other labor bill where it is regulated. Casino losses are new studies which seriously question
you will hear the calls to extend the no greater in New Jersey, where poly- the validity of polygraph testing.
bill's provisions to Congress. I say this graphs are outlawed, than they are in Using figures from a National Security
not to belittle those efforts, because I Nevada, which has few restrictions. Agency program. polygraphs generat-
happen to be part of them. But the si- There are clearly better ways to ed error rates of 27 percent. That is,
lence on this polygraph issue is deaf- limit theft, from both an employer errors were made nearly one-third of
ening. No one seems to want to require and an employee's perspective, than the time. Further, other laboratory re-
preemployment screening of Members by strapping someone into polygraph. search indicates that those trained in
of Congress. At a time when many of us are calling simple countermeasures to beat the
This, in fact, is where the vast ma- for greater flexibility on the part of polygraph are successful in fooling the
Such cooperation, c the growing uslabor-management y- result 5 percent of the tim~ncluaive
jority of polygraph h employers. adminis-
tered by
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CONGRESSIONAL RECORD - HOUSE H 9533
Since OTA's studies. many propo-
nents of polygraph use have backed
away from their claims of high poly-
graph validity. Instead, they argue the
concept of utility. They point to nu-
merous instances when the polygraph
exam, or the threat of the exam, has
been useful in eliciting important in-
formation or even confessions.
We should not confuse validity with
utility. There is no question that the
polygraph can be a very intimidating
tool and may have some utility in that
regard, Just as the dunking stool, the
rack, and the firing squad have had in
past centuries.
That would convince you to confess
to damn near anything, would it not,
Congressman?
Mr. DARDEN. Mr. Chariman, will
the gentleman yield, the distinguished
chairman of the Committee on Gov-
ernment Operations?
Mr. BROOKS. I yield to the gentle-
man from Georgia [Mr. DARDEN].
Mr. DARDEN. I thank the gentle-
man for yielding.
Mr. Chairman, would the distin-
guished chairman of the Committee
on Government Operations agree that
as the chairman of the Committee on
Government Operations the chairman
has very broad powers and could well
have brought legislation in this body if
he believed so strongly that the poly-
graph is witchcraft and torture, to
eliminate its use throughout the coun-
try, not just In the private sector but
for Government employees as well?
And why has not the distinguished
chairman brought legislation here to
abolish the use of this machine to pro-
tect Government employees?
Mr. BROOKS. I would in one
second. We did not have that jurisdic-
tion. We had jurisdiction to examine
what they are doing, but not to pass
the legislative authority.
Now the Labor Committee has got it,
and Judiciary may be able to get into
it by eliminating the production of
this kind of junky equipment, as being
illegal advertising, you know, holding
out that it would do something. I am
looking for another way to introduce
the bill.
As former President Nixon said
about polygraphs on the Watergate
tapes, "I don't know how accurate
they are, but I do know that they'll
scare the hell out of people."
This elaborate con operation should
not be allowed to be institutionalized
as a feature of our Nation's workplace.
It is inherently offensive to American
concepts of Justice.
Last year, the world's largest associa-
tion of psychologists condemned the
widespread use of polygraph tests for
screening purposes. The American
Psychological Association concluded
that conducting such tests by psy-
chologists could be unethical. The
group found the scientific evidence re-
garding the validity of polygraphing
to be "unsatisfactory and particularly
poor concerning polygraph use in em-
ployment screening." They recognized
the "great damage to the innocent
persons who must inevitably be la-
beled as deceptors" in such screening
situations.
Recently, a scientific council of the
American Medical Association his also
questioned the use of polygraph test-
ing.
We should not allow passing some
bogus lie detector test to become a
condition of employment in this coun-
try. I urge you to vote for H.R. 1212
and against all weakening amend-
ments.
0 1145
Mr. MARTINEZ. Mr. Chairman. I
yield 1 minute to the gentleman from
Minnesota [Mr. PxxaYl.
(Mr. PENNY asked and was given
permission to revise and extend his re-
marks.)
Mr. PENNY. Mr. Chairman. I urge a
"yes" vote on H.R. 1212, the Employee
Polygraph Protection Act and a "no"
vote on the Darden-Young substitute
and other amendments.
H.R. 1212 prohibits the use of a
polygraph in most employment situa-
tions. Currently, 10 States have simi-
lar statutes. In addition. 12 States go
even further by effectively banning all
use of such tests by employers.
Plain and simple-if you believe a
polygraph is an imperfect tool and
that its results may be unreliable-
then you should support H.R. 1212
and oppose amendments.
The Darden-Young substitute allows
the use of polygraphs in most in-
stances but institutes a Government
regulatory system. Get that-Govern-
ment regulations! I can't believe the
business community prefers this sub-
stitute.
The rights of America's workforce
are at stake in this vote.
We should make it clear that the
polygraph is an inappropriate job
screening mechanism.
Vote "no" on the Darden-Young big-
government and redtape substitute
and vote "yes" on the bill to protect
employee rights.
Mr. GUNDERSON. Mr. Chairman, I
yield 4 minutes to the distinguished
gentleman from Iowa [Mr. GRANDY], a
member of our subcommittee.
(Mr. GRANDY asked and was given
permission to revise and extend his re-
marks.)
Mr. GRANDY. Mr. Chairman, I
thank the gentleman for yielding time
to me.
Mr. Chairman, today the House is
considering an issue basic to the Amer-
ican tradition of civil rights. The pre-
sumption of innocence until guilt is
proven has been a right Americans
have long protected. It is a presump-
tion which lies at the very heart of the
American legal system. Furthermore,
it is a right to which this body is
obliged to uphold.
I am sure we are all aware of the
many violations of privacy rights
which have occured from the abuse of
the polygraph. The lives and reputa-
tions of countless innocent individuals
have fallen victim to the harsh reali-
ties of an imperfect and perhaps even
imperfeetable test. The Committee on
Education and Labor heard testimony
from several organizations which
pointed out the explosive use of these
tests over the past several years. Al-
though estimates on the validity and
accuracy of the tests vary, It can be
stated unequivacally that many inno-
cent people have failed the exam. In
point of fact, the exam has failed in-
nocent people. Interestingly enough,
this exam has also failed by proclaim-
ing certain guilty individuals to be in-
nocent.
Clearly, the time has come for Con-
gress to address this issue. I believe
that the amendments that will be of-
fered by the ranking minority member
of the Employment Opportunities
Subcommittee, the gentleman from
Wisconsin [Mr. GuNnuasoN] would
serve to protect the American worker
while maintaining the ability of em-
ployers to control workplace crime.
The amendment to which I refer
would prevent preemployment testing.
which has proven to be the most inac-
curate type of polygraph test adminis-
tered today. At the same time, the
amendment would allow the use of
polygraph testing when it has proven
to be an effective tool in uncovering
crime, namely, after a specific crime
has been committed. By permitting
the polygraph to be used in a con-
trolled environment with restrictions
on the questions asked, minimum re-
quirements for the length of the test,
and by putting the polygraph in
proper perspective as only one tool
among many, we will likely see a great
improvement in the accuracy of poly-
graph testing.
I urge my colleagues to support the
Gunderson amendment and extend to
the American worker the rights which
criminals already have.
Having said that, Mr. Chairman, I
would also have to say that although I
support their efforts, I will oppose all
exemptions to this bill for obvious rea-
sons. If the test is ineffective for day-
care, it will also be ineffective for
nursing homes, and if we are going to
exempt day care, are we not going to
exempt kindergartens?
If we are going to exempt nursing
homes, are we not going to exempt
nurses or home health care deliverers?
In other words, Members have a
choice in these exemptions of selecting
between a sin of omission and a sin of
commission. There is no way to work
this bill unless we pass the Gunderson
amendment.
Mr. Chairman, let us support accura-
cy. Let us support the test that does
work and reduce the false positives.
H.R. 1212 without the Gunderson
amendment is unacceptable because it
is a mixture of protection for the
American worker and punishment for
the American businessman.
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R9534 CONGRESSIONAL RECORD - HOUSE ,Vouember 4, 1.98`
Mr. NE-AL. Mr. Chairman, will the equipment. Actually, the polygraph is any amendment that might be offered
gentleman yield? only as good as the examiner. to weaken the bill.
Mr. GRANDY. I yield to the gentle- If the Members allow us to adopt I speak from practical experience. I
man from North Carolina. the Darden-Young substitute, we are was the subject of a polygraph exami-
Mr. NEAL. Mr. Chairman, I would going to require trained professional nation, if you would, when I was in the
like to ask the gentleman how he can examiners who know what they are Manhattan district attorney's office in
support the amendment which encour- doing and who have a law to go by New York City during the summer of
ages an increased use of polygraphs if when they administer these examina- 1972. Each of us was given a polygraph
he says, as he did in his opening state- tions. examination, not as a condition of em-
ment, that he thinks the polygraph Someone else said there is nothing ployment but to inform us of its oper-
test is inherently inaccurate. in the Darden-Young substitute to ation, its use, and its validity or lack
Mr. GRANDY. Mr. Chairman, I prevent a quickie polygraph exam. thereof.
thank the gentleman for asking that That is not accurate. That speaker has In our group there were four individ-
question because it plays into the data not read the substitute, because we uals. We controlled the questions that
that we received in testimony on the provide in the substitute that the ex- were asked, and we answered in a neg-
Employment Opportunity Subcommit- aminer shall set aside a minimum of I ative fashion to each. Two questions
tee which shows specifically that when hour to conduct that examination. were true, two questions were false. In
the test is administered for incidents Now, there are those who say that my instance. I flunked that examina-
specific after the fact, the increase in the polygraph does not work and tion because the examiner mispro-
accuracy raises dramatically. So in should not be used. In the State of nounced the name of the high school
that case we have perhaps an accepta- Florida, for the last 20 years poly- that I graduated from. A woman in
ble gauge to judge crime in the work- graph examinations have been used. our group also flunked the examina-
place. As a preemployment tool, I There were 300,000 last year alone. tion because apparently she had a re-
probably agree with the gentleman. Before a polygraph examination can action when the examiner mispro-
Mr. NEAL. Mr. Chairman, let me ask be administered in the State of Flori- nounced the place of her birth. So out
the gentleman this: The accuracy da, the examinee must be advised that of that group, in a very controlled cir-
raises to what level? he has the right to complain if he is cumstance, we had a 50-percent ratio.
Mr. GRANDY. Mr. Chairman, I am not satisfied with the conduct of the I am adamantly opposed to the use
sorry. Will the gentleman repeat that? examiner, and he is told where to com- of these devices in our society. They
Mr. NEAL. The gentleman said the plain and to whom. do not have a place in our society.
level of accuracy is raised considerably There were 300,000 examinations Mr. Chairman, my support for H.R.
when the test is not used for preem- last year in Florida, Mr. Chairman, 1212 is not due exclusively to my anec-
ployment screening but in fact used and there was one complaint. In the dotal experience. The hard, uncontest-
for crime-specific purposes. What is year before that there were in excess ed truth is that, in an employment sit-
the level of accuracy? of 300,000 polygraph tests adminis- uation. there is no scientific data to
Mr. GRANDY. Mr. Chairman, I tered in the State of Florida, and validate the use of polygraph ma-
think the gentleman is asking me there was one complaint. As a matter chines. All agree that test validity is
whether It is a hundred percent, but of fact, Florida's Secretary of State at primarily affected by the examiner,
that clearly is not it. It is higher than the time testified before the other the subject and the setting. The fact
the 40 to 60 percent that we have seen body last year about the polygraph, remains that no one, regardless of ex-
as a preemployment figure. and I take that information from his perience, can determine from a poly-
The CHAIRMAN. The time of the statement. graph chart why a subject responded
gentleman from Iowa [Mr. GRA'aDY] Mr. Chairman, I would like to say in a certain way, whether out of guilt,
has expired. something to the Members, in case fear, anger, humiliation, or intimida-
Mr. GUNDERSON. Mr. Chairman, I they missed it about what one of our tion. The ironic truth is that lie detec-
yield 3 minutes to the gentleman from colleagues said. When our colleague, tor tests have a built-in bias against
Florida [Mr. YOUNG]. the gentleman from Texas [Mr. truthful people. The more honest
Mr. YOUNG of Florida. Mr. Chair- BROOKS], took the microphone, he said workers are, the more likely they will
man, if this bill becomes law in its something very key to this debate. He fail the polygraph because of their
put out heightened d-
of having their
present form or exempt with
certain additional
phase four reports suggesting thatS the poly- honesty challenge
amendments of of the economy or with the substitute graph should be outlawed totally, in- While polygraphs are unfair to all
to be offered by the gentleman from eluding for the Government. Let us workers, I am concerned about their
Georgia (Mr. DARDEN] and myself, or understand what he is saying. Mr. impact on minorities. In testimony
if it becomes law just like it is written Chairman. When he says we should before the Subcommittee on Employ-
today, there will be the use of poly- exclude them from the Government, ment Opportunities, the Legal Action
graphs throughout America. Let us he is saying that the Central Intelli- Center reported that the tests have a
understand that. gence Agency cannot use them, the substantial discriminatory effect on
The substitute that the gentleman Defense Department cannot use them, minority job applicants and employ-
from Georgia [Mr. DARDEN) and I will and that none of our national security ees. There are two reasons for this
offer answers to most of the com- agencies can use them. He is saying finding. First of all, the polygraph is a
plaints that we have heard from those that none of our Intelligence secrets measure of physiological functions,
Members who support the bill. They can be protected by the use of the and there is research evidence of
are concerned that the polygraph ex- polygraph. ethnic and group differences in physi-
amination will not be given properly The CHAIRMAN. The time of the ological reactivity to stress which may
or that It will be done hurriedly. The gentleman from Florida [Mr. YOUNG] affect the polygraph's validity when
purpose of our substitute is to guaran- has expired. used on particular groups. Second, the
tee that wherever polygraphs are used Mr. MARTINEZ. Mr. Chairman, I inherent subjectivity of determina-
In America, they will be used by yield 2 minutes to the gentleman from tions based on the polygraph creates
trained professionals with numerous Indiana (Mr. VlsctosxY]. extensive opportunities for conscious
safeguards to the person being exam- (Mr. VISCLOSKY asked and was or unconscious biases and cultural
ined. given permission to revise and extend stereotypes to affect the decisions
Again I say there is going to be the his remarks.) made by polygraph examiners.
use of the polygraph under this bill. Mr. VISCLOSKY. Mr. Chairman, I So what do we know about poly-
no matter what form it takes when it rise in strong support of H.R. 1212, the graphs? We know that there is no re-
is passed. Someone has called it a Employee Polygraph Protection Act, search to validate their "findings." We
gadget. Maybe it is It is a piece of and I also rise in strong opposition to know that they do not gauge what
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November 4, 1987 CONGRESSIONAL RECORD - HOUSE
they are perceived to, and we know
that there is growing evidence to indi-
cate that they are used in a discrimi-
natory fashion. There are less drastic,
more effective ways to deter employee
theft and abuse that do not Infringe
upon an Individual's civil rights. I do
not understand why criminal's are pro-
tected from polygraph testing. but
American workers are not.
In conclusion. I can only observe
with redress that we are faced with an
administration that wants everyone to
take a polygraph test to get a job, and
take a drug test to keep the job, accept
a minimum wage for the job. I urge
my colleagues to join with me and sup-
port H.R. 1212 and to oppose attempts
to weaken it.
Mr. GUNDERSON. Mr. Chairman,
will the gentleman yield?
Mr. VISCLOSKY. I am happy to
yield to the gentleman from Wiscon-
sin.
Mr. GUNDERSON. Mr. Chairman,
is it the gentleman's intent, then, to
offer an amendment during the debate
today that will prohibit the use of the
polygraph for national security pur-
poses or prohibit its use for our for-
eign policy personal as well?
Mr. VISCLOSKY. It is not, because
at this point I do not believe that the
majority of my colleagues in this
Chamber agree with me on that par-
ticular subject. I am disappointed at
that, and I regret that disappoint-
ment.
Mr. GUNDERSON. Why did the
gentleman vote for the Mica amend-
ment?
The CHAIRMAN. The time of the
gentleman from Indiana [Mr. VIscLo-
spcYl has expired.
Mr. GUNDERSON. Mr. Chairman, I
yield 2 minutes to the gentleman from
Utah [Mr. Nim.soNl.
(Mr. NIELSON of Utah asked and
was given permission to revise and
extend his remarks.)
Mr. NIELSON of Utah. Mr. Chair-
man. I rise in support of H.R. 1212,
the Employee Polygraph Protection
Act.
I am committed to protecting the
welfare of businesses and the consum-
ers. Many of my colleagues and those
in the areas of commerce feel that
polygraph testing is necessary for pre-
ventive and prosecutorial measures.
As a former professor of statistics,
however, I am very concerned with the
validity in which the polygraph can
accurately detect truth or deception.
Taking information published by the
U.S. Congress Office of Technology
Assessment, it is surprising how inac-
curately these tests have been inter-
preted. The results can be summarized
as follows:
For guilty persons:
Shown to be guilty: 65 percent.
Shown to be innocent: 18 percent.
Those who had inconclusive tests: 17
percent.
For innocent persons:
Shown to be guilty: 19 percent.
Shown to be innocent: 69 percent.
Those who had inconclusive tests: 12
percent.
It is easy to see that polygraph test-
ing acts in a detrimental way for inno-
cent persons.
As an example, assume that 5 per-
cent of the people being screened are
actually guilty. Also assume a very
high validity rate of 90 percent. In this
situation, the polygraph would only
have a 33 percent predictive value,
since for every person correctly identi-
fied as deceptive, two innocent people
would be wrongly classified as decep-
tive. It is a matter of simple mathe-
matics that in order to catch 90 per-
cent of the guilty individuals, 68 per-
cent of the people who fail the poly-
graph test will have been innocent.
The Irony is that by basing more and
more important social decisions on the
results of polygraph tests, we may be
producing an effect opposite to that
intended, firing the most honorable
police officers, refusing to hire the po-
tentially most reliable employees,
while staffing sensitive positions with
those lucky or clever enough to know
how to beat the polygraph.
I urge my fellow colleagues to vote
in favor of H.R. 1212.
^ 1200
Mr. MARTINEZ. Mr. Chairman, I
yield 1 minute to the gentleman from
New York [Mr. BIAGG1].
(Mr. BIAGGI asked and was given
permission to revise and extend his re-
marks.)
Mr. BIAGGI. Mr. Chairman, I thank
the gentleman for yielding me this
time.
Mr. Chairman, I rise as an original
cosponsor and strong supporter of
H.R. 1212, the Employee Polygraph
Protection Act.
As New York's ranking member on
the House Education and Labor Com-
mittee, I have heard the testimony
about the abuse, misuse and overuse
of polygraph testing in the private
sector. However, I believe this legisla-
tion offers an effective and responsible
solution to that problem. Simply put,
it provides labor with important and
much needed protections.
As a 23-year police veteran, I believe
there are certain very specific situa-
tions where the polygraph can and
should be used to help prevent crimes,
and to detect criminals once a crime
has been committed. This bill already
has some specific allowances for those
situations, and I will be supporting ef-
forts later today to ensure that other
exemptions are added as well, includ-
ing one for certain segments of the
private security industry.
Those exemptions will provide for
the responsible and necessary use of
the polygraph, while allowing the re-
maining provisions in the bill to pre-
vent the abuse, misuse and overuse of
the lie dector test. This is a very fair
and balanced approach and one that
deserves our full support.
Finally, Mr. Chairman. I want to
commend the author of the bill, Mr.
H 8535
Wn.uiuss, and the distinguished chair-
man of the Employment Opportuni-
ties Subcommittee, Mr. MAsvrNaz, for
their untiring efforts on behalf of this
important piece of legislation.
Mr. GUNDERSON. Mr. Chairman, I
yield 2 minutes to the gentleman from
Illinois [Mr. FAwar.L).
(Mr. FAWELL asked and was given
permission to revise and extend his re-
marks.)
Mr. FAWELL. Mr. Chairman, I
thank the gentleman for yielding me
this time.
Mr. Chairman. I rise in opposition to
H.R. 1212. which would ban the use of
polygraphs In the private sector, and
urge my colleagues to support the var-
ious amendments which will be of-
fered later today to allow the use of
polygraphs under regulated and limit-
ed circumstances.
The polygraph is an important tool
for deterring employee theft. Employ-
ee theft, which amounts to a hidden
tax on all products purchased by con-
sumers, is estimated at $40 billion per
year. A 1980 University of Minnesota
study concluded that 60 percent of the
employees surveyed from nine retail
organizations admitted to stealing
from their employers.
If anything, the polygraph at least
serves as a tool which deters many em-
ployees from ever considering to steal
from their employers. H.R. 1212, by
banning the use of polygraphs alto-
gether in the private sector, takes
away this deterrent.
Proponents of H.R. 1212 also ques-
tion the validity of polygraphs and the
accuracy of test results. Yet, the bill's
proponents undermine their : rgument
when they allow Federal, : ate, and
local governments to contin e to use
polygraphs. If the bill's proponents
think that the result of polygraphs
are not valid in the private sector, how
can they possibly be valid in the public
sector?
Ironically, the House already this
year has recognized the validity of
polygraphs when it appr+,.ed an
amendment to the defense ai thoriza-
tion bill which would establis i a per-
manent polygraph program for nation-
al defense agencies. The House en-
dorsed that amendment, and the valid-
ity of polygraphs, by a vote of 345 to
44.
Either polygraph results are valid or
they are not? We can't have it both
ways.
If there are problems with the way
polygraphs are administered in the
private sector, H.R. 1212 is the wrong
response. Because Congress has al-
ready recognized that polygraphs do
work in the Federal Government, at-
tempts to ban their use in the private
sector is high-handed hypocracy.
Instead of banning polygraphs alto-
gether, my colleagues should support
the Young-Darden substitute amend-
ment. The substitute is a reasonable
and responsible alternative which
allows private-sector employers to con-
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CONGRESSIONAL RECORD - HOUSE November 4, 1987
tinue to use polygraphs under strict
guidelines.
The Young-Darden substitute estab-
lishes minimum Federal standards for
the use of polygraphs in the private
sector and does not preempt more re-
strictive State laws. Individual rights
are also protected. An employer could
not deny employment, discharge, or
discipline an individual based solely on
the results of a polygraph exam.
The substitute also places strict re-
quirements on polygraph examiners.
Examiners are prohibited from asking
questions pertaining to an individual's
religious, racial, or political beliefs,
union affiliation, of sexual preference.
Tougher training standards are re-
quired for examiners, and an examiner
could not give more than 10 polygraph
tests per day.
More important. y. the substitute
continues to resp ct the right of
States to regulate the use of poly-
graphs, whereas H. .t. 1212 imposes an
outright Federal ban on their use in
the private sector.
I urge my colleagues to reject H.R.
1212 as a hypocritical and irrational
response to the so-called polygraph
problem and, instead, support the
Young-Darden subs itute as a respon-
sible alternative.
Mr. MARTINEZ. Mr. Chairman. I
yield 1% minutes o the gentleman
from Ohio [Mr. TR.FrcAN'rl.
(Mr. TRAFICANT asked and was
given permission to revise and extend
his remarks.)
Mr. TRAFICANT. Mr. Chairman. I
thank the gentleman for yielding me
this time.
Mr. Chairman, I find this debate
very interesting. Richard Speck killed
eight nurses, and he was not forced to
take a polygraph. Neither was Charles
Manson or the Son of Sam.
Your 18-year-old daughter going out
for her first job, never accused of any-
thing, is going to have to take a poly-
graph.
Companies that rely on polygraphs
have more theft than those that do
not. The polygraph will never replace
good personnel management and back-
ground screens; and if this Congress
can continue to fortify the rights of
Speck and Manson, we should assist
the American workers in some basic
civil rights, too.
What about the workers coming into
the company that pays minimum wage
and says, we find out that you could
afford to pay more. We have a collec-
tion bargaining agreement.
Will the company have to take a lie
detector test? This is a rights vote, and
what separates us from the Soviet
Union is the debate that is going on in
this House today.
It is a rights vote. I support this bill.
and any amendment to weaken it. I
will speak out against it.
Mr. GUNDERSON. Mr. Chairman. I
yield 3 minutes to the gentleman from
Texas (Mr. DELAY).
(Mr. DELAY asked and was given Mr. NEAL. Does the gentleman have
permission to revise and extend his re- any evidence?
marks.) Mr. DELAY. Mr. Chairman, reclaim-
Mr. DELAY. Mr. Chairman, I thank ing my time, and I will tell the gentle-
the gentleman for yielding me this man how accurate they are.
time. They are not from some study the
Mr. Chairman, this debate is incredi- gentleman cut out from the Institute
ble. If the Members look at the bill of Justice, but accuracy of the practi-
and the cosponsors of the bill, it will cal marketplace.
show the Members the irony of H.R. If they were not accurate, companies
1212. would be wasting their money using
It seems interesting to me that the them. They use them because they are
proponents of the bill, most of them, 85- to 95-percent accurate.
criticize the CIA, the FBI, law-enforce- Mr. MARTINEZ. Mr. Chairman, I
ment agencies for Gestapo tactics. yield 2 minutes to the gentleman from
Yet, they are the very agencies that Texas [Mr. ANDREWS].
they are exempting in this bill and Mr. ANDREWS. Mr. Chairman, I
going to allow to use this abusive and thank the gentleman for yielding me
intrusive polygraph. this time.
These are also the very people that private industry does have a real
claim they protect labor, and by doing problem, and that is in screening em-
so, ill protect jobs. Yet, passing 10 ,000 ployees and trying to avoid theft.
b
, No. 1, they are destroying 1 The answer, I believe, does not lie
job, by putting out and wiping g out out
10,000 businesses that administer poly- with the polygraph machine, with a lie
detector.
graphs.
No. 2, polygraphs vindicate employ- We know from the estimates we
ees from accusations that could cost have heard here in the debate today
them their jobs and their reputations, that they are only accurate some-
and they are going to wipe that out. where between 8 and 10; and 25 per-
The same proponents of this bill are cent of the time they are fallible.
also the very ones that say they are They do not work.
consumer advocates. Yet this bill will The response for business is to do it
remove one of the tools that is used to the old-fashioned way, to carefully
fight theft that results in higher screen their prospective employees, to
prices. We ought to call this bill the examine their recommendations, to
Criminal Protection Act of 1987. talk to their previous employers, but
The advocates also claim to be the not a fallible lie detector.
protectors of children, elderly, and of I served 4 years in the district attor-
women. Yes, these are the same people ney's office in the Houston area. Most
that want to take away the tools that of that time I worked in prosecuting
would keep the child abuser out of the organized crime cases and major drug
day-care center, keep those that mis- rings in the Texas area.
treat the elderly out of the nursing I am telling the Members, time and
home, and keep the rapists and the time again, the lie detector proved un-
thieves out of personal residences. workable and fallible, and was not a
I have an amendment that will useful tool, even in the very most com-
exempt pest-control companies, and I tent hands.
will use this amendment to show the In one instance I tried a defendant
Members how ridiculous this bill is, who robbed a camera store in a small
and show the Members example after shopping center. He was covered in a
example. hood in a jumpsuit, and at the point of
In one case i San Antonio, being a gun in about 3 minutes he robbed a
was a rapist that t was kept from yeinyoung woman of the money in the
hired by a pest control company be- store.
cause of the polygraph exam and He had six alibi witnesses, and he
other test procedures. If you as home- took three polygraph tests. Two were
owners want to take away the ability administered by the police depart-
of screening people, rapists and meat. He passed all three.
thieves, out from being able to come State was prepared to dismiss
into your home, then you should sup- The the young woman over
port this bill. If you do not, and if you the and case, over but t the y that this is the
want to keep these people out of these
homes, and they do come in unattend- man that robbed me.
ed, then vote for my amendment. The case was tried, and I wondered
Please remember that there are all whether the guilty verdict and the 15
kinds of examples of horror stories of years that the jury gave that defend-
people going in to service a home and ant were correct. Two weeks later they
not only raping but stealing. brought the defendant into the court-
Mr. NEAL. Mr. Chairman, will the room manacled and ready to be sent
gentleman yield? away.
Mr. DELAY. I yield to the gentleman Everyone in the room but the jury
from North Carolina. knew that that man had passed those
Mr. NEAL. Mr. Chairman, I thank lie-detector tests. He leaned to the
the gentleman for yielding. bailiff, and he whispered to him, "You
Is it the gentleman's position that know, if I had killed that young
these things are accurate? woman, today I would never be in this
Mr. DELAY. Absolutely. mess now."
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November 4, 1987 CONGRESSIONAL RECORD - HOUSE H 9537
They are fallible, they do not work, Mr. Chairman, I urge support for There has been much made here on
and it is very important by this bill this legislation. I am the prime spon- the floor of the House about the use
that we limit their use as much as we sor of this bill. of the lie detector by the Federal Gov-
can. The Members are going to be voting ernment. Yes the Federal Government
Mr. GUNDERSON. Mr. Chairman, I today on whether or not to halt what uses them. Two percent of the tests
yield 1 minute to the gentleman from is an absolute epidemic in the growth given last year were given by all public
Texas [Mr. DELAY]. of the use of the lie detector gadget in agencies, including the Federal Gov-
Mr. DELAY. Mr. Chairman, I thank the American workplace. ernment. But the Federal Government
the gentleman for yielding. One hundred eighty-two of the gives them in ways far different than
I wanted to ask the gentleman from Members have joined me in cosponsor- private employers do.
Texas [Mr. ANDRSwsl, my good neigh- ing this legislation. It has the support The Department of Defense is a user
bor and friend from Houston, does the of the American Medical Association, of lie detectors, but this Congress
gentleman believe that drug tests are the American Psycological Associa- limits the number of lie detector ex-
100 percent infallible? tion, the AFL-CIO, the American Civil aminations that can be given by that
Mr. ANDREWS. Mr. Chairman, will Liberties Union. Department. The Department of De-
the gentleman yield? These organizations join me in op- fense itself has regulations that in-
Mr. DELAY. I yield to the gentleman posing all specific exemptions and volve the preinterview, the test itself is
from Texas. weakening substitute. given under specific controlled condi-
Mr. ANDREWS. Mr. Chairman, I Similar legislation passed this House tions, postinterviews, and again they
thank the gentleman for yielding. last year by a vote of 236 to 173; and it limit the number they give. Then they
Of course not, but we can be rela- had, as does this bill, broad bipartisan forbid themselves down at the Depart-
tively sure that they are more accu- support. ment of Defense to use the lie detector
rate. as the sole determinant as to a per-
If I could answer the gentleman's ^ 1215 son's questionability or lack or ques-
question? Yes, there is an epidemic explosion tionability.
Mr. DELAY. Are they 80 percent in- in the growth of the use of lie detector Do they work? Well, they might be
fallible? in the United States. The American 85 percent effective, according to the
Mr. ANDREWS. If I could have an Polygraph Association tells us that people who support the gadget.
opportunity to answer your question? last year there were 2 million lie detec- Now, let us see what that means. Let
Mr. DELAY. Are they 80 percent in- tors tests given in the United States, us say that an employer has 1,000 job
fallible, 90 percent? and that number has tripled in just applications and the employer sus-
Mr. ANDREWS. If the gentleman the past 10 years. pects that 10 percent, or about 100 of
would stop int.errputing me and let me Now, when folks hear that there those 1,000 job applications, are dis-
answer the question, the American have been 2 million tests given, they honest people, about 10 percent. So he
Medical Association has stated over say, "Well, sure, that's the FBI, the gives the lie detector tests.
and over again that a lie-detector test CIA, the National Security Council, Now, if it works at the maximum, at
is just about as accurate as a flip of and local police giving those tests." 85 percent, that means that 85 out of
the coin. Not true. Ninety-eight percent of the 2 the 100 people that they suspect, 85 of
That is not true with drug testing. million tests given last year were not them will be correctly identified by
Mr. DELAY. There are studies that given by public agencies. They were the lie detector, but remember, 15 per-
refute that. given by private employers against cent of them, or 135 prospective em-
I am just asking the gentleman if their employees and 75 percent of ployees, will be misidentified.
drug tests are fallible. Is the gentle- those 2 million tests were given Thus, here is what happens. The lie
man suggesting that we require 100 against people who were only applying detector will accuse out of the 1,000, it
percent accuracy on all tools to stop for a job. They had not been accused will accuse 220 suspects, of whom 61
criminals? of any wrongdoing. It is the 18-year- percent will be wrongly identified.
Is the gentleman for or against drug old who wants to be a stenographer, Out our way in Montana, we like
testing? and they say, "Come here, sit down. western music, and I will close with
The CHAIRMAN. The time of the We are going to strap you in and make this for now, my friends. There is a
gentleman from Texas [Mr. DELAY] you prove that your are not guilty of song by a Western singer called Tom
has expired. something." T. Hall and there is a line in that song
Mr. GUNDERSON. Mr. Chiarman, I Only about one-fourth of the tests that says: "If you hang them all, you
yield myself 30 seconds. are given to investigate workers who will get the guilty."
Mr. Chairman, I point out to the might be accused, usually wrongly ac- Mr. GUNDERSON. Mr. Chairman. I
Members that the gentleman from cused, of some crime or other. yield 4 minutes to the gentleman from
Texas who just told the story did not The broad support for lie detectors Texas [Mr. BARTLETT].
point out that the gentleman was the stems from the simple fact that there (Mr. BARTLETT asked and was
prosecutor, the one obviously who was is no scientific evidence that shows given permission to revise and extend
involved and supportive of the admin- that these gadgets, these so-called lie his remarks.)
istration and the results of those poly- detectors work. Employers in this Mr. BARTLETT. Mr. Chairman, I
graph tests; but now after the individ- country have been deceived by the rise in opposition to H.R. 1212 and to
ual referred to was convicted, now the myth that a metal box plugged into a urge a "yes" vote in support of many
gentleman chooses to believe the wall socket can detect truth from lies. of the amendments that will be of-
person who was convicted. If you believe that somehow all liars fered to help to do what some of the
I just suggest that we put this story have universal physiological responses, sponsors of the bill say that they want
in its proper perspective. I am not sure that is, they all perspire about the to do.
I believe someone who is convicted of same rate, their respiration increases I would like for the House in these
this kind of a crime, is this type of at about the same rate, their heart remaining minutes to back up just a
person the one we ought to be relying beat increases at about the same rate, little bit and cut through the smoke
on in determining whether a poly- across all liars in the United States, and the haze and talk about what H.R.
graph is or is not valid. then you think the gadget works. I 1212 actually does.
Mr. MARTINEZ. Mr. Chiarman, I suggest that that is like believing in Now, some of the proponents and
yield 5 minutes to the gentleman from Pinnochio. You believe that when you the speakers have said that they be-
Montana [Mr. WILLIAMS]. lie something physiological happens to lieve that the polygraph either never
Mr. WILLIAMS. Mr. Chairman, I you. In the case of Pinnochio, his nose works or almost never works and thus
thank the gentleman for yielding me got longer. In the case of the accused, they would prohibit it. They would say
this time. you start to perspire more. it should never be used. Yet the bill
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CONGRESSIONAL RECORD - HOUSE Not'ember 4, lJ87
itself provides, authorizes the use of
the polygraph by Government agen.
cies.
Others would say that the poly-
graph is an imperfect tool and some-
times does not work, and yet this bill
before us, and make no mistake about
it, prohibits the use of the polygraph
by any employer other than a Govern-
ment agency, prohibits them in post-
employment, prohibits it in the case
of theft, prohibits it in the case of
preemployment, prohibits no matter
what the occupational needs are of
those employees.
Let us back up to a few facts. First,
this bill in its form today does not
clarify the use of the polygraph. It
does not limit the use of the poly-
graph. It does not correct abuses. It
simply prohibits the use of a poly-
graph examination which is currently
being used as one tool, as one determi-
nant in preemployment and postem-
ployment theft.
So we do not have before us a bill
that somehow corrects abuses. We
have a bill before us that eliminates
the use of the polygraph in all but
Government agencies.
Second, it does have law enforce-
ment implications, and I think we
ought to understand that. If you do
not believe that or do not understand
it, well. call your local police depart-
ment or call your defense contractor
who has to try to enforce national se-
curity.
The fact is that when a theft or a
breech or a violation of health or
safety has occurred in a nursing home
or a bank or a defense contractor, that
employer uses a variety of determi-
nants to determine who they can
eliminate as suspects and then turns
the criminal case over to the police.
Take away that tool, and you take
away the law enforcement agency's
ability to enforce the law.
Third, let us examine the civil rights
argument that is so often trotted out
and is overused it is somewhat trite.
It has been said that the polygraph
is not permitted as evidence in a crimi-
nal case in a court of law, and that is
true: but the fact is that when employ-
ers hire employees we have long un-
derstood that those employers use all
kinds of tests that are not allowed in a
court of law. They use literacy tests
sometimes if It is part of the job quali-
fications. They use hearsay evidence
by cheecking references. They inter-
view employees without the presence
of an attorney.
References are used. Hearsay evi-
dence is used. Interviews are used
without the rules of evidence.
Now, the fact Is that the polygraph
has changed and that in today's world
the use of the polygraph is not used
by industry as a sole determinant be-
cause industry is trying to hire and to
find qualified employees. Industry
uses and business uses today. and we
have evidence and testimony in the
hearing record, industry uses the po-
lygraph as one determinant. as one In-
dicator, just like they use references.
Just like they use personal interviews,
just like they sometimes use written
examinations. They use it as one de-
terminant.
This bill does not say that they
could use it as one determinant. This
bill would say that under no circum-
stances can a polygraph be used as any
indication. That is not fair to the
other employees and It is not fair to
the customers and it Is not fair to the
individual homeowners who those em-
ployees will be entering their homes at
all times of the day or night, and it Is
not fair to the consumer.
Mr. Chairman, I urge a "yes" vote
for the Darden-Young substitute
which does what many of the propo-
nents of H.R. 1212 say they want to
do, and that is to limit abuses, correct
abuses, provide a framework, adopt
minimum standards. If that is what we
want to do, let us adopt minimum
standards.
Mr. MARTINEZ. Mr. Chairman. I
yield myself the balance of the 30 sec-
onds I have left.
Mr. CONYERS. Mr. Chairman, will
the gentleman yield?
Mr. MARTINEZ. I yield to the gen-
tleman from Michigan (Mr. CoNTrats).
(Mr. CONYERS asked and was given
'ermission to revise and extend his re-
iarks.)
Mr. CONYERS. Mr. Chairman. this bill will
provide important and needed protection for
hundreds of thousands of workers who are
victimized each year by unreliable and intru-
sive polygraph testing.
Compulsory polygraphs as a preemploy-
ment testing device represent a threat to all
job seekers. Additionally, there is mounting
evidence that they represent an even more
serious danger to black workers. What the
new evidence indicates is that the polygraph
is not only a threat to the privacy of all, but is
a special threat to equal opportunity for black
Americans.
None of this evidence may represent con-
clusive proof that polygraphs discriminate
along racial lines. But it certainly constitutes
important danger signs. The data reflects
something that is already widely accepted:
that the most important determinant in the ac-
curacy of polygraph testing is the tester. What
this new data suggests is that testers just
bring their own subjective biases to the proc-
ess.
The fight for equal employment opportunity
in this country has not been an easy one, but
we have made much progress in recent years.
We cannot afford to see those gains eroded
through back door means.
The unreliability and intrusiveness of poly-
graphs is reason enough to pass H.R. 1212.
The evidence that they are also racially
biased makes it absolutely imperative.
I am attaching to these remarks the follow-
ing documents which are part of that mount-
ing body of evidence of the racially discrimina-
tcry nature of the polygraph:
The opinion of the U.S. District Court for
the Northern District of Illinois in the case of
Moon v. Cook County Pokce and Corrections
Mont Boarc( No. 78 C 1572 (Jan. 18, 1980).
The court there found that the plaintiffs had
presented sufficient evidence to establish that
the defendant's preemployment polygraph test
failed blacks at a significantly higher rate than
whites. The case settled after this court ruling
and the settlement included an agreement to
eliminate the polygraph requirement.
The complaint in Johnson Y. Alexander's
Inc., No. 85 Civ. 9691. filed Dec. 12, 1985, in
the U.S. District Court for the Southern Dis-
trict of New York, charging that polygraph
tests have a racially discriminatory effect.
Paragraphs 20 and 21 of the complaint de-
scribe the findings made by the New York
States Division of Human Rights before the
case was filed in Federal court The division
found the charge of discrimination supported
by probable cause. The case was settled for
$25,000.
A statistical report by John Van Ryzin, chair-
man of Columbia University's Department of
Statistics, filed in support of the complaint in
Johnson versus Alexander's. The statistical
analysis is based on data on polygraph tests
outcomes admitted by the defendant Over a
15-month period, during which more than
1,000 applicants were tested, 73.4 percent of
the whites passed the test, while only 63.6
percent of the blacks passed.
EEOC Decision No. 79-44, February 23,
1979. The Equal Employment Opportunity
Commission determined that a charge of dis-
crimination was supported by reasonable
cuase in a case where the applicant was re-
jected on "psychological grounds" for failing a
polygraph test; the evidence showed that
blacks were psychologically disqualified at a
higher rate than whites.
An excerpt from a report by the Office of
Technology Assessment on "Scientific Validity
of Polygraph Testing: A Research Review and
Evaluation" (November 1983). The OTA's
report states that research conducted cross-
culturally indicates that there are ethnic differ-
ences in response to stress that may affect
the detection of deception.
An excerpt from an article by Paul R. Sack-
ett and Phillip J. Decker, "Detection of Decep-
tion in the Employment Context A Review
and Critical Analysis," Personnel Psychology,
Vol. 32 (1979). The authors refer to research
evidence of ethnic differences in physiological
reactivity to stress that could affect the accu-
racy of test results for different groups. They
also note "the potential for factors such as
first impressions, prejudices and stereotypes
to consciously or unconsciously affect the
overall judgment made by the examiner."
An article by Daniel Jussim, "Lies, Dam
Ues-and Polygraphs," from The National
magazine, December 21, 1985, discussing the
discriminatory aspects of polygraphs.
[In the U.S. District Court for the Northern
District of Illinois, Eastern Division, No.
78 C 1572)
HAROLD L MOON. PLAINTIFF, V. COOK COUNTY
POLICE AND CORRECTIONS MERIT BOARD,
JAMES L O'KEEPE, SIDNEY J. SEINER,
SAMUEL W. NOLAN. E. JAMES GARBUTT.
ROBERT C. CUMMINGS, INC. POLYGRAPH LAB
ORATORY, DEPENDANTS.
ORDER
This cause comes before the court on
plaintiff's objections to the Magistrate's
order of September 17, 1979 recommending
that defendant's motion for summary judg-
ment be granted and the case dismissed. For
the reasons herein stated. this court, after
reviewing the additional evidence presented
after the Magistrate's report, denies defend-
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CONGRESSIONAL RECORD - HOUSE H 9539
ant's motions to dismiss and for summary
judgment.
Also before the court is plaintiff's motion
to certify the class. For the reasons herein
stated. this motion is granted.
Plaintiff, Harold Moon, a black, brings
this action challenging the creation, admin-
istration, evaluation, and use of polygraph
tests administered to applicants for the po-
sition of Cook County Correctional officer.
Plaintiff, after taking the polygraph test,
was informed that he had not received a sat-
isfactory grade on it and, consequently, was
rejected as an applicant. Plaintiff brings
this suit alleging that the polygraph tests
discriminate against blacks in violation of
Title VII of the Civil Rights Act of 1964, 42
U.S.C. 12000e, et seq., 42 U.S.C. I 11981 and
1983, and the Fourteenth Amendment.
The defendant, in moving for summary
judgment and dismissal, contends that there
can be no discrimination where, as here,
twice as many blacks as whites were hired as
Correctional Officers over the five year
period covering 1974-1978.
However, summary judgment under Rule
56, Federal Rules of Civil Procedure, is an
extreme remedy which should be sparingly
employed. City National Bank of Fort
Smith, Arkansas v. Vanderboom, 422 F.2d
221. 223 (8th Cir.), cert. denied, 300 U.S. 905
(1970); Homan Mfg. Co. v. Long, 242, F.2d
645 (7th Cir. 1957). It should be entered
only when "the pleadings, depositions, an-
swers to interrogatories, and admissions on
file, together with affidavits, if any, show
that there is no genuine issues as to any ma-
terial fact and that the moving party is enti-
tled to judgment as a matter of law." Rule
56, Fed.R.Civ.P.
The basic mission of the summary judg-
ment procedure is to allow a court to pierce
the pleadings and assess proof in order to
see whether there is a genuine need for a
trial. Gauck v. Meteski, 346 F.2d 433 (5th
Cir. 1965). Issue finding and not issue reso-
lution is the court's task under such proce-
dure. Hackensack Water Co. v. Village of
Nvack, 289 F. Supp. 671 (S.D. N.Y 1968). In
performing its task, the court must draw in-
ferences from underlying facts contained in
such materials as affidavits, exhibits, and
depositions, in a light most favorable to the
non-movant. Technograph Printed Circuits,
Limited v. Methode Electronics, Inc., 356
F.2d 442, 446-7 (7th Cir.), cert. denied, 384
U.S. 950 (1966). The non-movant's allega-
tions must be taken as true, to the extent
that they are consistent with its evidence
before the court. See Goodman v. Mead
Johnson & Co., 534 F.2d 566 (3d Cir. 1976),
cert. denied, 429 U.S. 1038 (1977). It is the
court's duty to resolve all doubts as to the
existence of a genuine issue as to material
fact against the moving party. Technograph
Printed Circuits, Limited v. Methode Elec-
tronics, Inc., supra.
In the instant case, this court finds a clear
question of material fact as to whether the
use, administration, evaluation, and creation
of the polygraph tests employed by the Cor-
rectional Department operates discrimina-
torily against blacks.
First, we note that defendants conten-
tions, that there can be no discrimination
where twice as many blacks as whites have
been hired during the 1974-1978 period, lack
serious merit. Numerous cases have held
that a racially balanced work force cannot
immunize an employer from liability for
specific acts of discrimination, here the al-
leged employment of the polygraph test.
See e.g., Turnco Construction Corp. v. Wal-
ters, 46 L.W. 4967, 4970.
And, in the instant case, plaintiffs have es-
tablished by statistical evidence a prima
facie case of discrimination based on the in-
formation contained in defendant's files.
These statistics demonstrate that a higher
percentage of blacks failed the polygraph
test than whites taking the same test. In
fact, plaintiff's expert correctly determined
from the information available that there
was one chance in 1,000 that in 1976-1978
the proportion of blacks who failed the
polygraph would be as great as 72.5%
(where 67.5% of those taking the test was
black) if blacks had had an equal chance of
passing the test.
In 1978, 65% of those who took the poly-
graph were black and 74% of those who
failed the polygraph were black. But, 31.2%
of those taking the test were white, yet only
21.5% of those who failed were white. Plain-
tiff's expert correctly determined that the
chance that this proportion of blacks would
fail the test absent discrimination is less
than two in 10,000.
Based on the statistics, plaintiff has prof-
fered sufficient evidence to constitute a
prima facie case of discrimination.
While defendant correctly notes that the
percentage used for the number of blacks
taking the test was an assumption based on
the percentage of blacks who applied, plain-
tiff used all the information available to
him and defendants have offered no other
figure that they allege to be more precise.
While this assumption must be tested, its
mere existence without some contrary evi-
dence from defendants. is not enough to un-
dermine plaintiff's efforts to establish a
prima facie case. In fact, in Hester v. South-
ern Railway Co., 497 F.2d 1374, 1379-1381
(5th Cir. 1974), a case cited by defendants in
challenging the use of assumptions by plain-
tiff, the defendant there, unlike the defend-
ant here, offered testimony that plaintiffs
percentages were miscalculated because ap-
plicants "deselected" themselves. Defend-
ants have not offered any such testimony
nor proof explaining the basis for their
challenges to plaintiff's assumptions.
The Supreme Court case of New York City
Transit Authority v. Blazer, 99 S.Ct. 1355,
1364-1366 (1979) is likewise not applicable
where, as here, defendant's have not offered
any explanation as to the likelihood that
plaintiff's assumptions are inaccurate in
toto. Moreover, in Blazer the Supreme
Court acknowledged that the available sta-
tistics could possibly have proven a prima
facie case.
This court also find it noteworthy that
plaintiff's statistics are compiled from
records which were in defendants possession
and defendant's challenges are logged
against statistics for which plaintiff could
find no records because, as defendant's
admit, "the Merit Board does not have in its
possession all of the white forms collected
in 1977 and 1978." In fact, defendants ef-
forts to undermine the validity of plaintiff's
statistics is based on less reliable assump-
tions than plaintiffs.
For the foregoing reasons, this court finds
that summary judgment and/or dismissal is
inappropriate at this juncture ...
[U.S. District Court, Southern District of
New York]
BARBARA JOHNSON, PLAINTIFF, AGAINST,
ALEXANDER'S, INC., DEFENDANT
(Complaint)
PRELIMINARY STATEMENT
1. This is an action brought pursuant to
Title VII of the Civil Rights Act of 1964. as
amended, 41 U.S.C. Section 2000e, seeking
declaratory and injunctive relief to redress
the injury done to the plaintiff, Barbara
Johnson, as a result of the defendant's
policy and practice of denying employment
to job applicants and new employees solely
on the basis of a polygraph test. The de-
fendant's polygraph tests, which are used as
an Initial condition of employment for posi-
tions at the defendant's stores in New York
State, have a substantial discriminatory
impact on job applicants and employees
who are black. These tests are not justified
by business necessity: they are not accurate
and cannot serve as a valid predictor of
future job performance. Accordingly, the
defendant's policy and practice of condition-
ing employment on polygraph test results
violates the Civil Rights Act.
JURISDICTION
2. The jurisdiction of this Court is invoked
pursuant to 42 U.S.C. If 2000e-5 (f)(1) and
(f)(3), the jurisdictional provisions of Title
VII. Because this action arises under the
laws of the United States, jurisdiction also
lies under 28 U.S.C. 11331. The plaintiff
also seeks declaratory relief pursuant to 28
U.S.C. 12201 and 2201 and Rule 57 of the
Federal Rules of Civil Procedure.
PARTIES
3. Plaintiff Barbara Johnson is a 42 year
old black woman. She is a citizen of the
United States and the State of Neu, York,
and resides in Manhattan.
4. Defendant Alexander's, Inc. (herein-
after referred to as "Alexander's-) is a cor-
poration operating a chain of department
stores. Its principal corporate office is locat-
ed at 500 Seventh Avenue, New York, New
York.
STATEMENT OF THE FACTS AND APPLICABLE LAW
A. Alexander's Denial of Employment to
Ms. Johnson.
5. Ms. Johnson applied for employment as
a "fitter-checker" (dressing room attendant)
at Alexander's in October of 1981. On or
about October 15, 1981, Ms. Johnson took
and passed the requisite written test and
was given an interview. During the inter-
view she was told that if she received the
job she would be required to submit to a
polygraph test.
6. On October 19, 1981, Ms. Johnson
began working for Alexander's on a part
time basis. She worked every day that week
and the beginning of the next week. During
this period, she performed the duties of her
job in a satisfactory manner.
7. On October 27, 1981. Ms. Johnson was
required to take a polygraph test at Alexan-
der's Lexington Avenue store.
8. Ms. Johnson asked the polygraph exam-
iner, an Alexander's employee, what would
happen if she refused to take the test. She
was told that she would be fired. Ms. John-
son submitted to the test.
9. Ms. Johnson truthfully answered all of
the questions that were put to her during
the polygraph test. After the test was com-
pleted, she was told that she would be in-
formed of the results.
10. On October 30, 1981. Ms. Johnson was
instructed to report to the store personnel
manager. The personnel manager told Ms.
Johnson that she had "failed" the poly-
graph test and that it was Alexander's
policy to terminate persons who fail the
test. Ms. Johnson was discharged from em-
ployment that day.
B. Alexander's Policy and Practice of Con-
ditioning Employment on Polygraph Test
Results.
11. Ms. Johnson was denied employment
pursuant to a policy and practice of Alexan-
der's, which continues in effect to the
present, requiring all employees in certain
positions to pass a polygraph test as an ini-
tial condition of their employment.
12. The polygraph tests that are required
by Alexander's as an initial condition of em-
ployment (hereinafter referred to as "initial
polygraph tests") are administered to lob
applicants and new employees before or
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CONGRESSIONAL RECORD - HOUSE November 4, 1987
shortly after they commence their employ-
ment at Alexander's. The tests are adminis-
tered by polygraph examiners employed by
Alexander's.
13. The initial polygraph tests are used by
Alexander's to assess whether an applicant
or new employee Is being truthful or decep-
tive when answering questions relating to
his or her background, past employment
and past behavior.
14. The job applicants and new employees
who are required to submit to an initial
polygraph test are deemed to have "failed"
the test, and are denied employment, if (a)
the Job applicant or employee makes admis-
sions in the course of the polygraph test
that disqualify him or her from employ-
ment; or (b) the polygraph examiner deter-
mines, by examining the charts recorded by
the polygraph machine, that the job appli-
cant or employee gave deceptive answers
during the test.
15. The policy and practice described
above in paragraphs 11 through 14 applies
uniformly to all Alexander's stores in New
York State.
18. Ms. Johnson was denied employment
by Alexander's, pursuant to the policy and
practice described above in paragraphs 11
through 14, solely because an Alexander's
polygraph examiner determined that Ms.
Johnson's polygraph charts indicated that
she gave deceptive answers during an Initial
polygraph test.
C. The Discriminatory Impact of Alexan-
der's Employment Policy.
17. Alexander's policy and practice of de-
nying employment to job applicants and
new employees solely on the basis of the
outcome of an Initial polygraph test results
in the disqualification of a disproportionate-
ly high percentage of black employees and
job applicants.
18. Alexander's use of polygraph tests as
an initial condition of employment is not
justified by business necessity. The initial
polygraph tests used by Alexander's are not
accurate, cannot detect deception and are
not a valid predictor of future job perform-
.
ance
19. By making employment decisions, in-
cluding the decision to discharge Ms. John-
son. on the basis of an employment test that
has a disparate Impact on blacks and is not
justified by business necessity. Alexander's
violated and continues to violate Title VII of
the Civil Rights Act of 1964, as amended 42
U.S.C. 12000e-2(a).
D. Administrative Charges Filed by Ms.
Johnson.
20. On April 23, 1982, Ms. Johnson filed a
complaint with the New York State Division
of Human Rights charging Alexander's with
unlawful discrimination in employment on
the basis of race. Ms. Johnson's discrimina-
tion charge was filed with the New York
District Office of the Equal Employment
Opportunity Commission (hereinafter re-
ferred to as "the Commission") on or about
June 22, 1982. The Commission deferred in-
vestigation of the charge to the State Divi-
sion of Human Rights.
21. The State Division of Human Rights
(hereinafter referred to as "the Division")
conducted an investigation of the racial
Impact of Alexander's polygraph testing. On
September 19, 1985, the Division issued a de-
termination that there is probable cause to
believe that Alexander's polygraph testing
discriminates on the basis of race. The Divi-
sion's investigation found that "(tlhe fig-
ures (on the racial impact of polygraph tee
ing at Alexander's] establish that Black em-
ployees fail the polygraph test at a statisti-
cally significantly higher rate than others.
" Additionally the respondents have not
shown that the use of the polygraph is a
compelling business necessity.... ' ("Basis
for Probable Cause," dated September 13,
1985).
22. On November 15. 1985, the Commis.
sion issued a Notice of Right to Sue author-
izing Ms. Johnson to file a civil action in
federal district court. The Notice of Right
to Sue was issued at Ms. Johnson's request,
pursuant to 29 C.F.R. 11601.28(a), because
more than 180 days had elapsed since the
filing of Ms. Johnson's charge with the
Commission.
PRAYER FOR RELIEF
Wherefore, plaintiff requests that the
Court:
A. Declare. pursuant to 28 U.S.C. 12201.
that Alexander's policy and practice of de-
nying employment to job applicants and
new employees solely on the basis of the
outcome of an initial polygraph test violates
Title VII of the Civil Rights Act of 1964. as
amended, 42 U.S.C. 12000e-2(a);
B. Enjoin Alexander's from continuing its
use of initial polygraph tests as a condition
of employment;
C. Order Alexander's to offer the plaintiff
reinstatement to her position, and award
her back pay and all other benefits of em-
ployment from the date of her discharge;
D. Award the plaintiff reasonable attor-
neys' fees and the costs and disbursements
incurred in the prosecution of this action.
E. Grant such other relief as may be
deemed appropriate.
Dated: New York, NY, December 12,
1985.
Respectfully submitted,
MARGARET K. BROOKS,
Jos BAUER,
(Legal Action Center
of the City of New
York. Inc.)
Attorneys for Plain-
tiff, Barbara John-
son
STATISTICAL REPORT III THE CASE OF JOHxsoa'
VERSUS ALEXANDER'S
(By John Van Ryzin, Ph.D.. Chairman. De-
partment of Statistics and Professor, Divi-
sion of Btostatistics, Columbia University)
SUMMARY
This report covers a statistical analysis of
the results of "initial polygraph tests" and
"security interviews" administered by Alex-
ander's from August 1. 1980 through Octo-
ber 27. 1981. The statistical analysis seeks to
address the question: Does the administra-
tion of the initial polygraph test given by
Alexander's show substantially different
pass proportions for blacks and whites,
which are not attributable to chance by
usual statistical practices? In answering this
question, the analysis is done for the com-
parison of the black pass proportion with
the white pass proportion, and for the com-
parison of the black pass proportion with
the pass proportion for all non-blacks.
The defining characteristics of the "initial
polygraph test" and "security interview" are
described in the Pretrial Order (Stipulated
Facts. 114-21). The initial polygraph test is
part of the security interview procedure. In-
dividuals may fail the security interview
either (1) by failing the Initial polygraph
test (i.e., such persons are found, by means
of the polygraph test, to have been decep-
tive In answering test questions), or (2) by
making admissions that disqualify them
from employment To analyze the racial
Impact of the initial polygraph test, my
analysis excludes Instances where Alexan-
der's records indicate that failure was based
upon disqualifying admissions.
However. if Alexander's records are found
to be insufficiently reliable In distinguishing
between persons who failed the security
interview solely because of a finding of de-
ception on the polygraph test, and persons
who failed because of admissions, then the
data concerning the results of the overall
"security interview" may be viewed as the
best available measure of the initial poly-
graph test's Impact on different groups. Ac-
cordingly, I have also done a statistical anal-
ysis for the comparison of black and white
pass proportions, and for the comparison of
black and non-black pass proportions for
the data on the results of the security inter-
view (i.e.. including admissions).
Based on the detailed analysis carried out
below, I conclude that, for the Initial poly-
graph test, the black pass proportion of 63.8
percent versus the higher white pass pro-
portion of 73.4 percent is not due to chance
alone. In fact, the probability of the white
pass proportion being this much higher
than the black pass proportion is approxi-
mately .001 (one in a thousand). This is
based on a difference in the pass propor-
tions of 3.11 standard deviation units. The
standard deviation analysis measures, in
standard statistical units of variation, the
significance of the disparity between the ob-
served difference in the pass proportions
and the result one would expect to find in a
race-neutral test: no difference In the pass
proportions for blacks and whites. A stand-
ard deviation of more than 2 units is com-
monly considered by statisticians as not due
to chance alone. A similar analysis, of the
black pass proportion of 63.6 percent versus
the non-black pass proportions of 70.9 per-
cent has a standard deviation of 2.82 units.
The probability that such a larger pass pro-
portion for non-blacks is due to chance
alone is approximately .002 (two in one
thousand).
Furthermore, if one compares the propor-
tions for the entire "security interview" pro-
cedure (i.e., including admissions), the re-
sults are as follows: (1) For the black pass
proportion of 58.2 percent versus the white
pass proportion of 70.4 percent, the stand-
ard deviation is 3.86 units, representing a
probability of approximately .0001 (one in
the ten thousand) that the larger white pass
proportion was due to chance alone. (2) For
the black pass proportion of 58.2 percent
versus the non-black pass proportion of 66.1
percent, the standard deviation is 3.07 units,
representing a probability of approximately
.001 (one in a thousand) that the larger non-
black pass proportion was due to chance
alone.
The above statements are Justified in a
more detailed explanation which is present-
ed in the remainder of the report. Based on
the above results. I conclude there is clear
statistical evidence that black applicants
and new employees given the initial poly-
graph tests administered by Alexander's
during the period cited had a significantly
lower pass proportion on the test when com-
pared with both whites or non-blacks; and,
furthermore these differences are not rea-
sonably attributable to chance alone. Thus.
I conclude that the initial polygraph test
administered by Alexander's has an unfa-
vorable Impact on black applicants or new
employees. Statistical analysis of the entire
"security interview" procedure likewise
shows that the Alexander's security Inter-
view has an unfavorable impact on blacks.
DETAILED ANALYSIS
The statistical analysis for the statements
presented in the summary above will now be
given in detail. The data upon which these
statements are based in given In Table 1
below. The data represented in Table 1
comes from the chart agreed upon by the
parties in the Joint Pretrial Order (Stipulat-
ed Facts, 123). This table does not include
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CONGRESSIONAL RECORD - HOUSE H 9541
applicants of unknown ethnic origin and
tests for which the results are unknown.
The total number of such persons is a mere
19 out of 1457 persons taking the test. Since
this is only 1.3 percent of all persons taking
the test, the omission of such small num-
bers would not result in statistical conclu-
slons essentially different from those given
above. Also omitted from Table I are five
"inconclsuve" test outcomes. These are
omitted because no employment decisions
were made on the basis of inconclusive tests.
In two instances, employees failed a first
test but requested and were given a second
test. In these two cases, only the outcome of
the second test is recorded in the Table.
since only the second test resulted in an em-
ployment decision.
TABLE 1.-DATA ON POLYGRAPH TEST RESULTS OF 1433
KNOWN CASES BY ETHNIC GROUP
plemw
(adrmssms
mduded )
Pau
Fail
AOnUS-
5100
W. ..... .............-.......
~--- ................_..._
210
V
14
Buck _...._..........
........................ ........ _
448
256
66
175
88
31
Avar..
.......................... _........... _._.._
23
4
0
of black passes
Nabve Amer".. .................._..._............_......._....._. 0
1
.
1 ift
Table 2 presents the pass proportions as
percentages by ethnic group with and with-
out admissions included. Note that the last
row of table 2 presents the combined rates
for all ethnic groups which are non-black.
TABLE 2.-PASS PERCENTAGES BY ETHNIC GROUP
ITEM
Erik lydup pdviraot
(irkmssae
a dodad
Mule -....__-_.. 73.4 70.4
Blasi ...__........ _._ ............... _......... _.__...._..__ 63.6 58.2
sYtparsc .................___............._......__.._..._...._.. 6E 5 59.5
85.2 05.2
0.1
hall* Ammon ....... 0.0
Non-brarl_ --------...._................ .._........_...._.._ 709 66.1
To analyze the data from Tables 1 and 2. a
standard statistical technique of comparing
two binomial proportions is employed. See,
for example, Mosteller, Rourke and Thomas
(1970, pp. 319-323). Specifically, four analy-
ses were done: (1) comparing the black and
white pass proportions for the initial poly-
graph test (without admissions included),
(2) comparing the black and non-black pass
proportions for the initial polygraph test.
(3) comparing the black and white pass pro-
portions for the security interview (includ-
ing admissions), and (4) comparing the
black and non-black pass proportions for
the security interview.
A detailed explanation of the statistical
procedure used will be given in the case of
the comparison of the black and white pass
proportions for the initial polygraph test
(see (1) above). These results are given in
Table 3 below. The comparisons in (2) to (4)
above follow a similar procedure and the re-
sults are stated in Tables 4 to 6 below.
The statistical procedure used makes the
following assumptions. Suppose we have
two populations of applicants taking the
polygraph test. In case (1), these popula-
tions are the black applicant pool and the
white applicant pool. We assume that the
applicants in table 1 are a random sample of
the applicant pool for each racial group.
Under these assumptions, it is well-known
that the number of whites who pass have
what is called binomial population with un-
known pass proportion p,. The number of
white passes in this sample can be designat-
ed s,. while no designates the sample sine for
whites. in case (1) above, z,-240 and
a,=327-240+87 (am row one of Table D.
Similarly, the number of blacks who pass
have a binomial distribution with unknown
pass proportion A. In the sample under
study, the observed black number of passes
is x:=448, and the black sample size
a.=704=448+256 (see row two of Table 1).
We now ask the question: is p,'aS (the un-
known racial group pass proportions are the
same) as opposed to whether p,'02 (the un-
known white pass proportion is higher than
the unknown black pass proportion)? To
answer this question, we begin by compar-
ing the two observed proportions.
- . 1p absnid golioli l
= at WW Pam
The estimated standard error, here .0315,
Is a measure of the expected spread of the
observed difference Statistical theory
says that if we divide the difference r-;, by
the estimated standard error s, we get a sta-
tistic which measures the number of nor-
malized standard deviations contained in
the observed difference ,,-,9. In this case.
the z-value is 3.11.
-.s 09i
.0315
TABLE 3.-STATISTICAL RESULTS FOR WHITE VERSUS
BLACK PASS PROPORTIONS ON THE INITIAL POLYGRAPH
TEST
Wlste._..._..._...__.
240
97
327
0 734173 4%, _,,
448
256
701
0.636(63.616)=r
855........ _..._._
618
313
1.031
0 661(66 7%; _,
obwwe Ollvo ce of peorhon
-.,-
734-.636.091
Estimatx sraodaro erns al dg*eam-s -.031
Normtzer esmure devw!ior unit:, = , = OR,
D315 = 3 11
Prbadd (o65erw0 Weees > 056 -.001 (1 m 00;
TABLE 4.-STATISTICAL RESULTS FOR NON-BLACK VERSUS
BLACK PASS PROPORTIONS ON THE INITIAL POLYGRAPH
TEST
loo-dirk .__......... _..... 431 180 618 1709(709%_,,
kick 448 256 714 0.636i616?k,=.,
Tou........... ... 886 436 1.372 067U(6701ci =,
1Lserveo 4row d prsvtor,=. -r= 705-.636=.013
Esumarer racard Errs Of 85 es=,=.0155
NorrraL ac standard dewalon Lot= -073, .073, 0259= 2.82
NNW) 5iet i otnand tiltaence .073) = .002 (2 c 1000,
TABLE 5 -STATISTICAL RESULTS FOR WHITE VERSUS
BLACK PASS PROPORTIONS ON THE SECURITY INTERVIEW
M1ure _.._r .__-. 240 101 341 &704(704%;=p,
Otxt.......---------..._......_ u8 322 778 .5822:58.241' =y,
8 bsona dfwecs d prdoorie = - j. =.704 - .562 = .122
Emmate ssiqa o er o S fte encer=,- 038?
NassS s88Sad deutr .mh=a.-.122/.0316=3.86
Prabadlq t4euved Ifber,oe >.122-.0001 (1 to 10.000,
TABLE 6.-STATISTICAL RESULTS FOR NON-BLACK VERSUS
BLACK PASS PROPORTIONS ON THE SECURITY INTERVIEW
A z-value of more than 2 is commonly con-
sidered to be statistically significant. In
other words, when the -value exceeds 2, the
observed difference in pass proportions
cannot reasonably be attributed to chance
alone.
By reference to statistical tables, the z-
value can be used to determine the probabil-
ity that the observed difference in pass pro-
portions would occur by chance- In this
case, the probability of the observed z-value
being as large or larger than 3.11 is
Prob(observed z value > 3.11)
=Prob(observed difference ;,-;, >.098)
=.001
That is, the probability of seeing an ob-
served difference ,,-,, as large or larger
than .098, if indeed the pass proportions are
equal for the white and black applicant
pools is approximately one in a thou-
sand (1 in 1000)` Hence, we can conclude
that this difference is too large to be reason-
ably attributable to chance alone. Thus, ,,
the pass proportion for whites who take Al-
exander's initial polygraph test, is higher
than ,, the pass proportion for the popula-
tion of black test-takers. We can conclude
that blacks compared to whites suffer a dis-
advantage from the initial polygraph test
administered by Alexander's. Furthermore,
such a disadvantage cannot be attributed
based on the observed data to chance alone.
We summarize the result for the compari-
son of the white vs black pass proportions
for the initial polygraph test in Table 3
below. (See (1) above).
Ibnblad..- as 225 663 0661(66.1.) =r,
Mack .....---- --.._..._..... 148 322 770 0.5E?(58.216!=),
Tet&_ 186 54) L433 0.618(61
OD,ervee **m of prMvtms-p-j;=.6E1 -A2= 079
Estimate s0ai d errs ce ditMcacr=,=.0251
Namsise Sta,4sd desatm aMS=,=.079.0251=3.07
Prata5St4 jowwd *b4aa >479i=.001 0 m 1000;.
The c inclusion I reach from Tables 3
through !' is that if one compares the black
pass pm, nrtion to either the white or non-
black pr portion for the initial polygraph
test or E. curity interview, there is a large,
normaliz, d standard deviation indicating
most clearly that Alexander's administra-
tion of the initial polygraph test and securi-
ty interview has an unfavorable impact on
blacks.
REFERENCE
Mosteller, F., Rourke, R., and Thomas,
(3.B.. Jr. (1970). "Probability with Statistical
Applications." 2nd Ed., Addison-Wesley
Publishing Co.. Reading, MA.
PO:. I GRAPH TEST HAS BIASED IMPACT
Decisior of Equal Employment Opportu-
nity Commission Decision No. 79-44. Febru-
ary 23, 1979.
TITLE VIZ-CIVIL RIGHTS ACT OF 1964
Pre-employment Inquiries-Psychological
Exam-Polygraph.-Rejection of an appli-
cant for police employment because he
failed a psychiatric test was racially dis-
criminatory where the procedures used,
which included a polygraph test, disquali-
fied black applicants at a disproportionately
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H 9-342
CONGRESSIONAL RECORD - HOUSE ' ;~r_ e.rrl5er, 198:
high rate and were not shown to be related
to successful job performance.
Back reference.-I 420.30.
[Full Text of EEOC Decision]
Summary of Charge
Charging Party alleges that Respondents
engage in unlawful employment practices in
violation of Title VII of the Civil Rights Act
of 1964, as amended, on the basis of race by
using hiring practices and selection proce-
dures which discriminate against Blacks.
Jurisdiction
Respondent police department is an em-
ployer within the meaning of Section 701 of
Title VII and, at the time the charge was
field. employed [number] persons. Respond-
ent Civil Service Commission, is an employ-
er within the meaning of Section 701 of
Title VII.
The charge was deferred to the (local)
Civil Rights Commission on March 26, 1973.
No investigation was made of Charging
Party's charges by the [local) Civil Rights
Commission.
The charge was timely filed with the
EEOC and all other jurisdictional require-
ments have been satisfied.
Summary of Investigation
At the time the charge was feed,e-
spondents utilized the following procedures
to select policemen: 1) a written general
ability test administered by the Civil Service
Commission. 2) the formation of an eligibil-
ity list by the Civil Service Commission; 3) a
background investigation; 4) a physical
exam by the Department of Safety Medical
Director, 5) a written psychological exam; 6)
a psychiatric interview and evaluation of
the summaries of the background investiga-
tion and the psychological exam; 7) review
of the applicant's file by the Chief of Police;
and 8) final selection by the Director of
Public Safety.
Charging Party received a score of 81.515
on the written exam which placed him 832
on the eligiblity list. He took the polygraph
test prior to the psychiatric and psychologi-
cal tests and was rejected on psychological
grounds as a result of the polygraph test. He
alleges that his responses to questions posed
during the polygraph were not accurately
reflected. For exampe. he stated that his af-
firmative answer to a question regarding his
knowing homosexuals was recorded as "ap-
plicant admitted going with homosexuals.".
Respondent's Chief of Police denied that
Charging Party had been discriminated
against and stated that Respondent Civil
Service Commission devised and adminis-
tered the tests used. Respondents refused to
cooperate in the investigation of the charge,
claiming that the charges fell within the
continuing jurisdiction of the United States
District Court ? ' ' where an action had
been brought under 42 U.S.C.A. 4 1981.
An action was filed on October 12, 1972,
by the-an organization composed principal-
ly of Black police officers, and individual
Black police officers against the city, its
Chief of Police, the Director of the Cities
Program, and members of the (city] Civil
Service Commission. The suit alleged that a
range of practices used by the Respondents
in the recruitment, testing, screening and
hiring of new patrolmen; the assignment,
treatment and promotion of current police
officers, as well as the examination adminis-
tered by the Civil Service Commission on
July 15, 1972, had a racially discriminatory
effect on Blacks and Puerto Ricans. The
Court held that the evidence created a
prima facie case that the battery of tests
constituting the examination of July 15,
1972, had a racially discriminatory impact
upon Blacks and Puerto Ricans who took
the examination. The court fixed the mini-
mum number of appointments of Blacks
and Puerto Ricans, male and female, to be
made to the police force from the 1972 eligi-
bility list at 18 percent.
An action under 42 U.S.C.A. 11981. how-
ever, is not a bar to action by any other per-
sons who may believe that Respondents
have in the past discriminated, or are pres-
ently discriminating, against them in viola-
tion of Title VII of the Civil Rights Act of
1964. as amended. It is well established that
an action for employment discrimination in-
volving racial discrimination may be
brought under Title VII or 42 U.S.C.A.
3 1981. See e.g. Head v. Timken Roller Bear-
ing Company [6 EPD 188763. 486 F.2d 870
(6th Cir. 1973), Taylor v. Safeway Stores,
Inc. [10 EPD 1 10.4101. 524 F.2d 263 (10th
Cir. 1975) where it was held that 42 U.S.C.A.
? 1981 is an independent cause of action
which may be maintained either concur-
rently with a claim under Title VII or with-
out exhausting Title VII remedies and Boles
v. Union Camp Corp., 57 FRD 46 (S.D. Ga.
1972) 5 EPD 18051 where a class action was
brought by several Black employees of
Union Camp Corporation and by two former
black employees and two blacks who were
-ejected under Title VII and 42 U.S.C.A.
1981.
Although Charging Party successfully
-ompleted the eligibility exam, he was re-
jected for employment. The rejection of the
Charging Party was based on psychiatric
unfitness. An analysis of the points of rejec-
tion reveal wide disparities in the percent-
ages of Blacks and Whites rejected. For ex-
unple, 7.9 percent of Whites were rejected
)ecause of background while 19.3 percent of
Slacks were rejected; .79 percent of Whites
vere rejected for psychological reasons
(consisting of an IQ test and personality
test) while 8.7 percent of Blacks were reject-
ed; 16.90 percent of Whites were rejected
for psychiatric reasons while 39.3 percent of
Blacks were rejected; 28.30 percent of
Whites were rejected for medical reasons
while 18.7 percent of Blacks were rejected.
It is well established that employment
tests and qualifications which have a dispro-
portionate exclusionary effect on minority
applicants and do not have a demonstrable
relationship to successful performance on
the job are prohibited. See e.g. Griggs v.
Duke Power Co. [3 EPD 18137], 401 U.S.
424, 431 (1971). Castro v. Beecher (4 EPD
ff 77831, 459 F. 2d 725 (1st Cir. 1972).
Furthermore, the Commission has held
that the use of any test which adversely af-
fects the hiring, promotion. transfer, or any
other employment or membership opportu-
nity of classes protected by Title VII consti-
tutes discrimination unless: a) the test has
been validated and evidences a high degree
of utility and b) the person giving or acting
upon the results of the particular test can
demonstrate that alternative suitable
hiring, transfer, or promotion procedures
are unavailable. See EEOC Guidelines on
Employment Selection, 29 CFR 4 1607.3.
Conclusion
In view of the disproportionate Impact of
Respondents' selection procedures on
Blacks, and in the absence of validation of
the procedures, we conclude that there is
reasonable cause to believe that Respond-
ents violate Title VII of the Civil Rights Act
of 1964, as amended, on the basis of race by
using hiring practices and selection proce-
dures which discriminate against Blacks.
SCIENTIFIC VALIDrrr OF POLYGRAPH TESTING:
A RESEARCH REviEw AND EVALUATION
STHNIC AND GROUP DIFVERENCE$
Another category of subject differences
that may affect polygraph validity has to do
with ethnic and group differences In physio-
logical response. Research conducted cross
culturally (e.g., 97,104,158). indicates that
there are ethnic differences in response to
stress. Such differences may, in turn, affect
detection of deception. As noted earlier.
these effects may interact with the ethnic
identification of the examiner. However, ef-
fects of ethnic differences have not been di-
rectly tested with respect to polygraph ex-
aminations.
AUTONOMIC LIABILITY
A final individual difference is what Waid
and Orne (194) have referred to as automat-
ic lability. Regardless of other differences
among subjects, there may be consistent in-
dividual differences connected with their
level of automatic arousal.
Although there is considerable variance
for an individual in autonomic responses to
most physiological measures of automatic
nervous system (ANS) arousal, electroder-
mai lability may be different. Given the im-
portance of the EDR for polygraph exami-
nations, it may be essential to understand
more about this factor. Unfortunately, most
of this research (e.g., 200) has been conduct-
ed with concealed information tests and not
with CQT or R I tests.
SETTING
One theory underlying lie detection using
the polygraph is that the threat of punish-
ment leads an individual to manifest a phys-
iological reaction (48). This suggests, then,
that settings in which an Individual is more
certain of being detected and in which the
consequences are greatest, will permit
higher levels of detection. Furthermore, in
order to be certain of being detected, a sub-
ject must believe in the efficacy of the poly-
graph procedures in order for it to function.
According to some (e.g., 194), the polygraph
is often used somewhat like a "stage prop,"
and its presence is meant to "enhance the
subject's concern." Stimulation tests, used
in almost all field polygraph examinations,
serve the same function. albeit more direct-
ly. There is considerable discussion (e.g..
202) in the literature about how frequently
within a polygraph examination such stimu-
lation tests should be utilized in order to in-
crease the validity of the examination.
INSTRUMENT
Some research, reported by Orne and his
colleagues, addresses the question of the sit-
uational features necessary for a polygraph
examination. In one component of a study
reported by Orne, et al. (123), subjects were
led to believe that the polygraph recording
equipment was not operative. There was
some indication that the pretest condition
in which subjects were led to believe that
the polygraph instrument was inoperative
produced a lower detectability; however, re-
sults were not statistically significant. In an
earlier study (161), detectability was not af-
fected by subjects' belief in whether the ma-
chine was recording. Both of these studies
involved use of concealed information tests.
A more recent study by Orne's group (198)
tested a similar hypothesis using a different
procedure. In this study, subjects saw the
polygraph machine turned off, although the
experimenters actually ran the leads to a
second polygraph device and were able to
record responses during a pretest review of
questions. The results Indicated that sub-
jects who were aware of being recorded had
significantly higher responses to relevant
questions and not significantly different re-
sponses to control questions,
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November 4, 1987
CONGRESSIONAL RECORD - HOUSE
DETacnoa or Dscsr'now In Tnr Ein' oT-
sIERT Cc vzx .. A Rsvlaw AND CRITICAL
A14LTits
(By Paul R. Sackett and Phillip J. Decker)
Empirical research on the validity of the
polygraph, voice stress analysis, and paper
and pencil instruments as mechanisms for
the detection of deception is reviewed. It is
noted that while these devices have their
greatest use in the employment context, vir-
tually all research has been done in an
actual or simulated criminal investigation
context. Three separate uses of devices for
the detection of deception in the employ-
ment context are identified, namely, pre-
employment screening, periodic screening of
current employees, and investigation into a
specific theft. Differences between each of
these uses and the criminal investigation
context are identified, and issues limiting
the generalizability of research findings
from one context to another are raised.
Among the issues are the effects of a low
base rate of guilt on accuracy, the effects of
making multiple judgments on overall accu-
racy, and the potential for racial or ethnic
bias in judgments of guilt or innocence.
An extensive body of literature exists on
the topic of the detection of deception and
investigation of theft using various tech-
niques, including interpretation of physio-
logical responses and questionnaries. Very
little of this literature has appeared in psy-
chological journals. Most reports are con-
tained in polygraph trade publications or
law enforcement publications. Lykken
(1978b) discussed the lack of involvement by
psychologists in this field, labeling It a case
of "policemen rushing in where science
fears to tread."
Regardless of who has done the research
or its quality, the vast majority of poly-
graph examinations are conducted in the
employment context rather than the crimi-
nal investigation context (U.S. Senate,
1974). However, virtually all reported re-
search has dealt with actual or simulated
criminal investigations.
REACTIONS TO POLYGRAPH EXAMINATIONS
The questions raised in this paper have fo-
cused on the accuracy of polygraph exami-
nations. It should be noted that a number of
objections to the polygraph can be made on
ethical, social, and constitutional grounds.
Among these are objections that the poly-
graph is an invasion of privacy and an in-
fringement on the dignity of man, that it re-
verses the principle that one is innocent
until proven guilty by requiring individuals
to prove their innocence, and that it violates
5th amendment rights against sell incrimi-
nation. Proponents of the polygraph reply
that individual rights must be weighed
against employer losses and that individuals
have an obligation to society to cooperate in
attempts to identify dishonest individuals
(Shattuck, Brown, and Carlson, Note 6).
The stand one takes regarding the poly-
graph may be largely determined by wheth-
er one's sympathies lie with the individual
or the employer.
Another issue of interest is the attitude of
applicants and employees toward the poly-
graph examination- Ash and Wheeler (Note
7) report that 86 percent of applicants
thought the examination was fair, 96 per-
cent were willing to take the testr to get a
job, and 88 percent were willing to routinely
take an exam as a condition of employment.
They interpret these results as indicating
that resistance to the polygraph has been
overestimated. However, all participants
completed the attitude questionnaire after
the polygraph examination. Thus, the ques-
tionnaire may have been viewed as part of
the selection procedure, and applicants may
have felt that expressing negative attitudes
toward the examination would affect their
chances for employment. Further research
is needed in a setting in which no negative
outcome may be anticipated by the subjects
due to expression of negative attitudes.
BIAS IN POLYGRAPH axAMINATION5
Title VII of the Civil Rights Act of 1964
prohibits discrimination in employment de-
cisions on the basis of race, color, religion,
sex, and national origin. Two potential
sources of bias in polygraph examinations
have been identified. The first Involves pos-
sible racial, ethnic, or sexual differences in
physiological reactivity to psychological
stress. Kugelmass and Lleblich (1968) have
shown that persons of Eastern mediterrane-
an origin show GSR non-reactivity more
often than other ethnic groups. Relying on
different physiological measures for differ-
ent subgroups may result in differential ac-
curacy across subgroups. It should be noted
that ethnic differences in GSR level (e.g..
Johnson and Corah, 1963; Lazarus, Tomita,
Opton, and Kodama, 1966) do not constitute
a threat to polygraph accuracy, since the
subjects' responses to irrelevant or control
questions are compared with their responses
to relevant questions.
Second. and perhaps of greater interest, is
the potential for factors such as first im-
pressions. prejudices, and stereotypes to
consciously or unconsciously affect the
overall judgment made by the examiner.
Orne, Thackray. and Paskewitz (1972) have
suggested that "the manner in which ques-
tions are asked can certainly influence the
physiological response. The Interrogator
wishing to obtain a record with physiologi-
cal evidence of deception is likely to be able
to do so. In view of the work of Rosenthal
(1966) on experimenter bias, it seems ex-
tremely likely that the interrogator could
unwittingly communicate some aspects of
his conviction to the subject" (p. 751).
There are no published field studies report-
ing information on the percent of deceptive
and nondeceptive judgments among the var-
ious protected classes. Such information
should be readily available and deserves t
be reported.
There is one appelate court case confin,
ing the EEOC's right of access to polygrap;
records (Circle K Corporation vs EEOC,.
The information sought by the EEOC is in-
structive: "a list of all applicants and
present employees subjected to the poly-
graph examination, their racial/ethnic ider-
tity and whether they were accepted or re-
jected; documentation of the nature, stanc-
ardization and validity of the polygrap '
test, and a list of questions asked of each a;
plicant; qualifications of the examiners win
administered the tests ? ? ?" (P. 1054). The
EEOC was granted access to this informa-
tion, but a case involving discrimination on
the basis of the polygraph examination has
not come to trial. There have, however,
been a number of cases in which the subjec-
tive nature of the decision made in an em-
ployment interview had been identified as
having the potential for discrimination (e.g.,
Hester vs Southern Railway Co., Causey vs
Ford Motor Co.). On the other hand, one
interview case has upheld the employer's
right to subjective evaluation unless there I
evidence of bias (Salton vs Western Elec-
tric). Thus, an examination based solely on
the interpretation of polygraph charts may
be on stronger legal grounds than one in-
volving both charts and an evaluation of the
examinee's verbal and nonverbal behavior.
[From the Nation, Dec. 21. 1985)
LIES, DAMN LIES-AND POLYGRAPHS
(By Daniel Jussim)
A machine that monitors blood pressure,
respiration and the skin's electrical condue-
H 9543
tivity is depriving term of thousands of law-
abiding people of lobs every year. Used by
employers as a means to ands both dubious
and devious, the polygraph Is nevertheless
becoming as familiar as the time clock in
more and more American workplaces. In the
private sector alone, estimates of the
number of polygraph tests administered an-
nually range from several hundred thou-
sand to 2 million. The American Polygraph
Association says that three-quarters of
them are used in preemployment screening.
A Presidential directive revealed last week
swells the number of Federal employees
who must undergo examination.
The test is most commonly used by busi-
nesses in which low-level employees handle
large sums of cash daily in return for
modest checks weekly, such as banks, res-
taurants and department stores. But all
kinds of concerns tap into their workers'
supposedly telltale heartbeats: meatpacking
companies, hospitals and even the Yale
Club have used "lie detectors" to screen pro-
spective employees, check upon workers pe-
riodically or track down culprits in the wake
of a theft or act of sabotage. Usually a secu-
rity firm Is hired to do the dirty work, but
some businesses have in-house operations.
Because employers who favor polygraph
testing generally make it a condition of em-
ployment, workers find it difficult to refuse
to take the test.
The machine is especially popular among
employers who resent Federal and State
regulations on hiring and firing; its reputa-
tion and supposedly scientific tool gives
them a license to reject or sack whomever
they please. Polygraph victims can almost
never prove that an employer acted illegal-
ly. We didn't fire you because you're getting
old and costing us too much, a company can
argue; we fired you because the polygraph
says you're a thief.
Don Blews, once a manager for a depart-
ment store chain in the Carolinas, provided
a glimpse into polygraph practices when he
testified before a Senate Judiciary subcom-
mittee in 1978. According to Blews, his dis-
trict supervisor told him that blacks "just
don't work out" and ordered him to dismiss
two black women workers. Blews said that
when he refused, the supervisor remarked.
"we'll have to show you how our polygraph
test works around here." The women were
subsequently fired, after their test results
indicated "a sign of a possibility of deceit."
His bosses also turned down the only two
blacks whom he had ever recommended for
management trainee positions, again on the
basis of the polygraph test. Others who lost
their jobs at Blews's store included a woman
who confessed that her boyfriend used to
smoke marijuana, a woman who admitted
that she occassionally suffered from mi-
graines, an employee who said her heart
condition made it unsafe for her to take the
test and two high-school part-timers whom
the polygraph examiner refused to fit into
his schedule. Blews also testified that "the
polygraph companies used by my employer
apparently had a quota of employees they
had to fire at every round of testing in order
to show that the testing was accomplishing
something and that the cost ? ? ? was justi-
fied-" Blews was fired after protesting
against misuse of the test-but not before
taking an examination himself and being ac-
cused of giving deceptive answers.
Besides using electronic inquests to dis-
criminate against racial minorities, compa-
nies use them to spot deviants of all stripes.
In 1977 workers at the Coors brewery
struck- partly because they objected to the
company's voyeurism. the polygraph agency
employed by Coors asked job applicants
these questions: What are your sexual pref-
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CONGRESSIONAL RECORD - HOUSE ot'ember 4, 1 ?~ 7
erences? flow often do you change yo'ir un-
lerwear? Have you ever done anythin with
your wife that could be considered immoral?
Are you a homosexual? Are you a C,:mmu-
nist?
Union organizers have also been tar sets.
The National Labor Relations Board re eent-
ly ruled on a case involving two wai.resses
who tried to organize the Shoney's restau-
rant chain in Georgia. One of them. `Maria
Sganga, was fired on the basis of informa-
tion she revealed during the interriea pre-
ceding a polygraph examination. The com-
pany said she admitted she had taken home
some leftover potatoes and parsley, a viola-
tion of company rules even though she had
her manager's permission. Patricia Burch,
the other waitress, had refused to sign the
test consent form, which in Georgia permits
the examiner to inquire about a worker's fi-
nances and military service. She considered
her finances her own business and d_dn't
want to be questioned about the military be-
cause her husband was in the service. She
offered to sign a revised consent form but
was fired nonetheless, for actions her boss
considered tantamount to refusing the poly-
graph test.
N.L.R.B. Judge Richard J. Linton -,fled
that Shoney's "discharged Sganga and
Burch because of their union and other pro-
tected ' ' ' activities," adding that the com-
pany "would not have ordered the poly-
graph tests in the absence of such activi-
ties." He ordered them reinstated with back
pay.
In the course of the hearing, a director of
operations for Shoney's testified that he
uses the polygraph "to keep people honest,"
that is, as a deterrent to theft. Jay Harvey,
director of legislation for the A.F.L.-C.I.O.'s
food and allied services trades department,
whose federated union members are often
subjected to polygraph tests, says the prac-
tice is common: "There are two kinds of em-
ployers who use the polygraph. The kind
who honestly have the mistaken belief that
the machines work-that's the minority.
The majority of employers know that the
machine is not necessarily reliable." but be-
lieve, as Richard Nixon put it, that poly-
graphs "scare the hell out of people."
'Even employers simply seeking job- related
information from applicants may end lip in-
vading their workers' privacy. People inter-
rogated while hooked up to a pneumatic
chest tube, a blood-pressure cuff and a gal-
vanic skin-response indicator often come
away feeling humiliated and violated Poly-
graph foes have thus dubbed the tests psy-
chological rubber-hose treatments and
mental strip searches. The New York State
Attorney General's Office has charged sev-
eral examiners with sexual harrassment.
Carlin Meyer. who heads the office's labor
bureau, says the office receives at least ten
polygraph-related complaints each weer
A recent court case in Chicago revealed
that blacks may suffer the adverse conse-
quences of polygraph errors more frequent-
ly than whites. In a discrimination suit
brought in U.S. District Court, individuals
seeking jobs as prison guards proved to the
satisfaction of the court that blacks fail pre-
employment polygraph tests more often
than whites. Jon Bauer, a staff attorney for
the Legal Action Center of New York. a
public interest law firm that has litigated
several polygraph cases, believes that the
discrepancy may result from differences be-
tween blacks and whites physiological re-
sponses to stress, tensions between wtute ex-
aminers and black subjects. or prejudices
that can enter into an examiner's evalua-
tion, which relies as much on subjective im-
pressions as on squiggles on a chart. In any
case, said Bauer. "we should not tolerate a
test that has a discriminatory effect on
blacks when there is no adequate evidence
that the test is valid."
Losing one's job or not getting hired be-
cause of failure to pass a polygraph test can
have disastrous consequences. A toy-depart-
ment manager who was fired by one compa-
ny after flunking a test (he had high blood
pressure, which can skew test results) was
dismissed from his next job after six
months, when his new boss learned of the
previous exam. In effect, the man had been
blackballed in the toy industry.
In another form of polygraph double jeop-
ardy, job seekers who have failed a test as
applicants at one company find themselves
facing the same polygraph agency when
they look for work with a different employ-
er. When the agency reports that they pre-
c'ously failed the test, they are sent on
their way.
More than twenty states and the District
of Columbia have passed legislation limiting
polygraph use by private employers. All of
the laws prohibit companies from "requir-
ing" the tests, but ten states permit firms to
'request" th -.t individuals take them. Viola-
tions are ci usidered a misdemeanor and
generally pt. 'fished with a small fine. Em-
ployers seek.:- 3 to skirt the law have several
options. Lars a chain stores in regulated
states can h.-.re employees in an adjacent
state that has no polygraph statute and
then transfer them to the regulated state.
And employer pressure in "request" states
can easily make workers feel that they have
no choice but, take the test. Finally, some
companies sit iply ignore that law and pay
the fine if thi : get caught. Some critics esti-
mate that a many as 59,000 workers per
year are dent d employment either because
they refuse to take the test or because of in-
accuracies.
Because most state regulations are tooth-
less, polygraph foes are pushing for Federal
legislation prohibiting such tests. The Poly-
graph Protection Act of 1985, which would
effectively ban the instrument in the pri-
vate sector, is scheduled for a floor vote in
the House before Christmas. Co-sponsored
by 164 representatives, the bill has received
strong support from the A.F.L.-C.I.O.
Unlike earlier polygraph bills, which got
bogged down in arguments over the consti-
tutional right to privacy. H.R. 1524 is
couched solely in terms of employment op-
portunity. According to labor lobbyist Jay
Harvey, the bill will pass because "the
American people don't like the test" and
"there aren't too many [in Congress) who
want to say that they advocate polygraphs."
The bill's sponsor, Pat Williams, is also con-
fident of passage. Antipolygraph sentiment
runs the ideological gamut: Jack Kemp sup-
ports H.R. 1524, and Orrin Hatch and
Edward Kennedy jointly introduced the
Senate version, S. 1815.
The polygraph industry's answer to the
proposed ban is a Federal licensing law
which would set standards for examiners.
That the industry favors that approach is
not surprising, since use of the machine is
more widespread in the twenty-six states
that have licensing laws than in states
having no polygraph statutes. The fact that
Shoney's is in Georgia, a licensing state,
should make legislators wary of the poly-
graph lobby's arguments. If every examiner
had the integrity of a Boy Scout, the prob-
lems Inherent in the technology of the poly-
graph would not go away.
A number of big companies, including J.C.
Penney, Sears, Roebuck & Company, I.B.M.
and General Electric, don't use the poly-
graph. At companies that do, workers have
some defenses against it, even without Fed-
eral legislation. Some unions protect their
members, either by winning contract provi-
sions forbidding the test or by intervening
to stop an employer from administering the
examination. And workers ill treated by
polygraph testing have filed a variety of
civil suits, invoking state polygraph laws.
Federal and state fair-credit reporting laws
and such legal principles as malpractice, dis-
crimination and defamation. A number of
plaintiffs have received awards in the six
figures. In 1982 an assistant manager in a
Zayre department store in Florida received
$250,000 as compensation for being fired
under what the court described as "circum-
stances implying that he had been guilty of
a felony." He had failed a lie detector test
two years earlier and was dismissed for al-
legedly stealing $500 from the store. But
after he left, the thefts continued, and even-
tually the culprit-who had passed the
test-was discovered. The man sued Zayre
for defamation, and the company that ad-
ministered the test for negligence.
Unfortunately, invasion of workers' priva-
cy and unfair denial of employment would
not end with the banning of the polygraph.
Bosses today have a battery of tests at their
disposal that evaluate urine, handwriting or
personality. Some who have been forced to
abandon the polygraph have turned to writ-
ten "honesty tests." If polygraphs are out-
lawed, workers will no doubt be faced with
the question. Have you stopped ripping off
the company?
Mr. RAHALL. Mr. Chairman, I have long
supported legislation such as H.R. 1212, the
Employee Polygraph Protection Act, which will
grant much needed protections for American
workers. This measure is needed to ensure
that employees are not unfairly denied em-
ployment and careers wrongfully ruined based
on the results of the highly questionable poly-
graph test.
The simple fact is, there is no scientific evi-
dence that polygraph machines or other so-
called lie detector tests accurately and reliably
detect dishonesty. Which is precisely why re-
sults of such tests are not admissible in Fed-
eral courts. Because the polygraph test basi-
cally relies on simple mechanical readings of
variations in an individual's rate of breathing,
skin perspiration, and blood pressure during
questioning, it is valid only as a test of stress.
How can stress related to deception be sepa-
rated from the fear, anger, frustration or humil-
iation resulting from being forced to take the
test?
The use of lie detector machines in the
American workplace has dramatically escalat-
ed in recent years. Despite the questions
about the accuracy of lie detector tests, ap-
proximately 2 million are given each year,
most by private companies. The tests are an
invasion of a worker's privacy and require an
individual to prove his or her innocence even
without evidence of suspicion of guilt. Our
workers should not be denied job opportuni-
ties or discriminated against because they
may refuse to take such an unreliable and in-
accurate test or because of false test results.
Because State laws have proved ineffective
in protecting America's workers from the abu-
sive and degrading tests, legislation on the
Federal level, such as H.R. 1212, is desper-
ately needed. As Members of Congress, it is
our responsibility to protect the citizens of this
country from unwarranted and unfair treat-
ment. I strongly urge my colleagues to support
this legislation and to oppose amendments
designed to weaken the bill or protect specific
industries.
Mr. BONKER. Mr. Chairman as an original
cosponsor of H.R. 1212, 1 want to urge my
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CONGRESSIONAL RECORD - HOUSE H 9545
colleagues to support this legislation which
will protect workers from being denied em-
ployment either because of information ob-
tained through or refusal to take a lie detector
test.
According to the office of Technology As-
sessment, over 2 million polygraph tests are
administered every year, 90 percent of them
by private employers. Yet, over the years,
studies have consistently shown that poly-
graph tests are unreliable. In most cases, lie
detector tests are inadmissable as court evi-
dence because of their questionable validity.
These same studies have also shown that
lie detector tests can be beaten because they
are only designed to measure physiological
responses with no determination as to cause.
Self-inflicted pain, extreme nervousness, and
apprehension all can influence test results. It
is up to the examiner to interpret the results
and often these individuals are poorly trained.
Beyond the technical questions of validity, I
believe the improper use of lie detectors does
a disservice to our constitutional premise of
innocence until proven guilty. Businesses who
rely on lie detector tests to screen job appli-
cants, assume untrustworthiness unless a lie
detector test can be passed. Unfortunately, it
has been shown that it is the most honest in-
dividuals who suffer the highest incidents of
failure because of their adverse reactions to
having their honesty questioned during these
tests. This injustice is magnified in many
cases, when workers find themselves forced
to respond to questions into areas of their
personal life with little regard for their right to
privacy or relevancy to their work ability.
Many businesses, however, strongly believe
that lie detector tests are an essential tool in
preventing employee crime. Evidence exists,
however, which shows that businesses that
conduct thorough background checks and
foster a trusting work atmosphere tend to
have lower incidence of employee crime than
those who rely on lie detectors to police their
workforce.
Last, I am aware that many States have al-
ready passed legislation to protect workers
from lie detector tests as conditions for em-
ployment. These laws have been circumvent-
ed by many businesses who either coerce ap-
plicants into taking tests "voluntarily" or ar-
range for interviews in neighboring States
where prohibitory laws do not apply.
All this evidence points to the need for uni-
form, Federal legislation to ensure protection
of workers' constitutional rights. I urge my col-
leagues to consider the overwhelming evi-
dence against polygraph tests and support
this legislation today.
Mr. HALL of Texas. Mr. Chairman, I rise in
opposition to the Employee Polygraph Protec-
tion Act, H.R. 1212.
I believe that employers should be allowed
the opportunity to continue to use the poly-
graph tests responsibly and for legitimate pur-
poses. The polygraph helps protect the finan-
cial health of American businesses, and the
health and safety of the customers as well as
the employees.
The House of Respresentatives has repeat-
edly voted to permit the use of polygraph in
circumstances where the public interest justi-
fies its use. We have voted to allow the FBI,
the CIA, and other national defense agencies
to continue to use lie detectors. If, as support-
ers of H.R. 1212 suggest, these tests are so
Ineffective and unreliable, why are we using
them to help protect national security?
Like the Federal Government, private busi-
nesses need the polygraph to guard their sen-
sitive information and to protect the health
and the security of their work forces. Busi-
nesses should be permtted legitimate use of
he detector tests as long as the rights of em-
ployees are protected.
I believe that this matter is one which
should be regulated by State law. My home
State of Texas has one of the toughest poly-
graph laws in the country which I introduced
when I was in the State senate.
I urge my colleagues to vote against H.R.
1212. Voting for this legislation is just one
more vote to abolish the right of the State to
govern its citizens without interference from
the Federal Government.
Mr. WEISS. Mr. Chairman, I rise in support
of H.R. 1212, the Polygraph Protection Act, as
it was reported from the House Education and
Labor Committee. This bill is absolutely essen-
tial in order to restore basic fairness to the
American workplace.
Let us state the issue clearly. There is no
such thing as a lie detector in the workplace.
There exist certain mechanical and electrical
devices which are intended to detect lies by
employees or potential employees. But there
exists not one shred of evidence that that is
what they do.
Quite to the contrary, there is a preponder-
ance of evidence demonstrating that the tests,
themselves, often lie. And it is not white lies
that these devices tell, but lies that have seri-
ous and lasting consequences for the lives of
millions of American workers.
The American Medical Association says:
Studies indicate that polygraph tests
result in enough false-positive and false-neg-
ative findings of truthfulness that their
value is little better than the probabilities
of chance, or flipping a coin.
Americans enjoy games of chance as a
form of recreation. But they should not and
will not tolerate employers who play games
with the future of 2 million Americans who are
subjected to lie detector tests each year. The
continued use of devices masquerading as lie
detectors is a serious invasion of privacy and
an affront to basic human dignity.
H.R. 1212 would eliminate the use of these
devices in the workplace. It would make it ille-
gal for employers to require or request that
employees or job applicants take lie detector
tests. It would ensure that employees are not,-
fied of this prohibition, and it would provide
specific recourse in the case of violations.
H.R. 1212 is an urgently needed measure that
ought to be approved intact and without any
weakening amendments.
However, the record of the House of Repre-
sentatives in considering this type of legisla-
tion is far from pristine. Last year, during con-
sideration of a similar measure, the House
voted to exempt industry after industry from
the proposed prohibitions on polygraph use. In
the end, the bill was so full of loopholes that it
really amounted to an endorsement of the use
of polygraphs. Though I strongly approved of
the original measure, I was forced to vote
against the final version that resulted from re-
peated amendments on the House floor.
I fervently hope that the House will not
make the same error this year. There is no ra-
tionale for exempting specific industries from
prohibitions on polygraph use. The fact is that
polygraphs are just as harmful and just as in-
accurate in all workplace settings.
I therefore urge my colleagues to join me in
defeating amendments to exempt different in-
dustries from the bill's prohibitions. For a bill
riddled with exceptions will be worse than no
bill at all. It will only sanction a practice that is
fundamentally at odds with individual rights.
I, for one, will not hesitate to vote against
the final bill if it sanctions polygraph use in the
guise of prohibiting it
Mr. BRENNAN. Mr. Chairman, I rise as a
cosponsor and strong supporter of H.R. 1212,
the Employee Polygraph Protection Act. This
needed legislation seeks to limit the growth of
be detector testing in the workplace-which
has tripled in the past 10 years.
It is estimated that more than 2 million poly-
graph tests are given each year. In fact, 98
percent of those tests were not given by the
FBI or the CIA, but were given by private busi-
ness. Some three-quarters of these tests were
given for preemployment screening.
Our criminal justice system presumes that
an individual is innocent until proven guilty.
Unfortunately, use of the polygraph stands
that important principal on its head as it re-
quires someone to prove their innocence. As
a former criminal prosecutor I am fully aware
of the unreliability in these gadgets. Courts
refuse to accept polygraph results and it is
sadly ironic that criminals are protected from
polygraphs, while American workers are not
This legislation attempts to address that un-
fairness.
Twenty-two States and the District of Co-
lumbia have approved legislation prohibiting
polygraph for use in the private work force.
Another 19 States have attempted to regulate
their use. However, the separate nature of
these laws have not effectively protected
workers from being subjected to these unreli-
a le tests. Many localities are circumventing
t! 3 law by requiring prospective employees to
tL ce the test in a neighboring State which
al ows polygraph testing.
H.R. 1212 is a prudent and moderate ap-
proach to the problem of protecting our citi-
zens from abuse of lie detectors by manage-
ment American workers deserve the same
pr Mection afforded to those accused of
cr:rne---the ability to retain the presumption of
in- )cane until proven guilty which is lunda-
mt ital to our way of justice.
urge my colleagues to join me in strong
support of H.R. 1212.
Mrs. COLLINS. Mr. Chairman, I rise in sup-
port of H.R. 1517, the Aircraft Collision Avoid-
ance Act of 1987.
As many of my colleagues have remarked,
this bill is long overdue. The Federal Aviation
Administration has dragged its feet in imple-
menting collision avoidance systems which
are already available. The FAA has failed to
foster the development of the next generation
of collision avoidance systems.
As chairwoman of the Government Activi-
ties and Transportation Subcommittee,
charged with oversight responsibilities of the
FAA, I am aware of the foot-dragging potential
of that agency. In the case before the Con-
gress today, FAA has delayed for years man-
dating the installation of so- called one-dimen-
sional collision avoidance systems. The agen-
cy's decision appears to have been to delay
this first generation system until the more so-
phisticated system is perfected. Unfortunately,
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-I 9546 CONGRESSIONAL RECORD - HOUSE November 4, 1987
the two-dimensional systems have not come how you can possibly justify the idea Mr. NEAL. That is not an answer. let
as quickly as FAA had hoped. In the -near?- that we should turn our system of Jus- me say to the gentleman.
time, the agency has done nothing. Airline tice on it head by our assuming guilt Mr. YOUNG of Florida. The answer
passengers are not receiving alt the protection and requiring people to prove their in- is no, that is not the case.
that present-day technology offers. nocence. I disagree totally with the gentle-
I suggest that FAA consider itself on r'ctice. Mr. YOUNG of Florida Mr. Chair- man's assumption.
The Congress is going to continue to pay very man, will the gentleman yield? Mr. NEAL. Let me reclaim my time
close attention to FAA activities. Rulemaking, Mr. NEAL. I am happy to yield to and comment on this question of the
research, enforcement, aft these respons.b 1- the gentleman from Florida Federal Government's use of the poly-
ities which FAA may have not properly net, Mr. YOUNG of Florida. Mr. Chair- graph.
will be subject to congressional scrutiny. If man, I thank the gentleman for yield- The fact is that when we entrust
need be, legislation will be offered. As the in& people with important security infor-
chairwoman of the oversight subcommittee, I I would like to suggest to the gentle- mation or other important responsibil-
intend to continue my Srbcoir"ittee's monk- man that in most cases the use of the ities in our Government on the basis
toning via hearings and repoft polygraph is just part of the tool that of their having passed a polygraph
i wish ^ au hors On big, industry urea, or in the case of the De- test, we are running an enormous risk.
the public Works and Transportation Comm*- fense Department, it is just a part of To those who object to this legislation
tee and the Committee on Science and Tech- the process they use: when determin- because it continues to allow agencies
nology. I wholeheartedly support this measure. ing whether or not some one should be of the Federal Government to use
(Mr. MARTINEZ addressed the given access to our most sensitive na- these tests, I say I think they are cor-
Committee. His remarks will appear tional security secrets, certain court rect. We are running a grave risk to
hereafter in the Extensions of Re- cases in our country in the last couple our national security by depending on
marks. I of years almost mandate polygraphs these gadgets which are clearly very
Mr. GUNDERSON. Mr. Chairman, I for employers. highly inaccurate. We have had impor-
just want to point out in closing, let is Let me read just a very brief state- tart testimony from a number of gen-
not be hypocrites here today. Let is ment in response to the gentleman's tleman on the floor. including the dis-
not impose upon the private sect it question. tinquished gentleman from Utah [Mr.
what we are unwilling to do for our- Mr. NEAL. Is the gentleman re- Nisi_gotrl. a professor of statistical
selves. sponding to this question, which indicates that the error rate of
I remind my colleagues, every one of Mr. YOUNG of Florida. Yes, I am these gadgets is incredibly high.
them who has spoken in support of responding to the gentleman's ques- Mr. YOUNG of Florida. hir. Chair-
this legislation today needs to be re- tion. man, will the gentleman yield?
minded that on June 16 of this Year 1y Mr. NEAL. All right, r would like to Mr. NEAL I yield to the gentleman
a vote of 414 to nothing we appro- d hear It. from Florida
the Mica amendment as it deals wi h Mr. YOUNG of Florida. This is from
foreign policy in the implementation testimony from the Florida Secretary Idr. YOUNG of Florida. Mr. Chair-
respond d to that
and conduct of our foreign policy. of State to the other body last year. very v, I would alike I say y to colleg
On May 11 of this year, by a vote of He said: very point and
going
343 to 44, we established the use of a Recent litigation has also established the pay close attention to what t I and gue,
permanent polygraph examination for obligation of businesses to conduct adequate to say. The Defense Department in
national security purpose. background evaluations to assure the pro- using the polygraph when screening
The CHAIRMAN. Ali time has ex- teetion of the public. Rulings from several people who have applied for top secret
pired. eases nationwide support this statement. and special access type clearance, uses
Pursuant to the rule, the committee One recent pending suit involves a carpet the polygraph only as a part of their
amendment in the nature of a substi- cleaning company whose employee raped screening process. It is not the total
tute, now printed in the reported bill and murdered the child of a client. The pro- determining factor.
'shall be considered as an original bill prietor has been sued for failure to perform The gentleman suggested that to
for the purpose of amendment and adequate employment screening, specifically allow someone that kind of access just
each section shall be considered as for not using an available resource-the on the basis of a polygraph is a grave
having been read. polygraph. risk. But let me say to the gentleman
The Clerk will designate section 1. p 1230 that that is not how it is done. Poly-
The text of section 1 is as follows: Mr. NEAL Mr. Chairman, reclaim- graph examination is just part of a
Be it enacted by the Senate and Bosse time, the gentleman is not re- lengthy process used to clear one for
Representatives 01 the united Stales cd Ing my access to classified materiel
America in Congress assembled, sponding to my question. The CHAIRMAN. U there are no
SSCTION I. SH()aT TITLE. Mr. YOUNG of Florida. Try again. amendments to section 1, the Clerk
This Act may be cited as the "Employee Mr. NEAL Mr. Chairman. the ques- will designate section 2.
Polygraph Protection Act". tion is this, I say to the gentleman The text of section 2 is as follows:
Mr. NEAL. Mr. Chairman. I move to from Florida. that the proponents of
strike the last word. the widespread use of polygraph test- SEC. L PROHIBITTOSS ON Lit DETECTOR USE.
Mr. Chairman, I would like to try Ing, putting aside the accuracy of It shall be unlawful for any employer en-
again. Earlier I raised two questions these gadgets which I hope we get to gaged in commerce or in the production of
concerning opposition to this bill One in a minute, but putting that aside, is goods for commerce-
is the question, the very basic question it not true that when one says to a (1) directly or tndirectly, to require, re-
concerning our system of justice, prospective employee, or to others pr quest, suggest, employee cause any or Suobmmitt to
wherein we assume our people to be under a wide variety of circumstances any lie de test; to take or submit
Innocent until proven guilty. It is abso- that as a condition of one thing or an- (s) to use, accept, refer to, or inquire con-
lutely clear that the widespread use of other one has to take this test, that we cerning the results of any lie detector test of
polygraph tests assumes quite the op- are assuming their guilt and requiring any employee or prospective employee.
posite. It essentially says that we that they prove their innocence? That (3) to discharge, dismiss, discipline In any
assume people in a variety of cirrum- Is the question. marmer, or deny employment or promotion
stances are guilty and we think its ap- Mr. YOUNG of Florida Mr. Chair- to, or threaten to take any such aetton
propriate. as a condition of employ- man. if the gentleman will continue to against-
ment In some cases, or under other yield, I do not see It that way at all. If (A) any employee or por active employee rorp wt1o
conditions that they should have to that were the case, then the Federal sa viibmlt to o an re t an lie ie detector test; or
prove their innocence. Government would obviously not be as (B) any employee or prospective employee
Would one of the opponents of this heavily Involved In the use of poly- on the basis of the results of any tie deter
bill please help me in understanding graph as we presently are. for test. or
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CONGRESSIONAL RECORD - HOUSE H 9547
(4) to discharge or In any manner discrimi-
nate against an employee or prospective em-
ployee because-
(A) such employee or prospective employ-
ee has filed any complaint or instituted or
caused to be instituted any proceeding
under or related to this Act;
(B) such employee or prospective employ-
ee has testified or is about to testify in any
such proceeding: or
(C) of the exercise by such employee. on
behalf of himself or others. of any right af-
forded by this Act.
The CHAIRMAN. Are there amend-
ments to section 2?
Mr. BARTLETT. Mr. Chairman, I
move to strike the last word.
(Mr. BARTLETT asked and was
given permission to revise and extend
his remarks.)
Mr. BARTLETT. Mr. Chairman, I
rise for the purpose of clarification.
Mr. Chairman, my good friend, the
gentleman from North Carolina [Mr.
NEAL] is so eloquent on this case, and I
want to pursue a bit of what he has
mentioned a moment ago because I
think the House needs to understand
it. I would pose a question to the gen-
tleman in a moment and give him
ample opportunity to respond.
The House should be willing to take
one of two positions, but not both si-
multaneously. We should either con-
tend, as the bill does, that the poly-
graph should not be used on any occa-
sion or we should permit it to be used
but not as the sole determinant.
The gentleman from North Carolina
[Mr. Ni.]. EAwas eloquent a moment
ago in essentially saying it should not
be used as the sole determinant.
Frankly, I agree with that.
I do want to point out to the gentle-
man that one of the key features of
the Darden-Young substitute is that
for private employment as well as
public employment, that the poly-
graph shall not be able to be used for
discharging, disciplining, or denying
employment or promotion to any em-
ployee as the sole determinant, or
based solely on the analysis and opin-
ions of the polygraph examiner.
My question is, is the gentleman pro-
posing that we prohibit the use of
polygraph even as the sole determi-
nant, or does he believe that it should
be as is currently done in national se-
curity, permitted to be used as one de-
terminant, but not the sole determi-
nant?
Mr. NEAL. Mr. Chairman, will the
gentleman yield?
Mr. BARTLETT. Mr. Chairman, I
yield to the gentleman from North
Carolina.
Mr. NEAL. Mr. Chairman, the over-
whelming evidence offered before our
Subcommittee on Legislation and Na-
tional Security on this question indi-
cates that the polygraph tests are not
lie detector tests. They are not reli-
able. They are not accurate. They
cannot be depended upon.
So it is ridiculous to use these tests
as a determinant of accuracy when
they are inherently unreliable, as the
gentleman from Texas [Mr. BROOKS],
the chairman of our full committee.
pointed out.
They can be useful. We can scare
people with them. As long as people
believe there is a level of accuracy
here, we can scare people into admit-
ting guilt, but the fact of the matter is
that these things are inherently unre-
liable. It is no more accurate than the
flip of a coin, as one witness said.
Mr. BARTLETT. Mr. Chairman, I do
not want to put words in the gentle-
man's mouth, but I do want the House
to understand. The gentleman then is
advocating that we prohibit the use of
the polygraph in all cases, even as one
determinant, rather than prohibiting
its use as a sole determinant?
Mr. NEAL. Mr. Chairman, if the
gentleman will yield, that would be my
own preference. That is absolutely cor-
rect. I think it is a very dangerous
idea, especially dangerous to be using
these gadgets in the area of national
security.
Mr. BARTLETT. Mr. Chairman, my
question is, even as one determinant?
That is my question.
Mr. NEAL. If I could respond to the
gentleman, I would say that if we are
willing, as the gentleman from Texas
[Mr. BROOKS] pointed out in his testi-
mony, to start again using the rack or
the dunking stool, or some other item
of witchcraft, certainly those could be
useful in scaring people into admitting
guilt and so on.
If the gentleman would like to
broaden the arsenal of our tools that
we are going to use in this area. I
guess we could include polygraph with
those kinds of gadgets, but they are
about the same level of reliability.
Mr. BARTLETT. Reclaiming my
time, the gentleman does not believe
in what is explicitly provided for in
the bill, that is the use of polygraph in
national defense and national security
by the Government. Does the gentle-
man oppose that section of the bill,
and think it should be deleted?
Mr. NEAL. Yes, I believe that is a
dangerous procedure. I believe we will
endanger our national security by that
use.
Mr. BARTLETT. The gentleman be-
lieves it should be used in no case
whatsoever. Would the gentleman
then see this bill as the first step
toward prohibiting the use of poly-
graph in national security cases?
Mr. NEAL. Mr. Chairman, I would
hope so, because I think we run a
grave risk of endangering our national
security by relying on these gadgets
which are inherently inaccurate.
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield?
Mr. BARTLETT. I yield to the gen-
tleman from Florida.
Mr. YOUNG of Florida. Mr. Chair-
man, when the Walker spy case first
broke, I had the opportunity to in-
quire of the Chief of Naval Intelli-
gence, what he needed to effectively
do something to prevent Walker spy
cases from happening, he responded
by saying, "we need authority to poly-
graph those who seek access to classi-
fied information."
This is the Chief of Naval Intelli-
gence. The Secretary of the Navy
made basically the same statement as
did many others. These are the people
that have been given the responsibility
for our national security. They tell us
they have authority to polygraph.
If you don't trust them, than fire
them. But if you do trust them, at
least give them the tools they need to
meet their responsibility.
The CHAIRMAN. The time of the
gentleman from Texas [Mr. BARTLETr]
has expired.
(By unanimous consent, Mr. BART-
LL= was allowed to proceed for 1 addi-
tional minute.)
Mr. BARTLETT. Mr. Chairman,
what I want to say very clearly so that
everyone who is watching this debate
understands, is that the debate is be-
tween the proponents of H.R. 1212
who have written a bill that would
prohibit the use of polygraph in all
cases except for national security even
though national security would likely
be next, but just prohibit the use of
the polygraph as any kind of determi-
nant comparable to prohibiting the
use of reference checks because they
are not perfect, or personal interviews,
or written tests. That is one side of the
debate.
The other side of the debate, would
be the Darden-Young substitute that
would permit the use of the polygraph
under licensing but only if used as one
determinant, but prohibit the use of
the polygraph as the sole determinant.
Darden-Your g would correct what-
ever abuses tl 3 sponsors would pur-
port to have n the marketplace by
prohibiting th, use of the polygraph
as the sole determinant.
Mr. Chairman, I yield to the gentle-
man from North Carolina [Mr. NEAL].
0 1240
Mr. NEAL. l thank the gentleman
for yielding. I ould like to propose a
question to th- distinguished gentle-
man from Flori a.
The CHAIRNAN. The time of the
gentleman from Texas [Mr. BARTLETT)
has again expired.
(By unanimous consent, Mr. BART-
i.ETT was allowed to proceed for 1 add".
tional minute.)
Mr. BARTLETT. Mr. Chairman, I
continue to yield to the gentleman
from North Carolina.
Mr. NEAL. Mr. Chairman, when the
gentleman from Florida pointed out
the statement regarding this Govern-
ment official who thought that the
polygraph was the most valuable tool
at his disposal, or whatever that exact
quote was, was it his position that the
polygraph test was an accurate one, or
was it his position that it had utility
because some people believe that they
were accurate and he might be able to
scare someone into a confession or
something?
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CONGRESSIONAL RECORD- HOUSE November., 1987
Mr. YOUNG of Florida Mr. C`hair-
man, will the gentleman yield?
Mr. BARTLETI'. I yield to the gen-
tleman from Florida.
Mr. YOUNG of Florida. Mr. Chair-
man, I thank the gentleman for that
question. I would say again that none
of us are contending, even in the field
of national defense, and especial: yp in
the field of national defense, nor.e of
us are contending that the polygraph
is the ultimate tool- But it is a treaten-
dous tool in the overall process of
doing background research to deter-
mine whether or not access to the
most sensitive national defense secrets
of our Nation with be grante(L No. it is
not a single took We have made that
point time after time after time. It is
one of the tools, and it is a most effec-
tive tool in conjunction with the other
parts of the procedures that are zed.
To get security clearances on ? c ca-
sion takes a year or longer when get-
ting a person cleared for a parti4 . tar
type of classification, and the ;.) Ay-
graph does not take anywhere near a
yoar to perform, as the gentleman
knows.
The CHAIRMAN. The time of the
gentleman from Texas [Mr. BARTZi:Tr]
has again expired.
(On request of Mr. MARTTI? Z am by
unanimous consent, Mr. BAxrirrr as
allowed to proceed for I additi. -ial
minute.)
Mr. MARTINEL. Mr. Chairman, will
the gentleman yield?
Mr. BARTLETT. I am happy to
yield to the gentleman from Califor-
nia.
Mr. MARTINS2- Mr- Chairman. the
fact that the gentleman says it takes a
year or a year and a half to get clear-
ance on these high security matters in-
dicates that the Federal Government
at least in the use of these machines is
not relying on them.
The problem lies in that a private
employer often does rely totally on
that and does a very cursory investiga-
tion once he determines that the evi-
dence presented by this polygraph test
is valid, and he does assume that. it is
valid. They have testified over and
over again in the hearings that they
believe in the reliability of this poly-
graph machine.
The problem that nobody here has
talked about is that there is another
flaw in it. and that is the human flaw.
because these machines only read your
blood pressure, your temperature and
miscellaneous things like that, and
then that polygrapher, depending on
his training and his biases, is the de-
terminant of whether the gentleman
is lying or not, and that in many cases
has been proven, as is true in the case
of several court cases which have
taken place, not to be valid.
Mr. BARTLE'IT. Reclaiming my
time. I understand the gentleman's
point. Of course, what the bill does is
permit the use of the polygraph with-
out restriction in national security
cases. So if it is not accurate ft does
not provide for the sole determinant
standard. The Darden-Young bill pro-
vides for the sole determinant stand-
ard, prohibits a sole determinant use
of the polygraph. The Darden-Young
bill does it right.
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield?
Mr. BARTLETT. I yield to the gen-
tleman from Florida-
Mr. YOUNG of Florida. I thank the
gentleman for yielding. He has very
eloquently made the point I was going
to make. There is going to be the use
of the polygraph whether this bill
passes or not.
What we are trying to do is make
sure that the person conducting the
examination is professional, has been
licensed and knows what he is doing,
and that the person being examined
has legal protection of his personal
and civil rights.
Mr. WILLIAMS. Mr. Chairman, I
move to strike the last word. I am
going to use 30 seconds of my 5 min-
utes and plead with my colleagues not
to ask me to yield to them.
Mr. Chairman, the last time the bill
was on the floor of the House it took
us 6 hours to complete ft. We are now
debating specific points that we win
debate again when these amendments
come up and when the substitute is of-
fered. I just appeal to my colleagues to
wait until we get to the specific section
of the bill where the amendments can
be offered before we start a debate
that we are going to go over again
when we do reach that specific section,
which in most instances, for most of
the amendments, will be section 6.
We hope to be able to adjourn
around dinnertime, but if I recollect
how this debate proceeded a year ago,
it is moving considerably more slowly
now than it did then, and then it took
6 hours. So we want full debate and
that is the reason I requested a fully
open rule. But I encourage my col-
leagues to allow this process to move
ahead.
I yield back the balance of my time.
The CHAIRMAN. Are there any
amendments to section 2?
If not, the Clerk will designate sec-
tion 3.
The text of section 3 Is as follows:
SEC 3. N(TtTCE or Piuyrernos.
The Secretary of Labor shall prepare,
have printed, and distribute a notice that
employers are prohibited by this Act from
using a lie detector test on any employee or
prospective employee Each employer shall
poet and keep posted, in conspicuous places
upon its premises where notices to employ-
ees and prospective employees are custom-
arily posted, the notice distributed by the
Secretary under this section.
The CHAIRMAN. Are there any
amendments to section 3?
If not, the Clerk will designate sec-
tion 4.
The text of section 4 is as follows:
SEC. I. ?tTRORITT (W THE sacs .raRY oP La OR
(a) lht Onxit a .-The Secretary of Labor
shall-
(1) issue such rules and regulations as may
be necessary or appropriate for carrying out
this Act:
(21 cooperate with regional, State. local,
and other agencies, and cooperate with and
furnish technical assistance to employers,
labor organizations, and employment agen-
cies to aid in effectuating the purposes of
this Act: and
(3) make investigations and inspections
and require the keeping of records neces-
sary or appropriate for the administration.
of this Act.
(b) SUBYrxA AusxoatrY.-For the purpose
of any hearing or investigation under this
Act, the Secretary shall have the authority
contained mn sections 9 and 10 of the Feder-
al Trade Commission Art (15 U.S.C. 49, 50).
The CHAIRMAN. Are there any
amendments to section 4?
If not, the Clerk will designate sec-
tion 5.
The text of section 5 is as follows:
SE('. L ENPUNCEM&rr rROitsjON .
(a) Crest Pmur.TIES--(t) Subject to para-
graph (2)-
(A) any employer who violates section 3
may be assessed a civil money penalty riot to
exceed $100 for each day of the violation:
and
(B) any employer who violates any other
provision of this Act may be assessed a civil
penalty not to exceed $10,000.
(2) In determining the amount of any pen-
a" under paragraph (11. the Secretary
shad take into account the previous record
of the person in terms of compliance with
this Act and the gravity o6 the violation.
(3) Any civil penalty assessed under this
subsection shall be collected in the same
manner as is required by subsections (b)
through (e) of section 503 of the Migrant
and Seasonal Agric ltural Worker Protec-
tion Act (29 U.S.C 1853) with respect to
civil penalties assessed under subsection (a)
of such section.
(b) INJUNCTrva AcrroNS av THa Ssccaz-
raaY.-The Secretary may bring an action
to restrain violations of this Acs. The dis-
trict courts of the United States shall have
jurisdiction, for cause shown, to issue tern-
porary or permanent restraining orders and
injunctions to require compliance with this
Act.
(C) PaiVxa CrvmL Acriows.-41) An em-
ployer who violates the provwous of this
Act shall be liable to the employee or pro-
spective employee affected by such viola-
tion. An employer who violates the provi-
sions of this Act shalt be liable for such
legal or equitable relief as may be appropri-
ate, including (without limitation) employ-
ment. reinstatement, promotion, the pay-
ment of wages toed. and an additional
amount as consequential damages.
(2) An action to recover the liability pre-
scribed in paragraph (1) may be maintained
against the employer in any Federal or
State court of competent jurisdiction by any
one or more employees or prospective em-
ployees (or any person acting on behalf of
such employee or employees) for or in
behalf of himself or themselves and other
employees or prospective employees similar-
ly situated. No such civil action may be com-
menced more than 3 years after the date of
the alleged violation-
(3) The court shalt award to a prevailing
plaintiff in any action under this subsection
the reasonable costs of such action, inehrd-
tng attomeya' fee&
Mr. GUNDERSON. Mr. Chairman, I
move to strike the last word.
My. Chairman, I want to call to the
attention of my colleagues section 5 of
this bill. I do not have an amendment
at the present time and I do not
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November 4, 1987 CONGRESSIONAL RECORD - HOUSE
intend to offer one because I do not
think we ought to pursue along an ac-
rimonious debate over the penalty sec-
tion of this bill. I think the substance
of the bill is far more important.
But I want people to understand
what section 5 does here. It not only
imposes rather significant financial
penalties of up to $10,000 for any em-
ployer who violates the use of the test
when they are banned, but it also goes
so far as saying that once this legisla-
tion is passed that the Secretary of
Labor shall prepare, have printed and
distribute to every employer all over
this country a notice that says lie de-
tector tests cannot be required.
That is good, I have no problem with
the Secretary of Labor doing that.
What I have a problem with, and
what people ought to be aware of in
this legislation is the fact that subsec-
tion (a) of section 5 provides for a pen-
alty not to exceed $100 per day when-
ever that sign is not posted, from here
to eternity.
I do not know how many of my col-
leagues have ever worked in the pri-
vate sector. I am going to assume the
vast majority of us have. I think we
have all gone past those time clock
areas where you punch the time clock
and you see some notices and you do
not see some notices. I have to tell my
colleagues that as a youngster, in high
school and in college, I had jobs as a
janitor. I got to do the cleaning and all
of that, and as we would go through
and clean, and in particular when we
would prepare for special occasions at
the industry I was at, sometimes no-
tices that were all dilapidated, that
were outdated, that were faded, discol-
ored, we would throw all of that away,
clear the blackboard off so that we
could start a new set of notices on the
bulletin board.
I want my colleagues to know that
the legislation in front of us now is
going to require a $100 penalty, up to
$100 penalty a day for anyone who in-
nocently happens to have had some
employee, who is a young high school
janitor who accidentally, unintention-
ally, not knowingly, happened to pull
that notice down.
Mr. DARDEN. Mr. Chairman, will
the gentleman yield?
Mr. BARTLETT. I am happy to
yield to the gentleman from Georgia.
Mr. DARDEN. Mr. Chairman, I
thank the gentleman for yielding. I
would like to use this opportunity, Mr.
Chairman, to point out one distinction
here that I do not think has been
made very clear to the Members of
this body. The distinguished gentle-
man from North Carolina [Mr. NEAL],
kept on talking about how this bill
would somehow require a person to
give testimony against himself and ob-
viously violate the fifth amendment to
the Constitution of the United States,
which of course provides that no
person shall be compelled to testify
against himself.
It is important to note, Mr. Chair-
man, that most of the complaints we
have heard about the polygraph relate
to the specific conduct of law enforce-
ment agencies, whether or not a par-
ticular sheriff or a police agency or a
bureau of investigation has in fact
properly conducted a polygraph exam-
ination, or in many instances has the
scope of the examination gone too far,
or has the person conducting it for the
police actually been qualified.
I would like to point out to the
Members of the body, Mr. Chairman,
that the activities of police agencies,
whether it be State, Federal, or local
are absolutely exempt under this law.
So if we are worried about innocent
people somehow being forced into con-
fessing or in some way admitting guilt
or being found guilty by the use of a
polygraph, this bill does not do a bit of
good, because this bill excludes all ac-
tivities of any police force or any other
law enforcement agency.
So I would like for the body to keep
that in mind, Mr. Chairman, that we
are not really getting to the problem if
we are interested in police abuses and
a person having to violate the fifth
amendment. What we are doing here
is simply punishing the private sector
by saying you cannot do in the private
sector what you can do in the public
sector.
Mr. WILLIAMS. Mr. Chairman, will
the gentleman yield?
Mr. GUNDERSON. I am happy to
yield to the gentleman from Montana.
Mr. WILLIAMS. Mr. Chairman, I
want to note that the gentleman from
Wisconsin raises a good point, and
that is whether or not the penalties
that are assessed here, the civil penal-
ties, are too high, given the violations.
I would remind the House that they
are within keeping with other penal-
ties in similar types of legislation.
I would also tell the House that this
$10,000 fine is a maximum and that
the Act goes on to say that the Secre-
tary shall take into account the gravi-
ty of the violation.
Finally I would remind or ask the
House to recall that there was a recent
award against an employer, a drug
company in the United States, a
recent award against that company of
$4 million for violating the rights of
an employee to whom they gave a
polygraph examination.
The CHAIRMAN. The time of the
gentleman from Wisconsin [Mr. Gtm-
DERSON] has expired.
(By unanimous consent, Mr. Gtna-
DERSON was allowed to proceed for 30
additional seconds.)
Mr. GUNDERSON. Mr. Chairman, I
want to point out that the gentleman
from Montana and I really have no
dispute on the penalty section for the
violations of the use or the abuse of
the polygraph. My objection is the
fact that we are going to send this
signal in this legislation that we will
provide penalties of up to $100 per day
if there is not this little paper notice
hanging up in every employer's build-
ing around this country. That is exces-
sive, that is extreme, that is asking for
119549
trouble, and I think that section ought
not be in this bill.
Mr. LUNGREN. Mr. Chairman, I
move to strike the last word.
Mr. Chairman, I was intrigued while
sitting in my office listening to the
debate to hear some of the comments
of the proponents of the bill that do
not seem to me to match up with what
is in the bill itself.
The point has been made by some
who oppose this bill that even as we
speak there are instances in which em-
ployees are using lie detector tests in
order to take suspicion from them. Yet
if my colleagues read the language of
this bill, they would not be able to vol-
untarily do that. Why? Because it is
unlawful for any employer "to use,
accept, refer to, or inquire concerning
the results of any lie detector test of
any employee or prospective employ-
ee." So even if the employee requests
of his employer permission to take a
lie detector test so that that individual
might be able to have more evidence
that in fact, he or she, was not in-
volved in something that was not ap-
propriate, it would be a violation of
the law for the employer to accede to
the request of the employee to do.
that.
I do not understand why we are so
worried about this test that we would
even prohibit an employee from volun-
tarily taking it, and then allowing or
asking or requesting or imploring their
employer to look at it.
The other thing I would mention is
in this case we want to make sure we
really sock it to the employer. If you
look at the last three lines of section 5
you find this: "The court shall award
to a prevailing plaintiff in any action
under this subsection the reasonable
costs of such action, including attor-
neys' fees."
Note it does not say the court shall
award the "prevailing party". In other
words, a case, no matter how frivolous,
brought against an employer by the
employee that is determined to be friv-
olous will not allow that employer to
get back the costs incurred. That may
be a very expensive proposition when
we realize up in the previous subsec-
tion it says:
An action to recover the liability pre-
scribed in paragraph (1) may be maintained
against the employer in any Federal or
State court of competent jurisdiction by any
one or more employees or perspective em-
ployees (or any person acting on behalf of
such employee or employees) for or in
behalf of himself or themselves and other
employees or perspective employees in a
similar situation
In other words, it legitimizes class
action suits.
So we can have a situation in which
an employee brings a frivolous case on
behalf of other employees or other
members of a class before a court, go
through the whole case, all the way to
trial, and at that point in time when it
is tossed out the employer is left with
the large expenditure of funds, includ-
ing attorney fees, but does not get the
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CONGRESSIONAL RECORD HOUSE November 4, 1987
benefit of this section which says only
prevailing plaintiffs can be recom-
pensed.
^ 1255
Now I do not understand in this
House how we continually want to
make sure that we sock it to the em-
ployer even when the employer is
proven to be without fault. Continual-
ly we have bills brought to us here
that say, "By God, we are going to
sock it to you and we are going to put
the fear of God in you, so that even
though we don't have a good case
against you, we are going to punish
you nonetheless."
That does not make a great deal of
sense to me. It is a manifestation of a
prevailing attitude in this House that
seems to say the deep pockets of the
employer are so deep we can keep dig-
ging and digging and digging.
Why we have this bias against em-
ployers in this bill, I do not know.
"You shall award to the prevailing
plaintiff, only" but not to the prevail-
ing defendant.
The other factor I would like to dis-
cuss here is the question of whether or
not these lie detector tests have any
validity whatsoever.
We seem to just easily jump over the
fact that we have required them in de-
fense, in the intelligence community
and now in the foreign policy commu-
nity.
As a member of the Committee on
Intelligence. I can tell you that the in-
telligence community absolutely be-
lieves in the validity of these tests, not
as the sole determinant but as part of
an entire review of prospective em-
ployees. In fact, in the last number of
years that this Congress has been
most critical of the intelligence com-
munity for security lapses, one of the
problems cited has been the failure to
administer such tests to individuals
subsequently found to have skipped
out with State secrets.
The CHAIRMAN. The time of the
gentleman from California [Mr. LuN-
GREN] has expired.
(By unanimous consent, Mr. LuN-
GREN was allowed to proceed for 3 addi-
tional minutes.)
Mr. LUNGREN. So, in fact, as Mem-
bers have suggested in debate here,
there is a schizophrenic attitude evi-
dent on the floor today which says
that we can use, in fact we require to
be used, this tool as a pre-employment
practice or as an investigative tool
with the intelligence community of
the United States. This is because we
think that the national security inter-
ests of the United States are so impor-
tant. Yet the validity that is assumed
when we grant that authority and ob-
ligate those agencies to use it, is
thrown by the wayside when we dis-
cuss it here.
Now I have in my previous life as an
attorney had the opportunity to repre-
sent some security companies, that is,
those who provide security. And I will
tell you I am not satisfied in all cases
that the standards that presently
apply for those people who are al-
lowed to carry guns and have badges
on their shirts, rent-a-cops some
people call them, are as great as they
ought to be. But it seems to me non-
sensical for us to say that a security
firm that is going to put an amend-
ment, a loaded gun on the hip of its
employee to go out and supposedly
protect us, is not going to have the
ability to use this tool as part of an
overall approach to its employment
practices.
We allow these things to be done
with respect to our police depart-
ments. In fact, a Supreme Court case
found that a police officer accused of a
particular offense may be required to
take a lie detector test and his Job
would be in the balance if he failed to
do so. This was allowed even though
the Court would not allow that it be
required in a criminal setting.
I also do not understand why we say
here that the polygraph is not to be
used because it is a fallible instrument.
Every single one of us in this Chamber
is fallible. In fact, last Thursday we
found out how fallible our rules are in
this House. Yet I do not see anybody
here saying that we ought to close
down completely, not do the Nation's
business because we have imperfect
laws or imperfect rules. In fact, some
Members on that side have instructed
us that those rules are going to remain
imperfect and we should just accept it
because that is the cost of doing busi-
ness.
In a somewhat similar fashion, the
polygraph is not infallible. We should
recognize this. It can be used, it has
been used. We have criticized the in-
telligence community when they have
not used it. It seems to me to be the
height of hyprocisy to require it in our
"ballpark" but not to allow it in the
private sector.
Mr. NEAL. Mr. Chairman, will the
gentleman yield?
Mr. LUNGREN. I yield to the gen-
tleman from North Carolina.
The CHAIRMAN. The time of the
gentleman from California [Mr. LUN-
GREN] has again expired.
(On request of Mr. NEA and by
unanimous consent Mr. LUNCREN was
allowed to proceed for 2 additional
minutes.)
Mr. LUNGREN. I continue to yield
to the gentleman from North Caroli-
na.
Mr. NEAL. I thank the gentleman
for yielding.
Mr. Chairman, I recognize that the
gentleman from Florida and the gen-
tleman from California and others are
vitally interested in our national secu-
rity. What I do not understand is how
they would be willing to even begin to
trust such a fallible instrument. It is
not that these gadgets are accurate 95
percent of the time or 99 percent of
the time; the fact of the matter is that
they are no more accurate than the
flip of a coin.
Mr. LUNGREN. Reclaiming my
time, I would say to the gentleman I
have heard that cited. I will tell you
that is not the testimony you hear
from the intelligence community.
That is not the testimony you hear
from the people who have been part of
the CIA, the NSA and so forth, over
the last 25 years.
In fact, cri.icisms of those agencies
for security lapses have included criti-
cism that they did not use the lie de-
tector test when it should have been
used. And there has also been the
point that had it been used it is most
likely that the agencies would have
been able to stop certain people from
having the classes of information that
otherwise got into the hands of our
enemy.
Mr. NEAL Mr. Chairman, will the
gentleman yield again briefly?
Mr. LUNG'ZEN. I yield to the gen-
tleman iron North Carolina [Mr.
Neal].
Mr. NEAL. I thank the gentleman
for yielding.
Mr. Chairman, I would like to refer
the gentleman to some scientists, not
hearsay evidence but scientific evi-
dence. Here is a statement by Dr. John
Berry, assoc ate dean, Georgetown
University S hool of Medicine. He
calls his pap- - "The Nonexistence of
the Lie Deti :tor Test." He says he
wants to "make two important points
today." This was the testimony before
our Committee on Government Oper-
ations.
"Two important points about the
polygraph: First, no such machine as a
lie detector exists. There is no physio-
logical response unique to lying.
"I have to point out that the other
point he makes is that a lot of people
believe that there is such a thing as a
"lie detector" test so you can scare
some people.
The CHAIRMAN. The time of the
gentleman from California has again
expired.
(By unanimous consent, Mr. LUN-
GRErr was allowed to proceed for 2 addi-
tional minutes.)
Mr. LUNGREN. I will continue to
yield to the gentleman from North
Carolina [Mr. NEeL].
Mr. NEAL. I thank the gentleman
for yielding.
The author of the paper went on to
say that lying is only one of several
stimuli which may excite a person:
other stimuli which cause excitement
are fear of losing one's job, embarrass-
ment or anger at being examined, for
example. He, in answer to his own
question, "Does it work at all?", says
this: "It is a simple coin. It will be
right 50 percent of the time in a di-
chotomous situation that is a lie-
nonlie." The point he makes is that so
called "lie detection" test are no more
accurate than the flip of a coin.
So I say to my distinguished col-
leagues, the point is we are relying on
something that is inherently unreli-
able and to use this even as a part of
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November 4, 1987 CONGRESSIONAL RECORD - HOUSE
clearing someone for important na-
tional security considerations is dan-
gerous to our own security.
Mr. LUNGREN. I appreciate the
gentleman's remarks. I might say if
you would go back, say 10 years ago to
the time when Mr. Califano was Secre-
tary of HHS, I can cite you quotes
from Mr. Califano, when he said that
the CAT scanner was not an appropri-
ate diagnostic instrument and that we
were wasting money on it. Yet I know
people walking the streets today who
are alive because they used the CAT
scanner as a diagnostic tool.
Mr. NEAL. The gentleman is very
cleverly changing the subject. The
subject is polygraphs.
Mr. LUNGREN. Now, wait a second.
I would be glad to listen to the gentle-
man on his time but this is on my
time.
The point is I can cite you medical
authorities who will tell you that
bypass surgery should not have been
done in many cases 12 years ago. In
fact, my father is one of those, a board
certified internist and cardiologist. He
changed his mind about their applica-
bility after he had one. Thank God he
has been able to live for over a decade
after having such an operation.
I accept the gentleman's opinion as
his own, that doctor's. I will say this,
those in the intelligence community of
the United States, not giving an opin-
ion off the top of their head but giving
an opinion based on their experience
over some approximately 40 years
have told us it is an essential tool to
protect the national security interests
of the United States. They use them
in the emp' :yment practice, the
preemploymen practice techniques
and also inve ;tigations later on. I
would say that I would yield to their
ideas rather than to someone who is
giving us an opinion based on no prac-
tice.
The CHAIRMAN. The time of the
gentleman fro:r. California has again
expired.
(On request :)f Mr. NEAT. and by
unanimous con. ent, Mr. LUNGREN was
allowed to proceed for 1 additional
minute.)
Mr. NEAL. Mr. Chairman, will the
gentleman continue to yield?
Mr. LUNGREN. I yield to the gen-
tleman from North Carolina [Mr.
NEAT.].
Mr. NEAL. I thank the gentleman
once again for yielding.
Mr. Chairman, I would ask my dis-
tinguished colleague to bring to the
floor of the House of Representatives
some evidence, some scientific evi-
dence, not hear my, not my evidence,
not my opinion, not your opinion, but
bring us some evidence that these
gadgets are reliable. I certainly want
to keep an open mind on the subject. I
have riased this point throughout the
debate today and no one in opposition
to this bill has presented one scintilla
of evidence that these things are reli-
able.
Mr. LUNGREN. There is a differ-
ence between science and art but that
does not mean that art is witchcraft.
We talk about the art of medicine; we
do not talk about the science of medi-
cine in terms of diagnosing people.
We talk about the practice of medi-
cine; we do not talk about the perfec-
tion of medicine. Many of the tech-
niques. diagnostic as they are, that
doctors use today cannot be proven ab-
solutely scientifically but they are
proven in terms of practical effect. I
would suggest that the relationship
that the gentleman has presented be-
tween the scientific and witchcraft is a
non sequitur. In fact we are talking
about an art that has been proven.
The CHAIRMAN. Are there any
amendments to section 5?
If not, the Clerk will designate sec-
tion 6.
The text of section 6 is as follows:
SEC. 6. EXEMPTIONS.
(a) No APPLICATION TO GOCERNMFNTAL EM-
PLOYERs.-The provisions of this Act shall
not apply with respect to the United States
Government, a State or local government,
or any political subdivision of a State or
local government.
(b) NATIONAL DEFENSE AND SECURITY EX-
EMPTION.-(l) Nothing in this Act shall be
construed to prohibit the administration, in
the performance of any counterintelligence
function, of any lie detector test to-
(A) any expert or consultant under con-
tract to the Department of Defense or any
employee of any contractor of such depart-
ment; or
(B) any expert or consultant under con-
tact with the Department of Energy in con-
nection with the atomic energy defense ac-
tivities of such department or any employee
of any contractor of such department in
connection with such activities.
(2) Nothing in this Act shall be construed
to prohibit the administration, in the per-
formance of any Intelligence or counterin-
telligence function, of any lie detector test
to-
(A)(i) any individual employed by, or as-
signed or detailed to, the National Security
Agency or the Central Intelligence Agency,
(ii) any exert or consultant under contract
to the National Security Agency or the Cen-
tral Intelligence Agency, (iii) any employee
of a contractor of the National Security
Agency or the Central intelligence Agency,
or (ir) any individual apply- ing for a posi-
tion in the National Security Agency or the
Central Intelligence Agency; or
(B) any individual assigned to a space
where sensitive cryptologic information is
produced, processed, or stored for the Na-
tional Security Agency or the Central Intel-
ligence Agency.
(C) EXEMPTION TOR FBI CONTP.ACTORS.-
Nothing in this Act shall be construed to
prohibit the administration. in the perform-
ance of any counterintelligence function, of
any lie detector test to an employee of a
contractor of the Federal Bureau of Investi-
gation of the Department of Justice who is
engaged in the performance of any work
under the contract with such Bureau.
AMENDMENT OFFERED BY MR. YOUNG OF
FLORIDA
Mr. YOUNG of Florida. Mr. Chair-
man, I offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Yot?NC of
Florida Pape S. after line 13. insert the fol-
lowing new subsection:
H 9551
(d) NURSING HOME Exssarnox.-This Act
shall not prohibit the use of a lie detector
test by an employer on any employee or
prospective employee of any nursing home
facility. This subsection shall not preempt
or supercede any State or local law which
prohibits or restricts the use of lie detector
tests.
Mr. YOUNG of Florida. Mr. Chair-
man, this amendment comes at an ap-
propriate place in the bill. Section 6 is
entitled National Defense and Securi-
ty Exemptions. In 1985, when we had
the Armed Services authorization bill
before the House, the House of Repre-
sentatives approved by a vote of 333 to
71 an amendment offered by this
Member to establish a polygraph pro-
gram for those in the Defense Depart-
ment seeking classified clearances.
That 2-year test program worked so
well that in 1987 we offered the
amendment to provide a permanent
program for the national Department
of Defense. That permanent program
was approved by this House 345 to
only 44 against.
And as was discussed earlier today,
the House this year voted 414 to zero
for an amendment to the State De-
partment authorization bill to require
the use of polygraphs in screening em-
bassy security personnel.
So obviously the House of Repre-
sentatives believes there is need for
the use of polygraph.
I made this point earlier and I want
to say it again briefly: If this bill be-
comes law the way it is presently writ-
ten or if it is to be amended several
times or no times, there is still going
to be the use of the polygraph because
the bill presented by the gentleman
from Montana allows the use of poly-
graph by the Federal Government,
State governments, county govern-
ments, and local governments and po-
litical subdivisions thereof.
Just for example back home in Flori-
da where we used to have mosquito
problems, we used to have what we
called mosquito control boards. Now
under this bill you use the polygraph
when someone applies for a job on the
mosquito control board to drive a
truck between the hours of midnight
and 4 o'clock in the morning spraying
swampy areas and drainage ditches.
Under this bill you could use the poly-
graph in that case but you could not
use the polygraph to screen someone
who would deal with America's elderly
because under this bill, you cannot use
the polygraph to screen an employee
who is seeking employment to serve
America's elderly in nursing homes.
In fact, I thought when the bill
came out that it might do that, be-
cause last year in this debate, along
with a number of other exemptions
that the chairman accepted, he accept-
ed my amendment to exempt nursing
homes from this prohibition because
he felt-and I am sure most of us in
the Chamber felt-that if anyone
needs our protection it is those elderly
in nursing homes who cannot take
care of themselves, who are bedridden,
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11 9';352 CONGRESSIONAL RECORD - HOUSE ~`'ocember 1 ,7i
who have no family, in many cases, to aiding and helping the elderly and test to the fellow that raises the flag
children in day'are centers and other in the morning outside the nursing
Mr. look after them. ~IChairman, I digress just a places. home and takes it down at night. We
moment here: Here are three volumes I hate to think that we have to would also be strapping in the secre-
of hearings conducted by Select Com- worry every time we send a child to tary that works in the front office and
mittee on Aging of the House of Rep- school or to preschool or anytime we provides only indirect service to any of
resentatives dealing with abuse of the put one of our elderly parents or rela- those elderly citizens in the nursing
elderly and to a great extent in nurs- tives in a day care home. I hate to home. The groundskeeper who is out
ing homes. think that we have to worry about all there cutting the lawn and trying to
the perverts that are working there keep the place looking nice fc r those
^ 1310 and all the perverts that want to apply senior citizens and the people visiting
These reports also deal with the for jobs there. It goes back to what them would have to undergo a lie de-
rights of America's institutionalized one of my colleagues said. You are in- tector test under this amendment.
aged lodged in confinement, and elder nocent until you are proven guilty, but Do we want to keep our senior citi-
abuse. Throughout these hearings we this assumes you are guilty before you zens safe in the nursing homes in this
are told how elderly people in nursing are proven innocent. That is offensive. country? Absolutely. Of course we do.
homes have been abused and over- I do not see that there is anything And that may mean that we ought to
drugged to keep them under control so wrong in requiring employers to do a raise the minimum wage in America,
they did not make a lot of demands. diligent job if investigating the back- because, as the gentleman from Flori-
We hear of soiled bed clothes not grounds of the individuals who are ap- da has noted, one of the reasons, in his
changed because someone did not plying, looking at their credentials and opinion, that we get less then perhaps
want to do it, and of theft from elderly histories and seeing what they are and excellent employees in nursing homes
persons in the nursing homes. who they are. I am sure that in the is because we do not pay them Inough.
One of the problems in nursing multitude of people working out there We will see how the gentleman and his
homes is that people who work there in those industries there is no reason colleagues rote when the r :: imc his
do not get paid enough money, and to be alarmed. I resent the inference wage gul comes up perhaps r t year. n
many of them do not stay on the job that all of those people need to be po- Yes, we need good person:.+ t year.
very long. They are very transient; lygraphed. thee, igood wages and good
they come and they go, and it is very Mr. Chairman, I also resent the in- t4ces, including n in the nursing hgood
difficult to keep track of their previ- ference that America is going to hell ni a screening nursing. homes.
we just
ous employment records. in a hand basket if we do not allow the need maintain that makes . Bot employee
So nursing homes and nursing home polygraph to be used. every prospective to make employe- e l the
managements have turned to another Mr. WILLIAMS. Mr. Chairman. I and andse homes in the plo Unitec of the
tool. Little by little they are using the move to strike the last word, and I rise nursing e
demeaning test is wrong.
polygraph to screen prospective em- in opposition to the amendment. undergo
Mr. BARTLETT. Mr. Chaim wr will
ployees. those who are going to deal Mr. Chairman, it is true that this gentleman eld?
with the elderly, those who in the wee bill does not prevent the public sector, the r. g tlemanMS. Iyield to the gen-
patient of the night have access to that that is, law enforcement officers, the M
r. from
patient strapped down to that bed. FBI, the National Security Council, telman
Mr BARTLETT. Mr. Chairman. I
those who in the wee hours of the and all the rest, from using the poly-
night have access to those people's be- graph. They use the lie detector tinder thank the
Chairman, for yielding a lot of
longings. very restrained and highly regulated
Mr. Chairman, we owe those in nurs- circumstances. This bill does not have debate no doubt on this, but I do want
ing homes the protection of this Con- jurisdiction over that matter and does to be sure to clarify and give the gen-
gress and of this law, and I say again not affect it. tleman a chance to clarify his state-
there is going to be the polygraph in But I remind my colleagues again ment as to what the amendment says.
America whether the Williams bill that our local police agencies, the FBI, I have a copy of it if the gentleman
passes or not. The Williams bill pro- the National Security Council, the has not been provided one.
vides for the polygraph in certain CIA. and the other public agencies The amendment does not provide
cases. But it is at least necessary that througout the United States adminis- that every employee or any employee
we accept this amendment to create ter only 2 percent of the lie detector of any nursing home will be subjected
an exemption for nursing homes so tests given in the United States. What to a polygraph test. The amendment
that those people who are serving we are trying to do here is restrain the merely says that this act shall not pro-
America's elderly might be checked vast bulk of the quick, easy. simple, in- hibit the use of the polygraph by an
out before they do serious harm to one expensive, unreliable tests that are employer of employees at a nursing
of our elderly mothers or grandmoth- given in the United States. home. The amendment does not man-
ers or fathers or grandfathers. Yes, we accepted this amendment date the employers to do any more or
Let us look after them. As I said, the the last time. We accepted it at almost any less than they are doing now.
subcommittee chairman accepted this midnight after 6 or 7 hours of debate. It goes on to say that this subsection
amendment last year. I had hoped We felt that the Senate would not is not going to preempt any State law
that he would accept it again this take this bill with that amendment in which in most States places rather
year. it or would strip that amendment. I stringent standards and in most States
Mr. MARTINEZ. Mr. Chairman. I guess we were correct about the prohibits the use of the polygraph as
rise in opposition to the amendment, former. The Senate did not take the the sole determinant.
and I will not take the full 5 minutes bill. It was a mistake on our part to this So when amendment the gentleman rtoad aslthat
em-
allotted to me because I do not think accept this amendment.
it is necessary. I ask my colleagues, have they read ployees of nursing homes will be re-
It really offends me to think that the amendment? It says that any em- quired to take a polygraph test, I just
there are people who assume that ployee or prospective employee of a want to bring to the gentleman's at-
every pervert in the world wants to nursing home facility has to undergo a tention the fact that that is not true.
work in this industry, and that all of lie detector test. I wonder how many This amendment provides that this act
those people who are working out people that is in the United States- will not prohibit the use of the poly-
there very diligently and conscien- prospective employees of nursing graph, but it does not require it for
tiously should be polygraphed in order homes. It means that not only would anybody.
to prove that they are conscientious we be strapping in and plugging in the Mr. WILLIAMS. Mr. Chairman, re-
and diligent, and yet there are people doctors, the nurses, and the specialists claiming my time, I appreciate the
who are looking to work in these pro- that work in nursing homes, but we gentleman's explanation. He is, of
fessions because of their dedication to would also be giving the lie detector course, correct. I did not mean to and I
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November 4, 1987
CONGRESSIONAL RECORD - HOUSE H 9553
believe that I did not misrepresent the
amendment. This simply allows nurs-
ing home owners to polygraph any em-
ployee or any prospective employee,
from the groundskeeper to the flag
raiser.
Mr. LUNGREN. Mr. Chairman, I
move to strike the requisite number of
words, and I rise in support of the
amendment.
Mr. Chairman, a lot of times here we
talk in the ephemeral world. We talk
in legalities, and we do not talk about
what actually happens in the real
world. We forget, on the one hand.
that we have in the past, and State
legislatures have in the past, enacted
precisely legislation which does not
allow certain information to come out.
Yes, you can in some cases get con-
viction records if those conviction
records have not been sealed, but you
cannot get arrest records. And as
many of us know, in many situations
around the country, because of the
overcrowding of our court system. of-
tentimes a plea bargain will take place
to an offense that is a lesser offense or
to an offense that may be only tangen-
tially involved with the facts of the
crime committed.
So in some cases we may have some-
one whose actions gave rise to a crime
which would bring some cause to have
alarm about having that individual
taking care of the elderly. Yet there is
no way the employer can check on
that.
When the Subcommittee on Health
and Long-Term Care of the Select
Committee on Aging held hearings on
the rights of America's institutional-
ized aged, they heard testimony from
one of the representatives from Cali-
fornia, the executive director of the
Commission on California State Gov-
ernment Organization and Economy,
that has gone in and looked at the
level of care of the institutionalized el-
derly. He indicated that although
under California law the applicant,
that is, the person whose actual name
would be on the license for the com-
munity care facility is screened for
past criminal record, there is-and
these are his words-"no way of know-
ing whether his employees have a
criminal record. We received testimo-
ny on various cases in which employ-
ees with criminal records raped, beat,
and abandoned residents."
That is what we are talking about
here. We are not talking about the guy
who is raising the flag in the morning
and has no connection with the pa-
tients involved. We are talking about
prospective employees with criminal
records who would rape, beat, and
abandon residents. These are the el-
derly in our community care facilities.
That is pretty serious. That ought to
be something that we are concerned
about in this House. So when we talk
about this amendment, let us talk
about the practical. Let us talk about
an 80-year-old woman who is bedrid-
den, who is being treated in one of
these facilities, and who is at the
mercy of the employees there. And so
I ask, should we say to her after she
has been beaten or raped, "Well,
maybe if we had had a little bit better
information about that person, we
wouldn't have hired him. But, you
know, we had to make sure that
person didn't suffer the indignity of
having to take a lie detector test as
part of the entire screening; nonethe-
less we will make sure that that
person is not employed tomorrow to
rape or to beat you."
This is the real world. We are not
making these things up. This is from
the testimony of people who have
looked at what has happened in my
home State of California.
Mr. Chairman, I would suggest that
we ought to be concerned about that.
Mr. LAGOMARSINO. Mr. Chair-
man, will the gentleman yield?
Mr. LUNGREN. I yield to the gen-
tleman from California.
Mr. LAGOMARSINO. Mr. Chair-
man, I thank the gentleman for yield-
ing.
What the gentleman says is very ac-
curate and very true. It is something
we should consider very carefully. It is
not just a possibility.
Just yesterday, I believe it was, a
man pleaded guilty to killing 13
people, and they think there were
many more, in a hospital. This is a not
unsimilar situation.
Mr. Chairman, this is something we
do owe to our people. Why should we
say that the secrets of the Defense De-
partment are more sacred than the
lives and well-being of our elderly citi-
zens?
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield?
Mr. LUNGREN. I am happy to yield
to the author of this amendment.
Mr. YOUNG of Florida. Mr. Chair-
man, I thank the gentleman from Cali-
fornia for his contribution. He has
made some very, very strong and per-
suasive points here. In support of that,
let me just hold up these relatively im-
portant copies of newspaper stories
telling how previous employers are not
responding to requests for information
about employees that might have
worked for them because if they give a
bad recommendation, they are getting
sued. In some cases they are getting
sued if they give a good recommenda-
tion.
They are just buttoning up in many
cases, and it is getting more difficult
all the time to learn something about
an applicant from a previous employ-
er.
Mr. LUNGREN. Mr. Chairman, I
thank the gentleman for offering his
amendment, and I hope we will have a
unanimous vote in favor of this
amendment.
Mr. DARDEN. Mr. Chairman. I
move to strike the requisite number of
words.
Mr. Chairman, I rise in strong sup-
port of the amendment offered by the
gentleman from Florida [Mr. YOUNG],
and I want to commend him for realiz-
ing that here we have a very obvious
flaw in the Williams bill that must be
addressed and that I think certainly is
addressed by this amendment.
I think it is interesting to note, Mr.
Chairman, that if this House of Repre-
sentatives has gone on record for any
one thing or any one subject or any
one topic, it has been taking action to
better the lot and the lives of our el-
derly people in this country. I think to
take away, as this bill would do, the
right to see that those persons who
care for and administer care to our el-
derly are not properly investigated
wouid indeed be setting a bad, bad
precedent here on the floor of the
House of Representatives.
^ 1325
Further example of how unfair the
situation has become, Mr. Chairman,
under the bill as it now stands, a
person who is charged, a young person
who is charged with stealing $3.50
worth of candy from a store can be po-
lygraphed by the police; but at the
same time a person who may have a
serious record of convictions, and the
amount of convictions may not have
been divulged, cannot be polygraphed
by the owners of a nursing home.
It is important to note that, let us
not take away this valuable investiga-
tive tool which should be used in con-
junction with, not solely for the pur-
pose of determining suitability for a
particular job, but in conjunction with
all other evidence to screen out these
people who might not be employable.
I was gratified last year when the
committee accepted this amendment,
but now it appears to be an opposite
situation here today.
Mr. MARTINEZ. Mr. Chairman, will
the gentleman yield?
Mr. DARDEN. I yield to the gentle-
man from California.
Mr. MARTINEZ. Mr. Chairman, I
thank the gentleman for yielding to
me.
I want to refer to the point the gen-
tleman makes on the validity of a lie-
detector test, because it is given by a
police department and not used in evi-
dence.
A court of law does not recognize it,
because the polygraph is recognized as
invalid. They cannot use it in evidence.
If the police are using it, they are
using it as a supplement, and that re-
quires them to dig up the hard evi-
dence, and more than just that poly-
graph test.
I think the argument is the kind of
an argument that confuses us into
giving credibility to the use of a lie de-
tector test in the private workplace.
Mr. DARDEN. The police can, under
this bill, continue to use a polygraph
unfettered as they have in many years
throughout this country.
What it does prohibit as it stands
now is the right of a person who may
go to work in a nursing home to care
for our elderly, they cannot have that
type of background check.
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H 9'554 CONGRESSIONAL RECORD - HOUSE November 4, 1987
Mr. LUNGREN. Mr. Chairman, will plicants for the Capitol Police Force, gress. Is that what the gentleman is
the gentleman yield? to check the info that is on their ap- saying?
Mr. DARDEN. I yield to the gentle- plications, not for investigative work Mr. WALKER. I would say to the
man from California. of criminals. gentleman. I think it is probably more
Mr. LUNGREN. Mr. Chairman, I We allow our Capitol Police to important to have that particular abil-
thank the gentleman for yielding. screen all their applicants about the ity rather than for ourselves.
The police departments use the lie information that is on their applica- Maybe those people who are lying
detector tests in precisely the same tions. helpless in nursing homes deserve
way we are asking under this amend- Mr. WILLIAMS. Mr. Chairman, will more protection than what we deserve
ment that employers, in taking care of the gentleman yield? in the U.S. Congress, and so the gen-
the elderly. use it, that is, in employ- Mr. WALKER. I yield to the gentle- tleman is absolutely correct, and that
ment situations. man from Montana. is the point I am making.
That is where the police use it today, Mr. WILLIAMS. Mr. Chairman, I If the technique is good enough, if it
and the Supreme Court has said that thank the gentleman for yielding. is good enough for elderly Americans.
they can use it. They can use it for My question is, do we allow the Cap- it is good enough for employers all the
employment circumstances. itol Police, or any other police depart- way across this country.
We are not talking about using it for ment, to use the lie detector test to I find it very, very disturbing that
criminal circumstances here. We are screen prospective employees of nurs- day after day, week after week we are
talking about using it for employment ing homes or banks or anywhere else? saying we are somehow better than
circumstances. That is what this amendment allows, the rest of America.
Mr. DARDEN. Mr. Chairman. I nursing homes, so I was not wrong. Mr. WILLIAMS. Mr. Chairman, will
thank the gentleman for making that Mr. WALKER. No, we are allowing the gentleman yield?
point. the Capitol Police Force, in terms of Mr. WALKER. I yield to the gentle-
We are contending that the poly- the people that apply to work at the man from Montana.
graph ought to be used in evidence, Capitol Police Force, to use lie detec- Mr. WILLIAMS. Mr. Chairman, I
even though it might be permitted to tor tests to screen those applicants, ex- thank the gentleman for yielding to
be used in evidence by stipulation in actly what the gentleman from Flori- me.
some States. da wants to do in terms of nursing Does the gentleman know in this
We are making the point that once homes, screening their own applicants. matter of the House being duplicitous
more the polygraph should by used as It is exactly the same. here on Capitol Hill, does the gentle-
a police offi- owners What we now have is a standard man know whether or not the Capitol
the same homes tool
of nc. Just as Pol which says that to protect ourselves, Police give lie detector tests to that
cers can ng homesn use it. we will have one standard. To protect fellow that raises the flag and to those
It is a valuable investigative tool the elderly of America. we will have secretaries that work in the office of
the which should
poss ible dle not benefit t tot the n away elderly. from another standard. the gentleman from Pennsylvania. be-
Mr. WILLIAMS. Mr. Chairman, will That is an abomination. Once again, cause this amendment allows nursing
the gentleman yield? we have legislation on the floor that home owners, not public officials, to
Mr. DARDEN. I yield to the gentle- says we are somehow above the law, give the lie detector test to people ap-
man from Montana. that this particular body of men and plying for a job to cut lawn outside
Mr. WILLIAMS. Mr. Chairman, I women is better than the law, that the nursing home?
thank the gentleman for yielding. what we are going to take away from Mr. WALKER. The gentleman's bill
Who ought to investigate crime? private industry, we are not willing to exempts all government employees, so
This bill says if the police departments take away from ourselves, because it is my understanding, and in the
want to investigate crime and want to there is nothing in this bill that takes same way that the gentleman's
use, the lie detector to investigate away from our ability to use lie detec- amendment allows the nursing home
crime, let them do it; but what some of tors to screen the people that protect operators to behave, we are allowed to
the Members on the floor seem to us?
want is to allow private industry to I cannot understand it. Why is it day If we wanted to test the people who
become police departments, and not after day, week after week we are raised the flag in the morning, we
only that, but they want to allow pri- bringing bills to the floor that say we could under the gentleman's bill; but
vate industry to use the gadget in a are better than the rest of the Ameri- ing under home theoegentleman's snbill, ot haee nurs-
way way we do not allow law enforcement can people?
to use it; and that is, for preemploy- I would think it would get to be an option.
ment, for people who never committed embarrassment after a while. To find The gentleman from Florida is
a crime. out the gentleman from Florida wants saying that your bill ought to give the
The Members would allow the to protect the elderly of America, and nursing homes that option.
owners of nursing homes to require a we say no, you cannot do that. When Mr. BARTLETT. Mr. Chairman, will
secretary seeking a job in a nursing it comes to protecting ourselves, we the gentleman yield?
home to be sat down, strapped in and are going to have the best equipment Mr. WALKER. I yield to the gentle-
plugged in. We do not let the law-en- in our arsenal to do so. man from Texas.
forcement agencies in this country do Mr. YOUNG of Florida. Mr. Chair- Mr. BARTLETT. Mr. Chairman. I
that. That is a far broader situation man, will the gentleman yield? thank the gentleman for yielding to
that the gentleman wants to create. Mr. WALKER. I yield to the gentle- me.
Mr. WALKER. Mr. Chairman, I man from Florida. We need to get back to what the bill
move to strike the requisite number of Mr. YOUNG of Florida. Mr. Chair- says, and I propound the question to
words. man. I thank the gentleman for yield- the sponsor of the bill, or any of the
I rise in support of the amendment, Ing to me. sponsors including the gentleman
and I would say to the gentleman from I want to make sure I understand from Montana.
Montana that what the gentleman the gentleman's point. If it is proper The CHAIRMAN. The time of the
just said Is wrong with regard to what to use a polygraph examination to gentleman from Pennsylvania (Mr.
we do in this body. screen those who protect Members of WALKER) has expired.
Just a few moments ago the staff the U.S. Congress, then it should be (On request of Mr. BARTtarr, and by
checked with the Capitol Police, and proper to use that same process, that unanimous consent, Mr. WALKER was
guess what. For the protection of our- same quote gadget unquote to protect allowed to proceed for 3 additional
selves around here, we allow the Cap.. elderly people lying in nursing homes minutes.)
itol Police to have two full-time exam- who cannot take care of themselves The CHAIRMAN. The Chair will
iners who do nothing but screen all ap- nearly as well as we can here In Con- offer the explanation that in accord-
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ante with the precedents, the Chair
will recognize members of the commit-
tee, first priority, and then those non-
members in accordance with seniority.
I thought that explanation would be
in order to understand the recognition
by the Chair of diverse Members who
have sought recognition.
Mr. WALKER. We thank the Chair.
Mr. Chairman, I yield further to the
gentleman from Texas [Mr. BART-
LETT].
Mr. BARTLETT. Mr. Chairman, I
thank the gentleman for yielding to
me.
I would propound the question to
the sponsors of the legislation.
Would they then accept an amend-
ment to permit nursing-home opera-
tors to use the polygraph as one deter-
minant in hiring those employees that
deal directly with the elderly in a way
in which it is an occupation?
If that is an amendment that is ac-
ceptable, then perhaps the sponsor of
the bill should accept the amendment
with that change in it, and we could go
on to the next amendment.
Mr. WILLIAMS. Mr. Chairman, will
the gentleman yield?
Mr. WALKER. Mr. Chairman. I
would be glad to yield to the gentle-
man from Montana to see if the gen-
tleman wants to have that reasonable
amendment added to the bill.
Mr. WILLIAMS. Mr. Chairman, I
thank the gentleman for yielding to
me.
The sponsor of the bill believes that
one cannot cure baldness through the
application of electricity, just as one
believes that a box plugged into a wall
cannot determine through the applica-
tion of electricity whether the person
is telling a truth or a lie.
The sponsor of the bill is opposed to
the use of the lie detector gadget.
Mr. WALKER. Let me say to the
sponsor of the bill, what the gentle-
man is saying is, it is perfectly all right
when it comes to protecting the gen-
tleman, when the Capitol Police use it
to protect him, and the gentleman's
bill in now way says we are going to
take that power away from the Cap-
itol Police when it comes to protecting
the gentleman?
Mr. BARTLETT. Mr. Chairman, will
the gentleman yield?
Mr. WALKER. I yield to the gentle-
man from Texas.
Mr. BARTLETT. Mr. Chairman, I
thank the gentleman for yielding.
I further inquire as to whether or
not the sponsor would accept an
amendment to unexempt Congress
from this bill.
Mr. WILLIAMS. Mr. Chairman, if
the gentleman will continue to yield,
the sponsor of this bill will cosign a
bill introduced by the gentleman from
Texas to take away from the Capitol
Police the use of the lie detector
gadget.
Will the gentleman offer that?
Mr. BARTLETT. It would not be a
bill; it. would be an amendment to this
bill.
Mr. WILLIAMS. My bill would have
jurisdiction over this. If the gentleman
can offer this amendmennt to strip
the use of the lie detector from the
Capitol Police, his gentleman will sup-
port it; and I will tell the gentleman
why.
Spies and terrorists, people intent on
doing the Members any bodily harm
can go through a lie detector like
water through a sieve.
If we are depending on the lie detec-
tor to protect ourselves, we are in a lot
of trouble.
Mr. BARTLETT. Mr. Chairman, if
the gentleman will continue to yield,
the sponsor of the bill is being
straightforward and honest then.
The gentleman wants to prohibit
polygraphs in all cases. The House will
consider an amendment to remove the
congressional exemption from this
bill.
Mr. WALKER. Mr. Chairman, re-
claiming my time, we also do lie detec-
tor tests of the people who work on
our intelligence committees, for exam-
ple.
It goes much further than that
when we are relying on protecting the
intelligence of this country, using the
employees of this body, and we use lie
detectors there too.
The gentleman thinks they are some
sort of a witchcraft, but we do depend
upon them.
The CHAIRMAN. The time of the
gentleman from Pennsylvania [Mr.
WALKER] has again expired.
(On request of Mr. YOUNG of Florida,
and by unanimous consent, Mr.
WALKER was allowed to proceed for 3
additional minutes.)
Mr. KASICH. Mr. Chairman, will
the gentleman yield?
Mr. WALKER. I yield to the gentle-
man from Ohio.
Mr. KASICH. Mr. Chairman, I
thank the gentleman for yielding to
me.
The Stillwell Commission, the group
that studied the problems with securi-
ty leaks throughout this country,
pointed out the problem with poly-
graphs is not the fact that people can
avoid them.
The problem is that they are not ad-
ministered in a way that does not tip
somebody off as to when those tests
are going to be administered: and in
fact, if you study the whole Walker
situation, the senior Walker told his
son, "Don't get yourself in a position
where you are ever going to be poly-
graphed, because that is how you are
going to get discovered."
Using a polygraph in national securi-
ty is a very valuable tool in terms of
H 9555
0 1340
Mr. WALKER. Mr. Chairman, I
thank the gentleman.
Let me yield to the gentleman from
Florida.
Mr. YOUNG of Florida. Mr. Chair-
man, I thank the gentleman for yield-
ing.
An important point has been raised
relative to who believes the polygraph
works or does not work.
This latest conversation prompts me
to read this statement from Christo-
pher Boyce. Christopher Boyce ap-
pearing before the Senate Committee
on Governmental Affairs made this
statement. Christopher Boyce is very
infamous in that while he worked for
one of our defense contactors, he sold
out to the KGB and provided them
with some very strategic information
that harmed us considerably.
Christopher Boyce said that the
KGB officer who was his charge told
him that they had ways to beat the
polygraph. Christopher Boyce said to
the Senate:
I knew I could not pass the polygraph and
greatly feared It. That same fear heightened
my resolve never to accept direct employ-
ment with the CIA because they require a
polygraph.
Now, Christopher Boyce, I think,
should be paid attention to because he
has cost us a lot of money and he has
given the Soviets some very important
strategic information that belonged to
us, that we developed. Unfortunately
we are getting away from the amend-
ment at hand. The subject before us
now is are we going to give elderly
people in nursing homes the protec-
tion of having an opportunity to
screen prospective employees who are
going to be tending them in the wee
hours. That is the issue. Are we going
to do that or not?
Unfortunately we have allowed the
debate to move in the wrong direction.
The proponents of this bill are trying
to create the illusion that we are going
to polygraph, that we want to poly-
graph everyone who applies for a job
anywhere in the world. That is not the
case, not the case at all.
First of all, to conduct a polygraph
examination takes time.
No. 2, it is extremely costly and if
you think that all these industries just
want to indiscriminately use poly-
graphs. you are wrong, but it is a very
good tool and the existence of the pro-
gram itself will be very helpful.
But let us not allow this debate to
move off in 20 directions. This debate,
this moment, is whether or not we are
going to give protection to the elderly
people in America's nursing homes.
I thank the gentleman for yielding.
trying to prevent this kind of thing The CHAIRMAN. The time of the
from happening. They are recom- gentleman from Pennsylvania has
mending more use of the polygraph, again expired.
not less, when it comes to national se- (By unanimous consent, Mr. WALKER
curity. was allowed to proceed for 2 additional
That point ought. not to be missed minutes.)
when we are looking at something as Mr. WALKER. Mr. Chairman, k t
sensitive as this. me say to the gentleman, and I will
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H 95-56
CONGRESSIONAL RECORD - HOUSE
yield to the gentleman in a moment, In 1984, the Department of Defense
but let me say to the gentleman that I called for a study to be done of the
think it is important that we refocus number of studies in the United States
the debate on his amendment. that have been done on the accuracy
What this gentleman is saying is we of the polygraph. I would just like to
ought to do unto others, namely, the cite a few of them.
elderly, what we willingly do unto our-
selves. namely, we allow our Capitol
Police to administer lie detector tests
when it comes to protecting us. They
do it on the basis of job applications.
That is the same standard of protec-
tion that we ought to allow to the el-
derly of this country.
Mr. NEAL. Mr. Chairman, will the
gentleman yield?
Mr. WALKER. I am very glad to
yield to the gentleman from North
Carolina.
Mr. NEAL. Mr. Chairman. I thank
the gentleman for yielding.
I agree with the gentleman that we
ought to be on this subject, but the
gentleman from Florida made a very
important point. The gentleman from
Florida said that the spy that he
quoted was afraid of the polygraph.
That is precisely the point.
The point is that the polygraph tests
do not work. They are not lie detector
tests. They are unreliable, no more ac-
curate than the flip of a coin, but
there are people who are afraid of
them. There are some people out
there who believe that they work and
in those cases when there are people
who believe that they work, the threat
of a polygraph can elicit a desired re-
sponse; but as more and more people
learn that they do not work, they will
be become less and less effective.
This is the most important point,
since they are unreliable and many
people do it, the most dangerous
people, the people who would be most
dangerous to our national security or
to our'elderly or to us here, the terror-
ists and so on, know how to beat them.
There are mental techniques, drugs,
and other ways to beat the polygraph.
Mr. DELAY. Mr. Chairman. will the
gentleman yield?
Mr. WALKER. Let me regain my
time and yield to the gentleman from
Texas.
Mr. DELAY. Mr. Chairman, I think
that the gentleman from North Caro-
lina has established his entire support
for this bill on the fallibility of the
polygraph system. The gentleman
cited a few studies and challenged us
to come up with studies of our own.
The CHAIRMAN. The time of the
gentleman from Pennsylvania has
again expired.
(At the request of Mr. DELAY, and
by unanimous consent, Mr. WALKER
was allowed to proceed for 2 additional
minutes.)
Mr. WALKER. I yield to the gentle-
man from Texas.
Mr. DELAY. Mr. Chairman, I would
ask the gentleman after my statement
if he will change his support for the
bill If we can cite to the gentleman nu-
merous studies that show the accuracy
of the polygraph.
From Dr. Barland. University of
Utah, 89.7 percent accurate.
Mr. Philip Bersh, Temple University,
92.4 percent accurate.
Mr. Richard Blum, Stanford Univer-
sity, 96.2 percent accurate.
Dr. Frank Horvarth, 87.8 percent ac-
curate.
Dr. David Raskin. 96 percent accu-
rate, and I could go on and on. I have
got the book coming over. It is about
that thick of all the studies that have
been done that show that it is as accu-
rate as most drug testing or any other
tools that are being used In employ-
ment; so I can show the gentleman
that there are as many, if not more
studies, that show at least 85 percent
accuracy of the polygraph.
I will ask the gentleman, will he now
change his support for the bill, be-
cause I have as many, if not more,
than the gentleman has on the accura-
cy of the polygraph.
Mr. NEAL. Mr. Chairman, will the
gentleman yield to me to respond?
Mr. WALKER. I am happy to yield
to the gentleman from North Caroli-
na.
Mr. NEAL. Mr. Chairman, I would
refer the gentleman to the distin-
guished Republican Member from
Utah who is a former professor of star
tistics. I think he will point out to the
gentleman if we can get him involved
in this debate that at those levels of
accuracy, and I am not a statistician
and I cannot make his argument for
him, but I wish the gentleman was
here to make it, because I think he
could demonstrate that at these levels,
and this comes as news to me, frankly,
because the studies I have seen indi-
cate that they are much less reliable
than the gentleman indicates, but
even at these levels the gentleman is
talking about, the level of inaccuracy
would be one that would be a very
dangerous one for us to trust, so I
hope that when the gentleman from
Utah returns we can get involved in
this.
Mr. DELAY. Mr. Chairman, will the
gentleman yield?
Mr. WALKER. I am happy to yield
to the gentleman from Texas.
Mr. DELAY. Mr. Chairman, I am
looking for the gentleman from Utah.
the statistician. because three of the
studies were done by the University of
Utah.
Mr. CHAIRMAN. The time of the
gentleman. from Pennsylvania has
once again expired..
(By unanimous consent, Mr. WALKER
was allowed to proceed for an addi-
tional 10 seconds.)
Mr. WALKER. Mr. Chairman. I do
so just to bring the subject matter
back, protect the elderly the same as
we protect ourselves. Vote for the
November 4, 1.987
amendment of the gentleman from
Florida.
Mr. JEFFORDS. Mr. Chairman, I
move to strike the requisite number of
words.
(Mr. JEFFORDS asked and was
given permission to revise and extend
his remarks.)
Mr. JEFFORDS. Mr. Chairman, the
key question here is whether or not
passing this amendment will do any-
thing to protect the elderly. That is
the question.
Related to that is the question of
the validity of preemployment testing.
Now, the gentleman from Texas
mentioned some studies, and if my
memory serves me correctly these
studies were done by the polygraphers
about themselves, or related to studies
of polygraphers, or at least did not
deal with preemployment testing.
Mr. DELAY. Mr. Chairman, will the
gentleman yield?
Mr. JEFFORDS. I will yield to ask
the gentleman this question. Did they
deal with preemployment testing?
Mr. DELAY. Yes, the studies dealt
with preemployment testing and these
were not conducted by polygraphers.
These tests were performed by profes-
sors in universities that made studies
commission by private organizations
and compiled by the Department of
Defense in 1984. These individuals are
not polygraphers.
Mr. JEFFORDS. Well. I would just
point to the OTA, the Office of Tech-
nology Assessment of the Congress,
which did a study of the studies, and
those were not commented on there,
and found that there is no study, to
their knowledge at that time, that
showed any validity to preemployment
testing. That is the issue here, because
we are weighing issues here dealing
with the private sector which we do
not have with the Government sector.
Now, as to government use of the po-
lygraphers I will recite some informa-
tion that came to me this morning by
virtue of my being on C-SPAN. I was
talking with a polygrapher who did
some preemployment testing for a
police department. I will get to that
matter in a minute.
The question here is an interest-
weighing matter. The important point
here is the polygraph test is not reli-
able. Let us take a look at what the
courts have said about this and how
long they have said it. The first case in
the U.S. Supreme Court case dealing
with polygraphs was in 1923. This
issue and discussion on it has been in
existence for probably 70 years. Yet
still the courts will not allow this test
to come into evidence. This should be
distinguished from drug testing and all
those kind of things which are allowed
in evidence in courts under certain cir-
cumstances. Let us not be confused by
these analogies.
Also, it should be pointed out that
this particular amendment is opposed
by the American Medical Association.
the American Psychologists Associa-
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November 4, 1987 CONGRESSIONAL RECORD - HOUSE
tian and the American Nurses Associa-
tion. These tests administered here
under these circumstances are humi-
liating. They are an Invasion of priva-
cy with the questions that are asked.
They have no known validity in the
preemployment testing situation, the
private sector interests should be dis-
tinguished from the military and
others who come forward and are
placed in a position of national securi-
ty. They are considered to have waived
some of those rights. Certainly that
would be true with respect to police of-
ficers dealing with us here In applying
for positions which involve that kind
of rigorous testing required for such
tests and responsibilities. This Is not
true when you talk about people de-
serving and work for nursing homes,
et cetera in the private sector.
Let me relate to you the experience
I had this morning to show you how
these polygraphs are used or rather
misused. On C-SPAN this morning,
naturally I was challenged by poly-
graphers. One was the police depart-
ment examiner in one of the Virginia
areas. He called and said, "It is very
reliable. We had a hundred applica-
tions for four positions in the police
department. I examined them and in
96 cases I could tell they were drug ad-
dicts, criminals or sexual abusers.
Therefore, we were able to hire the
only four that came forward that I
could tell were really honest and
would make police officers, and they
have."
Now, can you believe that that
would occur? He must have been sit-
ting outside of the State prison exam-
ining people coming out t e door and
looking for jobs, That is tl ' kind of ri-
diculous response you get from some
polygraph operators.
I point that out because what we are
basically concerned with here is the
protection of people, yes; but it is pro-
tection also of those who want to be
there to try to protect people.
Since the polygraph ha no demon-
strated reliability in this k d of situa-
tion, what we are trying to . ay here, at
least in the preemploymen.. situation,
is that we should not subject people to
such intimidating and unreliable tests,
thus eliminating people from being
able to work by virture of a test which
absolutely has no known validity In
the preemployment situation.
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield?
Mr. JEF'FORDS. I am happy to yield
to the gentleman from Florida.
Mr. YOUNG of Florida. Mr. Chair-
man, I thank the gentleman: for yield-
ing.
Since we got away from the elderly
nursing home amendment once again
and we are back on the bill, let me tell
you why the gentleman from Georgia
[Mr. DARDEN] and myself have sug-
gested this substitute, because we put
in there a Bill of Rights for that
person who might be examined by a
polygrapher. A substitute says:
A polygrapher may not ask a question
during the actual examination unless such
question is in writing and has been reviewed
with the examinee prior to such examina-
tion
That takes care of the problem the
gentleman from Indiana [Mr. ViscLo-
sKYI mentioned earlier in the debate
when they could not pronounce the
name of his high school-
A polygraph examiner may not inquire
int.o (a) religious beliefs or affiliations:
racial beliefs or opinions: political beliefs or
affiliations; sexual preferences or actisities,
beliefs affiliations or opinions regarding
unions or labor organizations. Each prospec-
tive examinee shall be required to sign a
notice before the beginning of each poly-
graph examination that he understands the
limitations imposed on the examiner: that
the examinee may terminate the examina-
tion at any time: that the examinee has
legal rights and remedies if the polygraph
examination is not conducted in accordance
with this title.
And It goes on.
The CHAIRMAN. The time of the
gentleman from Vermont has expired.
(At the request of lulu. Yours of
Florida, and by unanimous consent,
Mr. JarroaDs was allowed to proceed
for 1 additional minute.)
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield further?
Mr. JEFFORDS. I yield to the gen-
tleman from Florida.
Mr. YOUNG of Florida. Let me add
this further point. This is a bin of
rights to protect the person who will
be examined by a polygrapher.
Now, under the Williams bin, there
is no such guarantee. There is no bill
of rights for the examinee in the bill
before us.
This substitute Is the only legisla-
tion pending today that protects the
rights of the examinee. That is why
we should adopt this substitute later
on to do just that. There are going to
be polygraph examinations whether
the Williams bill passes or not; so at
least let us make them professional
and provide a bill of rights for the ex-
aminee now Mr. Chairman, but at this
point let us get back to the issue at
hand, which is protection of the elder-
ly in nursing homes, because that is
the issue before us right now.
The CHAIRMAN. The time of the
gentleman from Vermont has again
expired.
(By unanimous consent, Mr. Jsr-
Foans was allowed to proceed for 2 ad-
ditional minutes.)
Mr. JEFFORDS. Well, it is ture, Mr.
Chairman, that under the Williams
bill there would be no Bill of Rights
because there would be no examina-
tion. You do not need a bill of rights
to protect you from something which
is prohibited.
Now, if the gentleman is saying that
it would expand to other areas that
may be allowed, that may be Lure and
I would certainly have no quarrel with
that aspect of It. But here we are in-
volved here with the question of valid-
ity and nothing you can do is going to
make something that has been shown
H 9557
not to be valid enough to be consid-
ered in evidence for 70 years to be sud-
denly valid now. I am sure that ques-
tions not have been asked, have been
changed and reordered by polygraph
examiners over the years to try and
get admissible results. Yet they still
cannot get results which are reliable
enough to let the courts admit them
into evidence.
So I would say right now the ques-
tion is whether or not these tests are
valid the evidence is very clear that
they are not valid. potentional em-
ployees should not be subjected to
such humiliating tests and questions
in preemployment situations.
0 1355
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield?
Mr. JEFFORDS. I yield to the gen-
tleman from Florida.
Mr. YOUNG of Florida. Mr. Chair-
man, I am sure the gentleman from
Vermont did not do this intentionally,
but he misspoke. Under the Williams
bill millions of Americans can be poly-
graphed. Those who work for the U.S..
Government, those who work for the
governments of all the 50 States, those
who work for the governments of the.
thousands of counties and the thou-
sands and thousands of cites can all be
polygraphed.
Mr. JEFFORDS. Reclaiming my
time, I will admit that the gentleman
is correct and add that is true for some
employees of the defense industry.
Mr. YOUNG of Florida. All of those
people are subject to polygraph by the
Williams bill. I do not think the gen-
tleman intended to misspeak, but un-
fortunately he did.
Mr. JEFFORDS. Mr. Chairman, I
would say that the gentleman is cor-
rect in that. Of course those situations
other than the Federal Government
are not under our jurisdiction, other-
wise we may have given consideration
to covering them. However, that does
not diminish my arguments relative to
the non validity of the tests.
Mr. MARTINEZ. Mr. Chairman, will
the gentleman yield?
Mr. JEFFORDS. Mr. Chairman. I
yield to the gentleman from Califor-
nia.
Mr. MARTINEZ. Mr. Chairman, the
point is they are susceptible to being
polygraphed and are not part of the
Federal Government. The point is
there are tens of thousands of those
who have no business being poly-
graphed because they have not done
anything wrong to begin with, who are
going to be polygraphed if this bill
does not pass.
Mr. JEFFORDS. I agree with the
gentleman. We are here to protect the
private sector. also, as well as deal
with Ge\?ernment agencies.
Mr. Chairman, I again urge my col-
leagues that this amendment be de-
feated
Mr. McCOLLUM. Mr. Chairman. I
rnov e to strike the last word.
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H'9558
CONGRESSIONAL RECORD - HOUSE Not-ember 4, 1,93,
Mr. Chairman, I think this debate is
down to the point now where we ought
to be talking about what is reasonable.
Everything we do in this Congress, it
seems to me, is all part of our checks
and balances, that old balance wheel
that we have talked about in many of
these debates comes into play here, it
seems to me.
What are the inherent evils of the
polygraph test? I do not think there
are inherent evils. If the polygraph is
given to somebody, there may be har-
assment, there is potential for abuse
of it in the preemployment practice,
no doubt about it, but in the sense
that it is inherently evil that some-
body will suffer physical ailment or
somebody is going to die from it or
somebody is going to be irreparably in-
jured by it, that is highly improbable
that that would occur. On balance, the
question is under what circumstances,
if any, will the polygraph examination
be given in the employment scenario?
It seems to me that when one weighs
the limited amount of evil, if that is
what it is to be called, or problems for
somebody seeking employment in a
nursing home, the harassment and po-
tential abuse that might be there
weighed against the harm that could
occur to the elderly if we denied the
owners and operators of nursing
homes the opportunity to preemploy-
ment screen with a polygraph, I think
that we have to come down firmly on
the side of the elderly in allowing the
employment screening to take place.
The fact of the matter is that there
will always be debate over the techni-
cal validity of the polygraph, whether
it is 85, 90, 72 percent accurate. Let me
say to my colleagues, drug tests are
not all accurate. We had a great
debate over the AIDS test, and a lot of
people still say, people in the medical
profession, say the AIDS test does not
screen out all the necessary things to
make certain determinations.
The point is that the polygraph test,
by the evidence I have seen, and I
have seen a lot of it as my colleagues
have also seen it, is extremely valid for
the purposes of preemployment
screening if an employer uses other
things besides simply the polygraph.
which we would be required I am sure
under any form of this legislation, the
substitute or this one, the tests that
the gentleman from Florida [Mr.
YOUNG] has proposed in his substitute
would seem eminently fair. These
would provide the degree of safe-
guards necessary to let the polygraph
be used for the protection of the elder-
ly.
I had a grandmother in a nursing
home, some of my colleagues have had
their parents or grandparents in a
nursing home. I think most of the
nursing homes of this country are to
be respected. There has been a great
improvement over the last few years in
the quality of care and inspections,
but elderly people in nursing homes
themselves are often not capable of
understanding certain things, or pro-
tecting themselves. They are among
the most vulnerable citizens of this
country. They are people that I am
sure every Member of this body wants
to be sure their interests are protect-
ed. The fact is they can have valuable
possessions in their rooms that could
be easily stolen. As the debate brought
out earlier, in a nursing home, an el-
derly citizen can be attacked by the
wrong person working there. We have
had documented cases of rape and of
physical abuse to the elderly in nurs-
ing homes by people who have no busi-
ness being employees of those nursing
homes. The polygraph itself is not
going to be a guarantee to get rid of
all those people but it seems to me on
balance, and I think that is what we
have to do here as a body, if we are
weighing the good and the evil of the
use of the polygraph, in this case the
good, the need for the polygraph in
the nursing home setting to protect
the elderly far outweighs any harm
that could possibly occur in the em-
ployment area to somebody who might
want to work in a nursing home.
There are a lot of other places, if
somebody is worried about getting a
job and being rejected, where they can
go to work where they will not worry,
and we will not worry, about what
kind of threat they will be to the el-
derly. to the health and safety of the
elderly and to their possessions.
It is just not responsible for this
body to allow a bill like this to go
through that would prohibit the em-
ployer in a nursing home context from
screening people who work in that es-
tablishment who take care of the el-
derly, who are on guard around the
clock at midnight when everybody else
has gone home. It is not reasonable
for us to prohibit that employer from
using the polygraph, from using every
reasonable means to protect the elder-
ly that are in that nursing home facili-
ty.
Mr. Chairman, I strongly urge my
colleagues to put some common sense
into this debate. Whatever my col-
leagues think about the use of the
polygraph in general, the gentleman
from Florida's [Mr. YOUNG] amend-
ment on nursing homes is eminently
fair and logical, and a balanced ap-
proach to this process. We need to
have an amendment in this bill that
exempts nursing homes.
Mr. Chairman, I urge my colleagues
to vote for the Young amendment.
Mr. WORTLEY. Mr. Chairman, I
move to strike the requisite number of
words.
Mr. Chairman, I rise in support of
the Young amendment. As a member
of the Select Committee on Aging, I
am acutely aware of the special con-
cerns of the elderly and those involved
with caring for the elderly. This
amendment realistically confronts a
very sad reality facing our seniors-a
reality that involves cases of physical
and psychological abuse, violation of
rights, and financial exploitation in
nursing homes.
Let met make it clear from the start
that my comments in no way typify
employees and professionals of the
nursing home industry, but rather
some particular cases which could be
avoided in the future by the use of
polygraph testing.
Physical abuse in nursing homes
comes in many forms ranging from
simple neglect to being strapped to a
bed and left in the dark for hours. Oc-
casionally, actual beatings occur which
result in cuts, bruises, and broken
bones.
Psychological abuse is even more di-
verse, ranging from verbal assaults to
protracted efforts to dehumanize an
elderly person.
Additionally, violation of fundamen-
tal inalienable rights occur in nursing
homes. This includes violation of the
right to adequate, appropriate medical
treatment and the right to a clean,
safe, living environment, among
others.
Finally, financial exploitation by
nursing home employees has been ac-
complished through force, fraud,
deceit and misrepresentation. I am
talking about documented cases in
which employees have physically
forced seniors into signing checks and
cosigner release forms.
Allowing nursing home employers to
use polygraph testing would signifi-
cantly aid in weeding out those few-
and I emphasize few-employees or
applicants who pose a direct physical,
psychological or financial threat to
the elderly.
Currently, it is conceivable that a
person with a history of physical as-
sault coud gain employment, undetect-
ed, in a nursing home. Polygraph test-
ing is one important and necessary
option to help make it impossible for a
person to carry a bad track record, in
terms of nursing home employment,
from one location to another. I sin-
cerely believe that nursing home em-
ployers should be permitted to use this
testing method to aid their efforts to
keep criminals away from the elderly.
I support this amendment since it
provides a much needed tool in pro-
tecting our senior citizens. We have al-
ready made an exemption to the poly-
graph prohibition for reasons of na-
tional security, and I cannot accept
that it is any less important to protect
our elderly-your parents, my parents.
my 87-year-old mother who resides in
a nursing home. I urge your consider-
ation and strong support of this cru-
cial exemption to H.R. 1212.
Mr. GUNDERSON. Mr. Chairman, I
move to strike the requisite number of
words.
(Mr. GUNDERSON asked and was
given permission to revise and extend
his remarks.)
Mr. GUNDERSON. Mr. Chairman, I
hope that I will not take my full time,
but I think there are two important
items that need to be added to the dis-
cussion on the amendment of the gen-
tleman from Florida [Mr. YOUNG].
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November 4, 1987 CONGRESSIONAL RECORD - HOUSE
I rise in support of this amendment
and I rise in strong support of this
amendment because I would call to
the attention of every one of my col-
leagues and particularly my colleagues
on the Democratic side of the aisle, to
take a look at the 1985 May report by
the Select Committee on Aging on "El-
derly Abuse: A National Disgrace."
01405
Take a look at that report and take
a look at the discussions in there on
the area of sexual abuse alone.
Let me recall for my colleagues some
of the testimony from that report. An
elderly woman with cerebral palsy re-
lated her experiences in five different
nursing homes in which she lived. In
one of those experiences she was
abused sexually by her doctor. At that
time her speech was so severely im-
paired that she could not relate this
experience to her nurses
A daughter wrote from California re-
garding treatment of her aged mother
in a convalescent hospital The hospi-
tal personnel would tie her mother in
a chair and leave her in a crowded
room for long periods of time. No at-
tempt was made to treat a bad eye in-
fection. Her mother was beaten up
while a patient. When questioned by
the daughter, the head nurse said,
"We really don't know what hap-
pened."
Mr. Chairman, elder abuse is hap-
pening and what we are talking about
here today could have a direct impact
on curbing such abuse. Before we get
into some kind of a rampage to auto-
matically ban the use of polygraphs
for everybody but national security,
v must somehow or another take into
( (nsideration the very threats to those
l ast able to protect themselves, our
e derly population in this country.
Second, I want to point out that 41
States in this country have some kind
of legislation regarding the use of the
polygraph today. All 50 States, all 50
States, have regulation of their nurs-
i: ig home industry. Are we going to at
t'- c Federal level say no matter what
y( a are trying to do to regulate your
nirsulg homes, you cannot in any way
try to protect the residents of that
nursing home by making sure that the
people that are hired as the staff and
the employees of that nursing home
do not have previous records of sexual
abuse of elder people. Where are our
consciences?
This amendment ought to be accept-
ed. There should not have been a
debate, and if there is a rollcall I ask
everyone to vote for it in a unanimous
fashion.
The CHAIRMAN. The question is on
the amendment offered by the gentle-
man from Florida [Mr. Youbic].
The question was taken; and the
Chairman announced that the noes
appeared to have it.
REC(WnED VOTE
Mr. YOUNG of Florida Mr. Chair-
man, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic
device, and there were--ales 187, noes
237, not voting 9, as follows:
(Roll Ito. 4A'rl
ATM-187
Anderson
Hammerschmldt Oxley
Amber
Hansen
Paekard
Aroq
Harris
Farris
Badham
Hastert
Pachamn
Baker
Hatcher
Pepper
BaTkwser
Hayes (LA)
Pickett
Barnard
Hefley
Pietle
Bartlett
Hefner
Porter
Barton
Berger
Quillen
Bateman
Hoer
Rasenel
Bestet t
Hochbroeetav
May
Bentley
Hoilowsty
ReaWa
Bereuter
Hopkins
Rhodes
Bend
Huckaby
Roberts
Biarakia
Hunter
Rogres
Bliley
Hutto
Rose
Boggs
Hyde
Roth
Boulter
Inhofe
Ronkema
Broonfleld
Ireland
Rowland (GA)
Bueehner
Jmktnn
mitt
Bunning
Jones (NC)
Saxton
Burton
Jones (Tit)
Schaefer
Byron
Kasieh
Scfasette
Callahan
Kolbe
Sehui`e
Chandler
Konnyu
Sensenbrenoer
Chapman
Kyl
Shaw
Chappell
Ia6om(srslno
Shumway
Cheney
Lancaster
Siwster
Clarke
Latta
Siaizky
Coats
Leath (TX)
Skeen
Coble
Lent
Slaughter MA)
Coleman (MO)
Lewis (CA)
Smith (NE )
Combed
Lewis (FL)
Soitb (NJ)
Courter
Lightfoot
Smith (TX)
Craig
Livingston
Smith. Denny
Daniel
Lloyd
(OR)
Dannemeyer
Lott
Smith. Robert
Darden
Lowery (CA)
(NH)
Dent,
Lujan
Smith, Robert
de k. Gaza
Lukens. Donald
(GR)
Delay
Lungrea
Saiomm.
DeWine
Mack
Spence
Dickinson
MacKay
Stangeland
DioGuardi
Madigan
Stenholru
Dorman (CA)
Marlene
Staorp
Dreier
Martin (IL)
Sundquist
Edwards (OK)
Martin (NT)
Sweeney
Emerson
McCandless
Swlbdall
Erdreich
McCoHusn
Tai
Fawell
McEwen
Taylor
Fields
McGrath
Thomas (CA)
Flippo
McMillen (NC)
Thomas (GA)
Frensel
Meyers
Terricelii
Gallegly
Mica
Vaientiiw
Gano
Michel
Vander Jagt
Garcia
Miller (OH)
Yucanortch
Gekas
Molinari
Walker
Gingrich
Montgomery
Wbl&taker
Goodling
Moorhead
Wolf
Gradison
Morrison (WA)
Wortley
Grant
Myerz
Wylie
Gunderson
Nelson
Young (FL)
Han (OH)
Nichols
Hall (TX)
Ortiz
NOES-237
Ackerman
Bryant
Dorgan (ND)
Akaka
Bustamante
Dowdy
Alexander
Campbell
Downey
Andrews
Cardin
Darbtm
Annunzio
Carper
Dwyer
Anthony
Carr
Dymally
Applegate
Clay
Dyson
Aspin
Clinger
Early
Atkins
Coelho
Eckart
AuCoin
Coleman (TX)
Edwards (CA)
Bates
Collins
English
BeRenson
Conte
Espy
Berman
Conyers
Evem
Bilbray
Cooper
Psscell
Boeblert
Coughlin
Fazio
Boland
Coyne
PefFfran
Boater
Crockett
Pish
Booker
Davis (IL)
Flake
Borski
Davis (Ml)
Florio
Bosco
DeFazio
Fog)ietta
Boucher
Deuums
Foley
Boxer
Derrick
Ford (MI)
Brennan
Dicks
Ford (TN)
Brooks
Dingen
Frank
Brown (CA)
Dixon
Frost
Bruce
Donnei
Gaydo:
- H 9559
Ge$enes.
Msvrwals
$ai r
Gibbons
Mansell
sawyer
Gilman
McCloskey
Schauer
Glickman
Mccurdy
Schneider
Gonzalez
McDade
Schroeder
Gordon
McHugh
Schauer
Grandy
McMillen (MD)
Sharp
Gray (IL)
MSaoe
Shays
Gray (PA)
Mille (CA)
Slka*i
Green
Miller (%VA(
skagsa
Gregg
Minters
Skelton
Guazini
Moakley
Slat(.ery
Hamilton
MoUIohan
Slaughter (NY)
Hawkins
Moody
Smith (PL)
Hayes (IL)
Morena
Smith (IA)
Henry
Morrison (CT)
Serowe
Hertel
Mr k
asides
Horton
Murphy
Spratt
Houghton
Murtha
St Germain
Howard
Nagle
Staggers
Royer
Hatcher
Stallings
Hubbard
Neal
Sark
Hughes
Nielson
Stores
Jacobs
Nowak
8addis
Jelfords
Oskar
Swift
Johnson( CT)
Oherstar
Synar
Johnson (SD)
Obey
Talloe
Jontz
Olin
7*uke
Kan}arski
Owens (NY)
Torres
Kaptur
Panetta
Towns
Kastenweier
Patterson
Traficant
Kennedy
Pease
?railer
Kesme ly
Primi
UdaY
Klidee
perry
Upam
K leczka
Perkins
Vents
Kolter
Petri
Visclosky
Kostmayer
Price (IL)
Yulkaeer
IaFalce
Pries (NC)
W algren
Lantos
Pursell
W "Ins
Leach (IA)
Rahall
Waxman
Lehman (CA)
Raneel
Weber
Lehman (FL)
Richardson
Weiss
Leland
Ridge
Weldon
Levin (MI)
Rinaldo
Wheat
Levine (CA)
Ritter
Whitten
Lewis (GA)
Robinson
w7liarr z
Lipinski
Rodioo
wi>ee
Lowry (WA)
Roe
wise
Luken. Thomas
Rostenkowski
Wolpe
Marron
Rowland (CT)
Wyden
Markey
Rosbal
Yates
Martinez
Russo
Yatroa
Matsui
Sabo
Young (AK)
NOT VOTING-!
Biaggi Duncan Owens (CT)
Brown (CO) Gephardt Roetaer
Crane Kemp Stratton
G 1420
Mr. WELDON changed his vote
from "aye" to "no."
So the amendment was rejected.
The result of the vote was an-
nounced as above recorded.
AMEWDMrNT OFFERED BY MRS. ROTIBEMA
Mrs. ROUKEMA. Mr. Chairman, I
offer an amendment.
The Clerk read as follows
Amendment offered by um Rouxsse.
Page 8. after line 13, insert the following
new subsection:
(d) ExgM'rlore FOR SECURITY SERVICES.-
(11 Subject to paragraph (3), this Act shall
not prohibit the use of a he detector test on
employees or prospective employees of a pri-
vate employer whose primary business pur-
pose consists of providing armored ear per-
sonnel. personnel engaged to the design, in-
stallation, and mainUmance of security
alarm systems, or other eniformed or plain-
clothes security personnel and whose func-
tion includes protection of-
(A) facilities. materials, or operations
having a significant impact on the health or
safety of any State or Political subdivision
thereof, or the national security of the
United States, as determined under rules
and regulations issued by the Secretary
within 60 days after the date of the enact-
ment of this act, iachldzng-
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CONGRESSIONAL RECORD - HOUSE Aot,ember 4, 19 '
(i) facilities engaged in the production.
transmission. or distribution of electric or
nuclear power;
(ii) public water supply facilities:
(iii) shipments or storage of radioactive or
other toxic waste materials. and
(iv) public transportation: or
(B) currency, negotiable securities, pre-
cious commodities or instruments, or propri-
etary information or property.
(2) The exemption provided under para-
graph (1) shall not diminish an employer's
obligation to comply with-
(A) applicable State and local law, and
(B) any negotiated collective bargaining
agreement,
which limit or prohibit the use of lie detec-
tor tests on such employees.
(3) The exemption provided under this
subsection shall not apply if-
(A) the results of an analysis of lie detec-
tor charts are used as the sole basis upon
which an employee or prospective employee
is discharged, dismissed, disciplined in any
manner, or denied employment or promo-
tion; or
(B) the test is administered to an employ-
ee or prospective employee who is not or
would not be employed to protect facilities,
materials, operations, or assets reeferred to
in paragraph (1).
Mrs. ROUKEMA (during the read-
ing). Mr. Chairman, I ask unanimous
consent that the amendment be con-
sidered as read and printed in the
RECORD.
The CHAIRMAN. Is there objection
to the request of the gentlewoman
from New Jersey?
There was no objection.
Mrs. ROUKEMA. Mr. Chairman, I
hope that as we consider this amend-
ment there will be less heat and more
light on the subject.
This is the same one which was
passed by the House last year and
which the gentleman from Montana
(Mr. WIu.i s) accepted last year. He
stated then that "it is very necessary
? ' ' to establish symmetry between
what we allow in the public sector
? ? ' and what we allow in the private
sector." And that it "establishes some
symmetry with what the FBI, the
CIA, and the National Security
Agency are allowed to do."
The amendment applies to firms
whose primary business is to furnish
protective security services for sensi-
tive facilities affecting the public
health and welfare and valuable items
and documents. In other words, pri-
vate firms which perform a policing
function of protection of certain types
of property and facilities would have
the same ability to use the polygraph
as public police forces.
This amendment would include ar-
mored car, uniformed and plainclothes
guards and security alarm companies.
It would allow the administration of
polygraphs to those who guard such
facilities as nuclear powerplants,
public water supplies, and public
transportation, such as airports. I
cannot overstate the need for airport
security. There would be devastating
results to the public if just one terror-
ist Infiltrated such facilities.
Let me give you just one example of
the need for this amendment. The ar-
mored car industry transports, counts
and stores over $15 billion per day.
The majority of the monetary losses
in the industry-65 percent-result
from internal theft. Furthermore, em-
ployees in the industry are frequently
required to carry guns. Employers nec-
essarily have a great concern for inves-
tigating those they employ in such
sensitive positions, both to protect
their customer's property and to pro-
tect the public.
To address concerns that the exemp-
tion not be so broad as to cover low
priority security functions, there is an
important limitation. The administra-
tion of polygraphs is only allowed
when employees are engaged in the
protection of currency, negotiable se-
curities, precious commodities or in-
struments, proprietary information, or
facilities, materials or operations
having a significant impact on our na-
tional security or the health or safety
of a state or locality.
Finally, the amendment contains a
safeguard for employees who are
tested. They may not be denied em-
ployment, discharged, or disciplined
solely on the basis of the results of a
polygraph test. An employer would
have to have additional corroborating
information before taking any of these
actions.
The amendment specifically states
that more restrictive state or local law
or collective bargaining agreements
limiting polygraph use are not pre-
empted.
In further defining these interests
through regulations. I emphasize that
the language in the amendment is de-
signed to be inclusive and broadly con-
strued. Therefore, we do not expect
the Secretary in his regulations to
limit the exemption to just those fa-
cilities listed in the amendment. In ad-
dition. the definition of "proprietary
information" shall include documents
which are essential for the functioning
of a business.
Finally, the amendment contains a
safeguard for employees who are
tested. They may not be denied em-
ployment, discharged, or disciplined
solely on the basis of the results of a
polygraph test. An employer would
have to have additional corroborating
information before taking any of these
actions.
Even If you believe there is a need
for this bill's prohibitions, you must
realize that there are certain interests
which are so sensitive to both the em-
ployer and the public that we must
provide special consideration. The
sponsors of the bill already recognize
that a balancing test between individ-
ual interests and the public interest is
sometimes needed because exemptions
are included for all State, local, and
Federal Government employers and
for defense and FBI contractors. The
private security industry has a similar
compelling need for access to the poly-
graph.
I urge you to support this important
common sense public safety exemp-
tion, as did the House last year.
^ 1435
Mr. KELTON. Mr. Chairman, I approach
the subject-in favor of the original bill and
against the substitute-with trepidation. A
number of years ago, I had the opportunity to
serve as the Lafayette County prosecuting at-
torney back home in Missouri, and on several
occasions, I was aware of and knew of the
administration of polygraph tests to people
who were suspected of criminal activity in one
form or another. As a result of the experi-
ences that I had, there were cases in which
the findings were, at best, inconclusive. On
two occasions I had good reason to believe
that people beat the test. The fact of the
matter is these tests are far from reliable and
polygraphs are no better than the person who
gives them.
We are fortunate to have in my home
county a sheriff who has served on the force
for some 27 years, and I think no one would
question his ability. But, compare this gentle-
man, Sheriff Gene Darnell of Lafayette
County, with someone who has had only 6
weeks of training and is a certified polygraph
tester and I think that there would be a great
deal of difference between the two.
In all truthfulness I have some serious prob-
lems with this issue, and because of my past
experiences, I am driven irresistibly in favor of
the bill.
Mr. SLATTERY. Mr. Chairman. I
move to strike the last word, and I rise
in support of the Roukema amend-
ment.
Mr. Chairman, we all agree that the
polygraph can be and has been
abused. There is no question that
some people have been wrongfully
denied employment or fired on the
basis of a faulty polygraph examina-
tion. There can be no doubt that this
legislation will sharply reduce the use
of the polygraph in the workplace.
This legislation will not eliminate
the use of the polygraph. But, we are
deciding where and when the use of
the polygraph is justified. The Educa-
tion and Labor Committee has already
determined that for purposes of na-
tional security and law enforcement,
some useful information can be gained
from polygraph examinations.
Private security companies are often
hired to fulfill functions of equal im-
portance, especially in the area of
public safety.
The Roukema amendment provides
a narrow, well defined exemption from
the provisions of H.R. 1212. Only pro-
fessional security services could use
polygraphs and only for employees
who are assigned to protect:
Electric or nuclear powerplants:
Radioactive or toxic waste;
Public water supplies:
Public transportation; or
Currency, negotiable securities and
other precious materials.
In these instances, the overriding
concern must be for the protection of
the public and the preservation of
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November 4, 1987 CONGRESSIONAL RECORD - HOUSE
losses of currency or other precious
items.
The Roukema amendment recog-
nizes that the polygraph does not and
cannot replace appropriate back-
ground checks on prospective employ-
ees. The results of a polygraph test
could not be used as the sole basis
under which an employee or prospec-
tive employee is dismissed, disciplined,
or denied employment.
The polygraph is far from a perfect
tool. But, I believe that in a limited
number of instances, under the direc-
tion of a qualified examiner, the poly-
graph can be a useful tool.
In this case, I believe that. we must
put the public safety first. I urge a
"yes" vote on the Roukema amend-
ment.
Mr. SUNDQUIST. Mr. Chairman. I
move to strike the requisite number of
words.
Mr. Chairman, I rise in support of
the amendment offered by the gentle-
woman from New Jersey [Mrs. ROUKE-
MA] to exempt the private security in-
dustry from the restrictions placed
upon the use of the polygraph in the
pending legislation.
I think it is important, Mr. Chair-
man, as we take up this critical bill,
that we have the good sense to make
exceptions. I think it is important to
recognize that we cannot make broad
rules, that we cannot just get the
steamroller going and say, "The public
be damned."
This amendment is necessary to pro-
tect the private security industry, and
I commend the gentlewoman from
New Jersey [Mrs. RouKEMA] for offer-
ing her amendment. It is necessary for
consumers of private security, and I
think it is critical for the general
public safety.
Mr. Chairman, Government security
agencies, such as the CIA and the FBI,
as has been explained previously, have
the option to use polygraph tests. Pri-
vate security is an extension of Gov-
ernment security, and this is true par-
ticularly when security personnel pro-
tects companies doing contract work
for the Government.
Mr. Chairman. it is only consistent
with current policy that private com-
panies be given the same polygraph
exemptions as Government security.
To do less does not make any sense.
The polygraph test is a useful tool. It
is a deterrent, it is a protector. This
test, or even better said, the threat of
this test effectively deters criminally
minded individuals from abusing sensi-
tive security positions. This test also
protects the innocent, and that is im-
portant to consider. It protects the in-
nocent in cases where integrity is ques-
tioned.
Security exists to protect the safety
of the public. The general public is at
danger if this amendment does not
pass. The Roukema amendment en-
sures against terrorist or psychopathic
takeovers of vulnerable public installa-
tions such as airports and water facili-
ties.
Each and every one of us is affected
by private security. We are affected
when we go to a football game, when
we go to the airport, when next
summer we go to the conventions of
the Democratic and the Republican
Parties, when we go to the hospital,
when we go to the grocery stores, or
when we go to banks or any public
places, and as has been mentioned pre-
viously, we in the House allow the use
of the polygraph here at the Capitol.
Yet we are going to say to the private
sector, "You can't use this same tool
while we in the House of Representa-
tives allow it to be used for our protec-
tion."
The largest independently owned se-
curity company in America is head-
quartered in Memphis-Guardsmark,
Inc. Its employees range from
security guards at industrial plants to
highly sophisticated security experts in-
side sensitive industries where there is
no room for error. Think for a moment
about the damage that could be done.
We have read in the papers about prob-
lems in recent times. Think for a mo-
ment about the damage that could be
done by the wrong person doing baggage
screening. Think for a moment about
the misconduct, as was recently report-
ed, among security guards at a nuclear
powerplant. If this amendment does not
pass, we face that problem.
Finally, let us bear in mind that the
results from this test cannot be used
as the sole factor of an employment
decision.
In a company that I am familiar
with, Mr. Chairman, when they have
been doing their interviewing and the
prospective employee was given a list
of the questions that were to be asked
on the polygraph, over 65 percent of
the people who were discovered to be
guilty of filling out that employment
application wrongly admitted to that
offense prior to the polygraph test
being administered. In other words,
almost two-thirds of the people who
were not telling the truth admitted
prior to the test that they had filled
out the application wrongly.
Are we going to deprive the private
security industry of that tool? Good
security can only exist with rigorous
standards. I would urge my colleagues
to support this amendment to guaran-
tee effective security performance by
private security companies.
Mr. Chairman, I ask the Members to
support the amendment to guarantee
good security for sensitive businesses
and to support it for the safety and
welfare of the general public.
Mr. BIAGGI. Mr. Chairman, I move
to strike the requisite number of
words, and I rise in support of the
amendment.
Mrs. ROUKEMA. Mr. Chairman,
will the gentleman yield?
Mr. BIAGGI. I am glad to yield to
the gentlewoman from New Jersey.
Mrs. ROUKEMA. Mr. Chairman, I
want to thank the gentleman from
New York [Mr. BIAGGI] for the won-
H 9561
derful support he has given to this
amendment, both last year in commit-
tee and on the floor, and now this
year. I appreciate the leadership he
has shown on this issue.
Mr. BIAGGI. Mr. Chairman, I thank
the gentlewoman from New Jersey.
She is very kind. I was just about to
say that I am very proud to join the
distinguished gentlewoman from New
Jersey in offering this important
amendment to permit certain seg-
ments of the private security industry
to continue to use the polygraph test.
I want to commend Mrs. ROUKEMA for
the effective leadership she has dem-
onstrated on this important issue.
Mr. Chairman, this is the same
amendment that we offered last year
on the House floor. It was adopted
then by voice vote, and I would sug-
gest to my colleagues that it deserves
your overwhelming support once
again. Simply put, it recognizes the
highly sensitive nature of the security
industry, while providing a number of
carefully crafted and very important
labor protections. Let me stress to my
colleagues that, as a strong supporter
of labor, I would not be endorsing this
amendment if it did not protect the
rights of labor.
As a 23-year police veteran, I believe
there are certain very specific situa-
tions where the polygraph can and
should be used to help prevent crimes,
and to detect criminals once a crime
has been committed. This is clearly
one of those times.
This amendment would allow a pri-
vate employer to use the polygraph
for prehiring and posthiring purposes,
but only in those cases where employ-
ees would be responsible for high pri-
ority security functions. The bill de-
fines these jobs as those that have a
significant impact on the health or
safety of any State or local govern-
ment, as well as those jobs that impact
on national security. The only other
security personnel who would be eligi-
ble for the polygraph test under this
amendment would be those responsi-
ble for protecting public utilities, haz-
ardous materials shipments, public
transportation, currency, negotiable
securities, precious commodities, or
proprietary information from terrorist
or other criminal threats. I want to
emphasize that this amendment does
not provide a blanket prohibition for
the entire private security industry. It
deals strictly with terrorism and other
highly dangerous security risks. Noth-
ing more.
Certainly, a crime in any of these
areas could have devastating conse-
quences. That is why the private secu-
rity industry deserves the same special
consideration already given by this bill
to Government employers and private
contractors dealing with intelligence
or counterintelligence with the CIA.
NSA, Department of Defense, and the
FBI. And, that's why this amendment.
unlike some of the others to be of-
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CONGRESSIONAL RECORD - HOUSE November 4, 1987
fered, is totally consistent with what's i
already in the bill.
Let me offer a perfect illustration of
why this amendment is so important.
In 1983, a member of a Puerto Rican
terrorist group robbed a Wells Fargo
armored car depot of $7 million-the
second largest theft in U.S. history.
Why is that incident so important to
today's debate? Because that Puerto
Rican terrorist was a Wells Fargo se-
curity guard_ Unfortunately, he was
hired in Connecticut, a State that does
not allow polygraph testing. Based on
his employment profile, this terrorist
was going to make a fine security
guard and was entrusted with guard-
ing millions of dollars. Only the poly-
graph test could have determined his
true criminal intent. In this case, a
group of violent terrorists ended up
with $7 million in stolen money to
fund death and destruction. Simply
put, we need to fight terrorism with
all the tools at our disposal, and the
polygraph test is one of those impor-
tant tools.
As stated previously, the amendment
contains a number of.very important
labor protections. For example, it
would not preclude existing State and
local law, or any negotiated collective-
bargaining agreement, which limit or
prohibit the use of lie detector tests;
and it guarantees that the analysis of
lie detector charts will not be used as
the sole basis for denying employment
or promotion. The Department of
Labor would be required to ensure
that these provisions are effectively
enforced and that the rights of the
employee under these provisions are
fully protected.
H.R. 1212 seeks to prevent employ-
ment discrimination based on the irre-
sponsible use of the polygraph test by
private employers. I fully support that
worthy objective and am an original
cosponsor of this bill. I know that too
much of the private sector does abuse
and overuse the polygraph to the det-
riment of our Nation's labor force.
However, the same cannot be said
about the private security services In-
dustry. In fact, evidence we heard pre-
sented before the Education and
Labor Committee has convinced me
that the polygraph test is an Impor-
tant anticrime tool that is selectively
and responsibly used by the private se-
curity services Industry.
Mr. Chairman, for anyone interested
in fighting terrorism and other serious
crime, this is a good amendment. For
anyone interested in protecting the
rights of labor, this is a good amend-
ment. And, for anyone interested in
protecting the security interests of our
Nation, as well as the personal safety
and property of American citizens,
this is a good amendment.
I strongly urge its approval
1450
Mr. MARTINEZ. Mr. Chairman. I
move to strike the requisite number a(
words.
Mr. Chairman. I want to state that
we will get into the same debate that
we got into in the past over the fact
that some Members believe that this is
the save-all of all the problems of in-
dustry, that by polygraphing employ-
ees prior to hiring that we are going to
weed out the people that would perpe-
trate any wrongdoing while in your
employ
The truth of the matter is, it is not,
because it does not take into consider-
ation the conditions at the time when
that person would perpetrate, for
whatever reason.
I doubt very much that it would do
anything other than allow people to
misuse this device for discrimination.
I was interested in the comments of
the gentleman from Vermont about
being on C-SPAN and getting a call
from a person who was a polygrapher
for law enforcement, and where the
gentleman described taking a number
of applicants, screening them down to
four that he knew of the myriad of ap-
plicants he got that were honest.
In my city the individual doing the
polygraph, after receiving an educa-
tion in polygraphing from one of the
finest schools back here in the East,
used this to discriminate against em-
ployees.
It was determined after an investiga-
tion of his activities as a polygrapher
that the applicants that were being
denied were those of Hispanic descent,
and that was the only basis on which
he was using the polygraph for evalu-
ating these people coming under those
applications.
There is a lot of area for abuse, and
the one thing that must be kept in
mind, when we talk about protecting
people's rights, we have to understand
that we are trying to protect the em-
ployees' rights, or people that are ap-
plying for jobs and their rights; and
there is no way that anybody can
really justifiably make the argument
that it Is going to protect their rights.
They are victims of the failure
factor of this machine and process,
and it will not protect their rights. It
gives the ability of the bias of the po-
lygrapher an opportunity to manipu-
late a situation to his like or dislike,
and for that reason I do not think it
should be used for anything more
than incident-specific after a situation
has occurred, and only as a part of a
total investigation, and where there Is
some determination, some direction
they can go with that investigation,
something they gather from that, so
that they might bring to the front the
hard evidence that actually deter-
mines whether this person is guilty or
innocent.
Mr. BARTLETT. Mr. Chairman, will
the gentleman yield?
Mr. MARTINEZ. I yield to the gen-
tleman from Texas.
Mr. BARTLETT. Mr. Chairman, I
thank the gentleman for yielding to
me.
I want to Inquire what the gentle-
man meant. Did the gentleman mean
to say that the gentleman would then
support an incident-specific exception.
so that the polygraph could be used if
there was a specific indicident, because
an amendment will be offered later by
the gentleman from Wisconsin (Mr.
GUNDERSON) for incident-specific test-
ing?
Mr. MARTINEZ. As the gentleman
read from the bill earlier, the bill pro-
vides for the use only as a part of a
total investigation.
I supported that portion of the bill
and offered that as an amendment in
committee which indicates my support
for the use in specific incidents.
Mr. BARTLETT. If the gentleman
would further yield, because I am
trying to clarify for the House, the bill
as currently drafted coming out of
committee, H.R. 1212, as I read it, does
not provide for any use of polygraphs,
except by a Government agency, and
does not provide for an incident-specif-
ic test.
I respect the gentleman saying that
he would support an incident-specific
use.
Mr. MARTINEZ. Yes.
Mr. BARTLETT. I would comment
to the gentleman that later in the
debate, probably way towards the end,
the gentleman from Wisconsin [Mr.
GUNDERSON] will have a very specific
amendment that will permit incident-
specific testing or postemployment;
and I would commend that to the gen-
tleman from California.
Mr. SHAW. Mr. Chairman, I move to
strike the requisite number of words.
Mr. Chairman, I doubt that I will
consume my full 5 minutes. The
debate seems to be going along the
lines of those who are voting against
this particular amendment, those
speaking against it, those that have
voted already. Unfortunately, the ma-
jority has voted on the wrong side of
the amendment of the gentleman
from Florida [Mr. YOUNG]. which was
a very good amendment.
In looking at this as to the object of
what we are talking about, you are
looking at the rights of the employee
and what the rights of the employer
should be. One cannot look only that
far.
We have to look to the general
public, to the good of the entire com-
munity. We have to look to what are
the rights of those that live near an
atomic plant to know that those em-
ployees who are in charge of the secu-
rity of that atomic plant have gone
through every bit of screening that
they could possibly be subjected to.
We are talking about when someone
entrusts his money to a carrier, that
those employees have been screened in
every way possible. Yes, there is going
to be abuses. Yes, there will be abuses.
There was one cited for discrimina-
tion by the gentleman from California.
We cannot legislate to address the
worst among us, but we must always
address the rights of the safety of in-
dividuals.
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CONGRESSIONAL RECORD - HOUSE H 9563
In my district office we are protected
by private security firms. I want to
know that my people working in my
office, and my constituents who are
coming in, my elderly who are visiting
their Social Security offices, which are
also in that Federal building, I want to
know that they are being protected.
This is a most important amend-
ment, and I compliment the gentle-
woman from New Jersey for having of-
fered it.
It is very fair and very narrow, and
we are not talking about doing great
harm to this legislation, even though I
feel very strongly that the legislation
itself is ill-advised.
Mrs. ROUKEMA. Mr. Chairman,
will the gentleman yield?
Mr. SHAW. I yield to the gentle-
woman from New Jersey.
Mrs. ROUKEMA. Mr. Chairman, I
thank the gentleman for yielding to
me.
The gentleman from Florida has
made an excellent point here. The
gentleman referred to the fact that
this amendment is carefully drawn.
The gentleman asked the question,
are we going to say we do not want the
best possible people properly screened
to guard nuclear powerplants? Do we
not want properly screened personnel
protecting water supplies?
Can you believe the deleterious ef-
fects of some person getting at a
public water supply? That is not
beyond one person's imagination.
Included also in this amendment are
those persons that are involved in the
shipment and storage of radioactive or
other toxic waste materials.
The gentlemen and I know how we
have worked so hard on legislation in
this Congress to protect the radioac-
tive and toxic wastes. We know what
emotions break out in communities if
there is any hint of a toxic waste prob-
lem.
Can you imagine what the American
public's reaction is going to be to learn
that we cannot even give employers
the right to use a polygraph as one
tool in screening the employees that
have responsibility for toxic wastes
and radioactive wastes?
I thank the gentleman for the gen-
tleman's contribution.
Mr. SHAW. The gentlewoman from
New Jersey is making some wonderful
points.
The gentlewoman is trying to cor-
rect something by this particular
amendment. What this bill does in its
present form, it does not create rights.
We cannot create rights.
We can merely redistribute them.
Sometimes they need to be redistribut-
ed; but in this instance, one is talking
about the water supply or an atomic
plant, the rights are being taken away
from the consumer and the general
public, simply to protect the rights
which have in very minor instances
been abused of the employee.
This one is wrong. I hope that the
Members of the House will vote yes
for the amendment of the gentlewom-
an from New Jersey [Mrs. RouxEUAI.
It is a most important amendment.
Mr. VALENTINE. Mr. Chairman, I
move to strike the requisite number of
words.
Mr. Chairman, I do not suppose
there is much that I can add to this
discussion that would not repeat or, I
hope, underscore some of the argu-
ments that have been made previous-
ly.
I rise in strong support of this
amendment, Mr. Chairman.
01505
I rise to express to my colleagues a
grave concern which I have concerning
this proposed legislation and a lot of
other matters which have come before
the U.S. House of Representatives in
the 5 years that I have been privileged
to serve here.
Do we really believe that American
business does not understand what we
are about, what some elements here
are about as we here in this legislation
say to them that we do not have
enough confidence in you to entrust
into your hands an instrumentality, a
mechanism, a machine, which is okay
for us to use in the Federal Govern-
ment? We can use it all we want to.
We passed legislation recently which
says in no uncertain terms that the
U.S. Government is free to use a poly-
graph or lie detector in many different
sets of circumstances, yet we have
elected to say to American business
here today that we do not think you
gentlemen collectively have got
enough sense to use it.
We say to the young proprietor or
old proprietor of a jewelry store that
if he has a handful of diamonds that
are missing, you know, you could put
him into bankruptcy by the wealth
that you could hold in one hand, that
this instrumentality which some say is
faulty and is an instrument of the
devil, he can not use it, but Uncle Sam
can use it all he wants to.
One final comment. I have great re-
spect for all the gentlemen who have
testified here and for those who spon-
sored this legislation. They are my
friends, I hope, but it is strange to me,
maybe some of the rest of you under-
stand this, but it is strange to me that
the sponsors of this legislation could
stand up here and tell us what a sorry
useless unreliable contraption this is,
but say that not only can the Govern-
ment use it, but with the legislation
that came up for consideration in
1986, and I hold in my hand a copy of
the CONGRESSIONAL RECORD, they ac-
cepted, after having cursed this device
so vehemently, they accepted an
amendment which permitted the use
of polygraph examinations for current
and prospective employees in the
pharmaceutical industry, for example.
They accepted the use of polygraph
examinations for employees who work
as security personnel protecting facili-
ties. They accepted an amendment
which permitted the use of polygraph
examinations for employees at public
utilities and they accepted the amend-
ment which was voted down by this
body a few minutes ago.
Now what does all this mean? What
are the folks back home looking at me
and looking at the rest of us, what are
they to make of that? We come here
and say that this dastardly contrap-
tion, that you can not use it in Ameri-
can business, with certain exceptions,
but that we in the Government can
use it all we want to.
I suggest that we ought to give this
more serious consideration, Mr. Chair-
man. We ought to support this amend-
ment and the other amendments
which seek to liberalize this legislation
and then defeat the legislation and
adopt the substitute which gives us
some reasonable, meaningful, sensible
relief.
Mr. Chairman, although it is clear that H.R
1212 has widespread support, I hope my col-
leagues will reconsider their positions on the
bill and on the Young-Darden substitute.
As I stated last year during House consider-
ation of a similar bill, if polygraphs are so un-
reliable, so wrong, and if their use violates in-
dividual rights, then their use should be made
unlawful in all situations and by all citizens. In-
stead, H.R. 1212 will exempt large numbers of
Government employees as well as certain pri-
vate consultants, contractors, and employees
of contractors doing business with the Federal
Government.
So far this year, the House has given over-
whelming approval to a randon counterintelli-
gence polygraph program at the Department
of Defense, and to a similar polygraph pro-
gram for diplomatic and embassy security per-
sonnel as a part of the State Department au-
thorization bill that passed the House unani-
mously. If the use of polygraphs is acceptable
in these situations, then I believe private in-
dustry should be allowed to utilize polygraphs
under certain conditions and with strong safe-
guards as a security tool.
On the other hand, if polygraphs are unreli-
able, why should we use them to test those
who are entrusted with our most sensitive se-
crets? Are they unreliable in detecting shoplift-
ing but all right for espionage? I fail to see the
logic in our position.
The Young-Darden substitute would provide
for the use of polygraphs only under carefully
regulated conditions, with protection for those
taking the tests, and impose standards for test
examiners. This is a much fairer approach
than the blanket prohibition of H.R. 1212.
If the Young-Darden substitute is voted
down and H.R. 1212 is passed without ex-
empting amendments, then the House will be
saying to the American people that it is per-
fectly all right, even commendable, for Gov-
ernment to use polygraphs but that the private
sector must not touch them.
Do we really want to administer this slap in
the face to the private sector? Think about it.
Mr. BARTLETT. Mr. Chairman, I
move to strike the requisite number of
words.
(Mr. BARTLETT asked and was
given permission to revise and extend
his remarks.)
Mr. BARTLETT. Mr. Chairman. I
rise to speak in favor of this amend-
ment. In speaking in favor of tht-
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H 9'56 CONGRESSIONAL RECORD - HOUSE November 4, 1981
amendment I want to call to the atten- It is far more narrow than even the If a private company hires a plain-
tion of the House that this is a differ- Government exemption that we have clothes man to ride on Metro, those
ent issue and a different amendment in the rest of the bill. plainclothes men to get a job would
than the issues we have been debating Mrs. ROUKEMA. Mr. Chairman, have to undergo a lie detector test; so I
all day; that is to say that the gentle- will the gentleman yield? say again, it is not limited to security
woman from New Jersey has con- Mr. BARTLETT. I yield to the gen- guards.
tructed a very narrow amendment tlewoman from New Jersey. You know, we are starting that part
that should have been acceepted by Mrs. ROUKEMA. Mr. Chairman, I of the process now which I guess we
the sponsors of the legislation. thank the gentleman from Texas for could call the butchers, bakers and
Now, there is a fundamental dis- his explanation and the stress that he candlestick makers, amendments. I
agreement within this body about the has put quite properly on the defini- mean, every industry in the United
need to eliminate the use of the poly- tion and the limitations of the amend- States, security guards, the electrical
graph as a whole, and we all under- ment. industry, plainclothes people, the day
stand that and from the last vote it is I think the corollary of what the care operators, the nursing home oper-
apparent that at least a majority so gentleman has just said should also be ators, the bankers, the butchers, the
far in the debate would choose to do stressed, which is that there is a pro- bakers and the candlestick makers are
that and a minority would not choose tection carefully devised here in this all going to come before us now with
to do that; but the gentlewoman from amendment against abuse. The poly- amendments asking that they be ex-
New Jersey [Mrs. ROUKEMA] is offer- graph cannot under my amendment be empted from this bill.
ing an amendment that those who used as the sole vehicle or instrument I think it is wrong to start trying to
favor the bill can and ought to vote for making a determination on em- pick and choose those industries or
for. I have gotten a copy of the ployment, promotion, dismissal, or any those individuals that we should give
amendment and I want to walk other factor pertaining to the appli- this phony lie detector gadget test to.
through it, describing for the House cant or the employee, and I think that So I oppose the gentlewoman's
how narrow this amendment is. The is equally important, because one of amendment and I do so knowing that
Roukema amendment would set out to the arguments that we hear is that we she made an attempt to craft it care-
protect the public from some rather are going to somehow be using poly- fully, but (a) the lie detector does not
serious and dangerous instances of po- graphs as the sole instrument to hang work, and (b) it is not crafted all that
abuse abuse without permitting any the employee or hand the innocent ap- carefully_ If it only included, if the
those ose whatsoever of the polygraph of potential employees, plicant This is not the case and it is amendment only included security
Now, the amendment is narrow. The expressly prohibited in my amend- guards and private police and private
ment. protective service people, it would
geed the antlewomen ndment has svesothexat it permits, draft- Mr. BARTLETT. Mr. Chairman. the mean that more than half a million
or gentlewoman is correct. Americans would be subjected to this
or does not prohibit f the use of a a poly- ,
graph on employees by a private em- Mr. WILLIAMS. Mr. Chairman, I gadget for which there is no scientific
ployer only if that private employer is move to strike the requisite number of evidence that it works.
an employer whose business consists words. I rise in opposition to the Mr. BARTLETT. Mr. Chairman, will
of providing armored car personnel, amendment the gentleman yield?
personnel engaged in the design, in- Mr. Chairman, the gentlewoman has Mr. WILLIAMS. Yes; I am pleased
stallation, and maintenance of securi- attempted to specifically draw her to yield to the gentleman from Texas.
ty alarm systems, or other uniformed amendment. I think she has probably Mr. BARTLETT. Mr. Chairman, I
or plainclothes security personnel and done it as well as it could be done; thank the gentleman for yielding.
whose function includes the direct however, to vote for this, you first Again, to clarify the amendment, the
protection of the public in specific have to believe that the gadget works. amendment does not require that any-
ways, including only-and it is a limit- You first have to accept that there is one use a polygraph, but only that the
ed list-including only the health or universal physiological response Federal law not prohibit the use of the
safety of any State or political subdivi- shared by all liars, that they all per- polygraph, just as in the last amend-
sion and, if that involves the transmis- spire about the same rate, their respi- ment.
sion or distribution of nuclear power ration increases when they start lying, I do want to call the gentleman's at-
or electric power, public water supply all at about the same rate; the heart tention to the last paragraph of the
facilities, shipments, or storage of ra- rate increases by a certain amount. amendment on page 2 beginning on
dioactive or other toxic waste materi- You have to accept that this metal line 19. It is a limiting paragraph. It
als, and public transportation. The box can pick out the liars from the limits the rest of the amendment, and
other possibility is the transmittal or nonliars, and there is no scientific evi- I will read it very slowly.
protection of currency or negotiable dence that that is true. The exemption provided under this sub-
securities or precious commodities or Now, specifically with regard to the section shall not apply if the test is adminis-
instruments. language that the gentlewoman has tered to an employee or prospective employ-
The Roukema amendment-what I drawn, I would say that I do not want ee who is not or would not be employed to
am trying to bring to the attention of my colleagues to misunderstand this protect facilities, materials, operations, or
assets referred to in paragraph tl).
the House is that it is not unlimited. It amendment. It is not limited to just se-
is a very narrow amendment that only curity guards guarding, for example, So in fact the amendment does not
applies to armored car personnel and nuclear powerplants. In fact, it is not apply to people who are not used to
security personnel involved in those limited to just security guards at all. It protect those facilities. It is only those
activities. also includes the engineer who is employees who are engaged in the
Further, the Roukema amendment working quietly in the laboratory direct protection of those facilities.
says that the result of that polygraph trying to develop a new circuit system The amendment does not cover secre-
cannot be used as the sole determi- to be used for alarm systems or for taries and gardeners and maintenance
nant, and further the results cannot electronic fences. Those people if they workers and people who raise the flag,
be used on an employee unless the em- want a job, those engineers, could as has been previously discussed.
ployee or prospective employee is em- have to undergo a lie detector test. The CHAIRMAN. The time of the
ployed directly to protect the facili- This amendment is not just limited gentleman from Montana has expired.
ties, materials, operations, or assets to certain security guards who are (By unanimous consent, Mr- Wm-
that are set out in the bill. So the guarding airports. It also includes that LIAMS was allowed to proceed for I. ad-
Roukema amendment is drafted so electrician who comes by your house ditional minute.)
carefully, it seems to me. as to elimi- to install security alarm, just the elec- Mr. WILLIAMS. Mr. Chairman, I
nate all the arguments that have been trician is also included In this amend- understand rthat
I would only read Is pre-
used against amendments In the past. ment. to the
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November 4, 1987 CONGRESSIONAL RECORD
gentleman the first paragraph, subsec-
tion (d), which indicates that the lie
detector test can be used, quoting
from the amendment now, on employ-
ees or prospective employees of a pri-
vate employer whose primary business
purpose consists of providing armored
car personnel, personnel engaged in
the design, installation, and mainte-
nance of security alarm systems.
Mrs. ROUKEMA. Mr. Chairman,
will my good friend, the gentleman
from Montana, yield?
Mr. WILLIAMS. Yes; I am pleased
to yield to the author of the amend-
ment, the gentlewoman from New
Jersey.
01520
Mrs. ROUKEMA. Mr. Chairman, I
believe the gentleman from Montana
[Mr. WILT A sl should read that first
section and that should be understood
in conjunction with the exemption
provided on page 2, section 3, line 12.
The CHAIRMAN. The time of the
gentleman from Montana (Mr. WIL-
LIAMS) has expired.
(On the request of Mrs. ROUKEMA,
and by unanimous consent, Mr. WIL-
LIAMS was allowed to proceed for 1 ad-
ditional minute.)
Mrs. ROUKEMA. Mr. Chairman,
will the gentleman yield?
Mr. WILLIAMS. I yield to the gen-
tlewoman from New Jersey.
Mrs. ROUKEMA. Section 3 at line
12 on page 2 says, "the exemption pro-
vided under this subsection shall not
apply," and then are two sections. As
the gentleman from Texas [Mr. BART-
LETT] has said, part B is the limiting
section. That limits the application to
only those personnel that are directly
involved.
I think the gentleman from Mon-
ta.na [Mr. WILLIAMS] should remember
that last year we worked together on
the development of this amendment
and we had hoped together to reach
that kind of an agreement that would
be limiting and would be very specific
as to its application.
Mr. WILLIAMS. Mr. Chairman, re-
claiming my time, finally I again want
to express my and the committee's op-
position to this amendment which
would be the beginning of opening up
this bill, and once the opening up of
this legislation starts for security
guards or electricians or the people
who maintain or prepare alarm sys-
tems, there will be no stopping it.
I urge my colleagues to vote "no."
The CHAIRMAN. The question is on
the amendment offered by the gentle-
woman from New Jersey [Mrs. RoUKE-
MA).
The question was taken; and the
Chairman announced that the ayes
appeared to have it.
RECORDED VOTE
Mr. WILLIAMS. Mr. Chairman, I
demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic
device, and there were-ayes 210, noes
209, not voting 14, as follows:
Rion No. 408)
AYES -210
Anderson Hansen Fasbayan
Andrews Hastert Petri
Archer Hatcher Pickett
Armey Hayes (LA) Pickle
Badham Hefley Pottier
Baker Hefner Price (NC)
Ballenger Herger Quillan
Barnard Hiler Ravenel
Bartlett Holloway Ray
Barton Hopkins Regula
Bateman Horton Rhodes
Bennett Houghton Richardson
Bentley Huckaby Ritter
Bereuter Hughes Roberts
Bilirakis Hunter Roe
Bliley Hutto Rogers
Boulter Hyde Rose
Broomfield Inhofe Roth
Buechner Ireland Roukema
Bunning Jenkins Rowland (GA)
Burton Jones (NC) Sa*J
Byron Jones (TN) Saxton
Callahan Rasich Schaefer
Cardin Kolbe Scbeuer
Chandler Konnyu Schuette
Chapman Kyl Schulze
Chappell Lagomarstno Sensenbrenner
Cheney Lancaster Shaw
Clarke Latta Shumway
Coats Lent Shuster
Coble Lewis (CA) Stsisky
Coleman (MO) Lewis (FL) Skeen
Combest Lightfoot Slattery
Comer Livingston Slaughter (MY)
Craig Lloyd Slaughter (VA)
Daniel Lott Smith (NE)
Dannemeyer Lowery (CA) Smith (NJ)
Darden Lujan Smith (TX)
Daub Luken, Thomas Smith. Denny
de Is Garza Lukens. Donald (OR)
DeLay Lungren Smith, Robert
DeWine Mack (NH)
Dickinson Madigan Smith. Robert
DioGuardi Marlene (OR)
Dorman (CA) Martin (IL) Snowe
Dreier Martin (NY) Solomon
Edwards (OK) Mazzoli Spence
Emerson McCandless Spratt
English McCollum Stangeland
Erdreich McCurdy StenhoIm
Pawetl McDade Stump
Fields McEwen Sundquist
Fish McGrath Sweeney
Flippo McMillan (NC) Swindall
Foglietta Meyers Tauzin
Ford (TN) Mites Taylor
Frenzel Michel Thomas (CA)
Gallegly Miller (OH) Thomas (GA)
Gallo Molinari Torricelli
Gekas Montgomery Upton
Gingrich Moorhead Valentine
Doodling Morrison (WA) Vander Jagt
Gradison Murphy Vucanovich
Grant Myers Walker
Green Nelson Weber
Gregg Nichols Weldon
Gunderson Nielson Whittaker
Hall (OH) Ortiz Wolf
Half (Tx) Oxley Wortley
Hamilton Packard Wylie
Hammerschmidt Parris Young (FL)
NOES-209
Ackerman
Brennan
Derrick
Akaka
Brooks
Dicks
Alexander
Bruce
Dingell
Annunzio
Bryant
Dixon
Anthony
Bustamante
Donnelly
Applegate
Campbell
Dorgan (ND)
Aspin
Carper
Dowdy
Atkins
Carr
Downey
AuCoin
Clay
Durbin
Bates
Clinger
Dwyer
Beilenson
Coelho
Dymally
Berman
Coleman (TX)
Dyson
Beiill
Collins
Early
Bilbray
Conte
Eckart
Boehlert
Conyers
Edwards (CA)
Boggs
Cooper
Espy
Boland
Coughlin
Evans
Bonior
Coyne
Fascell
Bonker
Crockett
Fazio
Borski
Davis (IL)
Peighan
Bosco
Davis (MI)
Flake
Boucher
DeFazio
Florio
Boxer
Dellums
Foley
H 9565
Ford (MD
MacKAy
Sabo
Prank
Manwn
savage
Frost
Markey
Sawyer
Garcia
Martinez
Schneider
Gaydos
Matsui
Schroeder
Oefdenaon
Mavroules
Schumer
Gibbons
McCloskey
Sharp
Oilman
McHugh
Shays
Glickman
McMullen (MD)
Sikorski
Gonsalez
Mfume
Skaggs
Gordon
Miller (CA)
Skelton
Grandy
Miller (WA)
Smith (FL)
Gray (IL)
Moakley
Smith (IA)
Gray (PA)
Mollohan
Solari
Ouarial
Moody
at Germain
Harris
Morelia
Staggers
Hawkins
Morrison (CT)
Stallings
Hayes (IL)
Mraaek
Stark
Henry
Murtha
Stokes
Herte)
Nagle
Studds
Hochbrueckner
Hatcher
Swift
Royer
Neal
Synar
Hubbard
Nowak
Ta)Ion
Jacobs
Oakar
Tauke
Jeflords
Oberatar
Torres
Johnson (CT)
Obey
Towns
Johnson (SD)
Olin
Traficant
Jontz
Owens (NY)
Traxler
Kanjoraki
Panetta
Udall
Kasienmeler
Patterson
Vento
Kennedy
Pease
Visclosky
Kennelly
Felon
Volkmer
Kildee
Penny
Walgrrn
Kleczka
Pepper
Watkins
Kolter
Perkins
Waxman
Kostmayer
Price (IL)
Weiss
LaPalce
Purcell
Wheat
Lantos
Rahal)
Whitten
Leach (IA)
Rangel
Williams
Lehman (CA)
Ridge
Wilson
Lehman (FL)
Rinaldo
Wise
Leland
Robinson
Wolpe
Levin (MI)
Rodino
Wyden
Levine (CA)
Rostenkowski
Yates
Lewis (GA)
Rowland (CT)
Yatron
Lipinski
Roybal
Young (AK)
Lowry (WA)
Russo
NOT VOTING-14
Biaggi
Gephardt
Mineta
Brown (CA)
Howard
Owens (UT)
Brown (CO)
Kaptur
Roemer
Crane
Kemp
Stratton
Duncan
Leath (T%)
^ 1530
The Clerk announced the following
pair:
On this vote:
Mr. Brown of Colorado for, with Ms
Kaptur against.
Messrs. DERRICK. MORRISON of
Connecticut, AuCOIN, HAYES of Illi-
nois, and PANETTA changed their
votes from "aye" to "no."
Messrs. ANDREWS, MOORHEAD,
BE LA GARZA, and FLIPPO changed
their votes from "no" to "aye."
So the amendment was agreed to.
The result of the vote was an-
nounced as above recorded.
AMENDMENT OFFERED By MRS. ROUKEMA
Mrs. ROUKEMA. Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mrs. RouKEMA:
Page 8, after line 13. insert the following
new subsection:
(d) ExEMPTToit FOR FEDERALLY REGULATED
FINANCIAL IASTITUTIOPS.-(1) Subject to
paragraph (3), this Act shall not prohibit
the use of a lie detector test on employees
or prospective employees of a financial insti-
tution (as defined in section 7(4)).
(2) The exemption provided under para-
graph (1) shall not diminish an employer's
obligation to comply with-
(A) applicable State and local law, and
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H 9566
CONGRESSIONAL RECORD - HOUSE November 4, 1987
(B) any negotiated collective bargaining
agreement, which limit or prohibit the use
of lie detector tests on such employees,
t3) The exemption provided under this
subsection shall not apply if the results of
an analysis of lie detector charts are used as
the sole basis upon which an employee or
prospective employee is discharged. dis-
missed, disciplined in any manner, or denied
employment or promotion. Nothing in this
paragraph shall be construed to prohibit
the temporary reassignment of any employ-
ee for such period as is necessary for a
speedy and thorough investigation concern-
ing potential criminal activity which in-
volves the operations of the employer.
Page 9, line 2, strike "and".
Page 9, line 5, strike the period at the end
of such line and insert "; and".
Page 9, after line 5, add the following new
paragraph:
(4) the term "financial institution"
means-
(A) an insured bank, as defined in section
3(h) of the Federal Deposit Insurance Act
(12 U.S.C. 1813(h));
(B) an insured institution, as defined In
section 408(aX1) of the National Housing
Act (12 U.S.C. 1730a(a)(1) );
(C) an insured credit union, as defined in
section 101(7) of the Federal Credit Union
Act (12 U.S.C. 1752(7)); or
(D) an exchange, broker, dealer, invest-
ment company. securities information proc-
essor, clearing agency, municipal securities
broker, municipal securities dealer, govern-
ment securities broker, or government secu-
rities dealer, as such terms are defined in
section 3(a) of the Securities Exchange Act
of 1934 (15 U.S.C. 78c(a)), or an exchange
member subject to section 15(e) of such Act
(15 U.S.C. 78o(e)).
Mrs. ROUKEMA (during the read-
ing). Mr. Chairman, I ask unanimous
consent that the amendment be con-
sidered as read and printed in the
RECORD.
The CHAIRMAN. Is there objection
to the request of the gentlewoman
from New Jersey?
There was no objection.
Mrs. ROUKEMA. Mr. Chairman, I
offer an amendment to exempt feder-
ally insured or federally regulated fi-
nancial institutions from the bill's ban
on the use of polygraphs. This amend-
ment has the same logic and common-
sense as the previous exemptions.
As you know, last year the House
very nearly passed an exemption for
financial institutions. The amendment
failed because some felt it was too
broad-it included pawnbrokers, tele-
graph companies, and travel agencies.
I recognize these Members concern
with confining any such exemption to
those institutions which truly have a
compelling need for retaining the use
of the polygraph. Therefore, I empha-
size that I have carefully drafted my
amendment to apply only to federally
insured banks and financial institu-
tions and stock exchanges and invest-
ment companies regulated pursuant to
the Securities Exchange Act.
American financial institutions
handle an enormous amount of cash
and securities every day, with many
employees-from the lowest clerk to
the highest executive-having access
to these funds. Unfortunately, losses
from internal fraud and embezzlement
are enormous. According to the FBI,
over $1.1 billion was lost by banks, sav-
ings and loans, and credit unions last
year. The sad fact is that over 80 per-
cent of these losses have been attrib-
uted to employee theft. Employees, in
fact, are responsible for greater losses
than all robberies, burglaries, and lar-
cenies combined. What's worse, these
losses have greatly increased in the
last few years. In 1981, the losses to-
taled less than $200 million; by 1986,
they shot up to over a billion dollars.
With such an alarming trend taking
place, it would be totally irresponsible
for us to prohibit the use of a tool
which helps detect embezzlers, par-
ticularly when you realize that today's
computerized operations make it possi-
ble to divert millions of dollars in an
instant if the confidentiality of com-
puter codes is compromised.
These are the exact reasons why fi-
nancial institutions are highly regulat-
ed by the Federal Government. Let me
give you some examples of the exten-
sive regulation.
The Bank Protection Act of 1968 re-
quires the establishment of compre-
hensive security programs.
The Federal Deposit Insurance Act
prohibits federally insured banks from
employing anyone convicted of "any
criminal offense involving dishonesty
or a breach of trust" without first ob-
taining the written approval of the
FDIC.
SEC regulations require fingerprint-
ing of securities industry personnel to
help identify people with criminal
records.
Other Federal laws and regulations
require the investigation of suspected
thefts, embezzlements, unexplained
shortages of funds, and so forth. Find-
ings must be reported to the Federal
Reserve, Comptroller of the Currency,
or FDIC. Reports must also be made
to the FBI and other law enforcement
agencies.
I ask you: How can the Federal Gov-
ernment on the one hand place such
stringent duties and requirements on
financial institutions, and on the other
hand prohibit the use of one of the
methods of carrying out these require-
ments?
For these reasons the Chairman of
the Securities and Exchange Commis-
sion has written a letter of support for
this amendment.
For these reasons the Chairman of
the Federal Deposit Insurance Corpo-
ration has written a letter of support
for this amendment.
I know many of you are concerned
about the validity of polygraph exams.
You are reluctant to exempt specific
industries because of the basic ques-
tion of whether or not polygraphs are
valid indicators of honesty. I point
out, however, that often in the law we
use a balancing test. We recognize that
the need for something is so great that
we use the best helpful means at our
disposal, even though it may not be
perfect. Such a balancing test has al-
ready been recognized by the sponsors
of this bill because exemptions have
been included for all State, local, and
Federal Government employers and
for defense and FBI contractors. Fi-
nancial institutions similarly have a
compelling need to use the polygraph
in certain situations. With the events
occurring in the stock market in the
last few weeks, this is no time to enact
any laws which could raise the least
doubts about the securities industry or
other financial institutions.
I urge your support.
^ 1545
Mr. WYLIE. Mr. Chairman, I move
to strike the last word, and I rise in
support of the amendment.
(Mr. WYLIE asked and was given
permission to revise and extend this
remarks.)
Mr. WYLIE. Mr. Chairman, I am
glad to rise in support of the amend-
ment offered by my colleague from
New Jersey, Mrs. Roulixn&s. This
amendment which would exempt fi-
nancial institutions from H.R. 1212's
ban on the use of polygraph tests is an
appropriate measure to protect the in-
tegrity of savings, lending, and trading
institutions that are at the heart of
our economy.
Through membership on the Bank-
ing Committee I have learned that em-
ployees of banks and other securities
houses handle enormous amounts of
cash and other valuable items each
day and that there are many possibili-
ties for fraud, embezzlement and
theft. Just a few statistics show the
scope of the problem.
The FBI estimates that banks, sav-
ings and loan, and credit unions lost
more than $1.1 billion in 1986 through
employee losses from banks, savings
and loan, and credit unions. Losses at-
tributable to employees are greater
than losses caused by robberies, bur-
glaries, and larcenies. In fact, the dif-
ference is overwhelming. Over 80 per-
cent of the losses that these financial
institutions suffered were the result of
employee theft.
As the gentleman from Kansas men-
tioned a little earlier, we are deciding
here where and when the polygraph
test is appropriate. The ability to use
all available screening and investiga-
tive tools is critical to maintaining se-
curity at financial institutions.
As Mrs. R0uKEMA mentioned a little
earlier, both the Chairman of the
FDIC, Mr. Seidman and the Chairman
of the SEC, Mr. Ruder, have recog-
nized the importance of employee
theft and have stated their support for
an exemption that would allow finan-
cial institutions to use the polygraph.
We considered and almost passed a
similar amendment last year. The
problem with the amendment that was
offered last year was that it was too
broad; it would have granted exemp-
tions to travel agents and pawn bro-
kers among others. These businesses
are not federally insured and they are
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CONGRESSIONAL RECORD - HOUSE H 9567
not federally regulated like banks and
other savings institutions.
This amendment Is much more care-
fully drawn and narrowly drafted.
There is a Federal nexus here. The
amendment covers only financial insti-
tutions insured under Federal law or
regulated under the Securities and Ex-
change Act.
I was once a prosecuting attorney
myself and I can tell you that a poly-
graph test can be useful in helping
solve crime. I believe that use of the
polygraph test can be an important
and proper security measure and can
be used as an ounce of prevention in
these cases. So I enthusiastically sup-
port the amendment and urge an
"aye" vote on the amendment.
Mr. BARNARD. Mr. Chairman, will
the gentleman yield?
Mr. WYLIE. I yield to the gentle-
man from Georgia.
Mr. BARNARD. I thank the gentle-
man for yielding.
Mr. Chairman, I rise in support of
the amendment offered by my col-
league from New Jersey allowing fi-
nancial institutions to continue to uti-
lize polygraph examinations as one
tool in their continued fight against
white collar crime, crime which all too
often places a heavy burden on the
safety and soundness of our Nation's
financial institutions when they can
least afford it.
Since 1984, the subcommittee which
I chair has held extensive hearings on
insider abuse and criminal misconduct
in financial institutions and found
that losses from fraud and other crimi-
nal activities have amounted to bil-
lions of dollars. Many of these losses
occur at smaller institutions which are
the least able to afford them and
which can suffer the greatest impact.
In 1986, over one-third of the 138 bank
failures that occured were due to
fraud and embezzlement, according to
FBI statistics. These losses occur at
the upper management levels and are
not by any means confined to lower
echelon employees. Polygraphs are
needed for all levels of employment in
the financial services industry. In
many of the fraud cases, a polygrapyh
exam would have indicated the need
for further research of a person's
background.
The Roukema amendment is nar-
rowly drawn and consistent, with the
exemptions already included in the
bill for various governmental agencies
and private companies that are nation-
al security contractors. No industry
has a higher fiduciary responsibility
than our federally insured financial
institutions. I urge my colleagues to
support the amendment and the avail-
ability of polygraphs as one arrow in
the quiver of defenses against criminal
misconduct in our financial services in-
dustry.
Mr. WYLIE. I thank the gentleman
for his contribution.
Financial institutions do occupy a
very special place in our economy.
Banks do have the responsibility to
maintain appropriate security and I
think this very carefully, well-drawn
amendment will help them with that
charge.
Mr. Chairman, I yield back the bal-
ance of my time.
Mr. McCANDLESS. Mr. Chairman, I
move to strike the requisite number of
words and I rise in support of the
amendment.
Mr. Chairman, as a member of the
Banking Committee, I support the
gentlewoman from New Jersey's im-
portant amendment to create an ex-
emption for financial institutions such
as banks, savings and loan, and the se-
curity industry. I rise in support of
this measure because the financial in-
stitutions protected by the amend-
ment are a distinct part of our econo-
my.
Deposits at banks, savings and loan,
and credit unions are insured by the
Federal Government. Losses at these
institutions are therefore costly to the
Federal Government. That is why the
Government imposes security require-
ments on savings institutions. The se-
curity requirements are strict and ex-
acting. To comply with Federal regula-
tions, a great many savings institu-
tions use the polygraph as one impor-
tant element in their overall security
program.
Similarly, the securities industry is
heavily regulated by the Federal Gov-
ernment. For instance, securities firms
are prohibited from hiring anyone
who has a felony conviction. There-
fore, securities firms find that the
polygraph is a useful tool in complying
with Federal Law.
In light of the Federal regulatory re-
quirements on financial institutions, it
is particularly noteworthy that the
heads of the principal regulatory
agencies, the FDIC and the SEC, have
written to the Members of the House
expressing their support for the Rou-
kema amendment to exempt financial
institutions from H.R. 1212.
In the final analysis, for the Govern-
ment to require security programs at
financial institutions, and then take
away those institutions' ability to use
a vital security tool would be nonsensi-
cal. For this reason, I strongly support
the amendment under consideration,
and I urge you to join me.
Mr. MILLER of Washington. Mr.
Chairman, I move to strike the requi-
site number of words.
(Mr. MILLER of Washington asked
and was given permission to revise and
extend his remarks.)
Mr. MILLER of Washington. Mr.
Chairman, as a cosponsor of H.R.
1212, I hope that we do not amend this
bill to death.
Let us remember the polygraph ma-
chine does not measure mendacity, it
measures stress. The wildly misnamed
lie detector cannot detect lies or for
that, matter the truth. Yet there are
those who argue that the jobs, reputa-
tions, and integrity of thousands of
truthful Americans workers should
depend on the outcome of these stress
tests.
Mr. Chairman, courts of law in this
country protect criminal defendants
from taking these tests. Yet there are
those who would compel thousands of
law abiding American workers to
submit to these discredited proceed-
ings.
Finally, Mr. Chairman, every Ameri-
can enjoys constitutional protection
from self-incrimination and arbitrary
searches and seizures devoid of proba-
ble cause. Yet there are those who
would play with this most basic consti-
tutional right to privacy in order to
use a pseudo technology only slightly
more accurate in assessing truth than
a Ouija board.
I urge my colleagues to support the
passage of H.R. 1212.
Mr. PERKINS. Mr. Chairman, I
move to strike the requisite number of
words.
Mr. Chairman, this entire discussion
today strikes me as pretty ludicrous.
The question is: Do polygraphs, do lie
detectors work or not? They do not
work.
I was an attorney in the real world
for a period of time. Some people here
have had that same experience.
I was a criminal attorney. I had
people who dealt with things like
murder, arson, drugs, kidnaping, you
name it, at one time or another I prob-
ably either defended or prosecuted
them in some fashion or another.
The question became time and time
again what happened if they took the
lie detector test?
Let me tell you, the people that took
the lie detector test, those guys, those
people were smooth, they were able to
stand there with steel nerves and lie,
control their breathing. They got
through the thing.
Time and time again I would see the
police drop the case on the outcome of
what happened with that lie detector
test and then they would come back
later and say, "Yeah, I did it."
0 1605
What we are talking about with this
entire exercise is a stress test. We are
talking about whether or not you can
handle that stress test or not. We are
not talking about a lie detector test.
That is a misnomer. So this entire ex-
ercise we are going through today is
just a complete exercise in futility.
Mr. GUNDERSON. Mr. Chairman,
will the gentleman yield?
Mr. PERKINS. I yield to the gentle-
man from Wisconsin.
Mr. GUNDERSON. Mr. Chairman. I
appreciate my good friend, the gentle-
man from Kentucky, yielding to me.
Mr. Chairman, I am just curious
about this. If the lie detector never
works, why did the gentleman vote in
the majority when we created a per-
manent polygraph program for nation-
al defense agencies?
Mr. PERKINS. I take no issue at all
with that, and quite frankly, if I voted
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H 9568 CONGRESSIONAL RECORD - HOUSE November 4, 198
that way, I made a big mistake. I will and most polygraphers do not have read-something that, 80 percent of
stand here and tell that to the gentle- either the training or the background the time, 90 or 70 percent of the time,
man. in psychiatry or anything else to un- is right and is accurate, and if you do
Mr. GUNDERSON. Mr. Chairman, derstand the emotions of the person have a good polygraph test giver, a
will the gentleman yield again? they are testing. polygraph machine expert, you can
Mr. PERKINS. I will yield further This country does not have stand- produce results for screening and pre-
to the gentleman, and I hope the gen- ards for polygraphers, and the Darden screening of employment applications
tleman extends the same courtesy to amendment would not create those that will aid, not give a definitive
me when my time expires. kinds of standards that require poly- answer but aid the person making em-
Mr. GUNDERSON. I will get more graphers to be trained or educated and ployment decisions in making that de-
time for the gentleman. have the background to do that kind cision.
Mr. PERKINS. All right. of a job that needs to be done in evalu- I think the question is not one of
Mr. GUNDERSON. Why did the ating what that person is going whether or not we totally do away
gentleman on June 16 of this year vote through under the polygraph. with the polygraph examination, but
with the majority again when an So where you and I are human and what areas do we limit it to. That is
amendment was offered by the gentle- make mistakes and we can admit it, what this legislation is all about. What
man from Florida [Mr. MICA] dealing the polygrapher, because he depends restrictions do we place on it? What
with the Department of State authori- on that machine, does not do it; is that areas do we limit it to?
zation bill to allow the use of the poly- not right? It was already decided when this bill
graph and other means of investiga- Mr. PERKINS. I am sure that I came forward that the Defense De-
tion for embassy and diplomatic secu- agree with my colleague. partment and the national security
rity? If this machine is so bad, why did Mr. Chairman, I would like to say areas of our country were still going to
the gentleman vote for that? Anybody this in closing because I realize a lot of be able to use this machine. I think if
can make a mistake once, but twice Members want to continue in this ex- this body had determined that this
the gentleman voted for it. Why? ercise in futility. machine was determined
not valuable
Mr. PERKINS. Let me tell the gen- The CHAIRMAN. The time of the in any way, we would not have even
tleman that the machine does not gentleman from Kentucky (Mr. PER- agreed to that. Though some do not
work. xixs] has expired. with it and there are isolated in-
in-
Mr. GUNDERSON. But I ask, why? (By unanimous consent, Mr. PER- agre those speaking today who
Mr. PERKINS. The gentleman can KINS was allowed to proceed for 2 addi- stances e ct not think those speaking have today at who we ought to it all,
read idiosyncrasies in my record, and I tional minutes.) deci-
fact say that I make mistakes. But the Mr. PERKINS. Mr. Chairman, this I hhink k The body the body as aI made think, that ddeci-
We just e y are has also, ls think, decid-
fact of the matter is that the machine is, as I say, an exercise in futility. If sion. . T e b. exceptions does not work. Consistently, when you we want to impinge on the American that
does one o a few minutes ago.
look and see the results of the tests, public with a divining rod and go in close vote, but it was some-
work. you will find the machine does not and try to take away constitutional It t thing was a a decided vote, the last was ome-
work. rights based on the flip of a coin, we d decided this time, that Congress
in the
I saw these clients who would come can go ahead and do it. We have the and ci
armored
in and literally stand there and tell me ability to do it by passing these case we a decided
security guards, thguards is those and who carry
they committed the crime, and the amendments here today. personnel
police just did not even bother to con- But if we want to use legitimate in- money and are involved in guarding
tinue afterwards with the investiga- vestigation techniques, we could get private businesses, we ought to screen
tions, after they got off, because the out and do some hard work, we could those applicants or at least allow the
police relied on this test. get out and find some good evidence as polygraph to be used by those who
This test is an excuse for laziness. It to whether or not this person should screen applicants and make employ-
is an excuse for not investigating and be hired in a particular industry or not ment decisions.
not paying any attention to the results and find some good evidence as to So the issue here is on the amend-
and really do some more investigation. whether this person is an individual ment offered by the gentlewoman
This entire series of amendments, in we would want working for us or not from New Jersey [Mrs. ROUKEMA] as
my opinion is a farce. The bill is an ex- Let us not rely on the flip of a coin. to whether or not we should give this
cellent bill because it says this is a The machine does not work, and it is same exemption that we just gave to
farce. We cannot allow this as a divin- not admitted in any criminal court in the security guards to the banks, the
ing rod, and that is what we are talk- this country. It Is ridiculous. I ask the savings and loans, the credit unions,
ing bout, a divining rod. That is the Members to vote against all these and some security industry folks. That
entire situation. amendments. Let us pass the bill and is a question of judgment, a question
Mr. MARTINEZ. Mr. Chairman, will give the American people some protec- of balance and reasonableness on
the gentleman yield? tion here. That is what we need. whether or not we want to make this
Mr. PERKINS. I am pleased to yield Mr. McCOLLUM. Mr. Chairman, I particular exception. It is not a ques-
to the gentleman from California move to strike the requisite number of tion of whether the polygraph works
Mr. MARTINEZ. Mr. Chairman, words, and I rise in support of the or does not work. It is not a question
what I hear the gentleman saying is so amendment. either of whether or not somebody is
evident, if we would really listen to (Mr. McCOLLUM asked and was given harassed or whether there can be
what we have all said. Nobody has said permission to revise and extend his re- abuse, because indeed there can be,
that this machine is a perfect machine marks.) and there ought to be restrictions and
other than in measuring nerves and Mr. McCOLLUM. Mr. Chairman, I limitations and guidelines, maybe
stress. The problem is that there is have listened to a lot of this debate more than those that are here. Many
that human factor the gentleman is and participated in part of it this of us have argued for those. The ques-
talking about. afternoon, and I do not think any of tion, though, now that we ought to ad-
The gentleman made a mistake in us who advocate some exceptions to dress ourselves, it seems to me, is,
the way he voted, and he admits it, this bill believe that the polygraph is a should we grant this exemption to the
but the polygrapher never admits perfect machine. We do not believe banking community, to the financial
when he makes a mistake because he that the system is going to be error- services community, as narrowly de-
always says the machine said so and less, and we do not think the way it is fined?
the machine is a perfect tool because conducted in the cases around the I offered an amendment similar to
the machine is infallible. But where country today is always right. But the this a Congress ago. It was broader. It
the machine may not be infallible in fact is that it is, by the testimony of was defeated by about 10 votes. It
Its readings, he is infallible because he those who are experts in this-at least seems to me the complaints made by a
is trained to read the results of that, a good number of them that I have few Members about that ought to
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November 4, 1987
CONGRESSIONAL RECORD - HOUSE H 9569
bring them aboard, and we ought to
pass this amendment.
The fact is that the money that we
are concerned about being embezzled
or taken away by the push of a button
in this electronic world of banking
today is not the banks' money. It is my
money, it is your money, it is the
money of the constituents of every
Member of this body. We are the
people and our constituents are the
people who deposit our funds in the
banks of this country, in the savings
and loans, in the credit unions, and
with the securities industry people,
and we are the ones as a whole, the
whole public, that have to be worried
that somebody is going to go out and
take this money by the push of a
button somewhere.
I submit to my colleagues that we
have a paramount fidicuiary duty in
this case as Congressmen and Con-
gresswoman to pass this exception to
allow this tool to be one more of a
number used by those in employment,
making decisions in the financial serv-
ices area so they can have the oppor-
tunity of making better decisions on
which 10 out of 100 people who apply
for a banking job are going to be
hired. This will not necessarily be the
deciding criteria, but it ought to be a
tool available if we are going to get
some of this fraud out of the industry.
Let me make one other point. In the
banking world today, unfortunately,
there is another great abuse that some
employees take of our money system,
and we all too well know about this if
we think about if for a minute. That is
in the area of drug trafficking and
money laundering. We passed a major
drug trafficking bill last year, trying
to get at that tremendous problem for
our citizenry. As part of that, we
passed a bill dealing with the new
crime of money laundering. That
cannot possibly be enforced or it
cannot work if we do not have a
system of screening out the people in
the financial services institutions who
might be prone to be involved in the
shady transactions that are involved
in the process of hiding their sources
of crime and money dealing in drugs.
I submit to my colleagues, if we
really want to fight drug trafficking,
we have got to get at it in a number of
ways, and one of the key ways is to
stop money laundering.
The CHAIRMAN. The time of the
gentleman from Florida [Mr. M000L-
t.UM] has expired.
(By unanimous consent, Mr. McCot,-
LUM was allowed to proceed by 2 addi-
tional minutes.)
Mr. McCOLLUM. Mr. Chairman, if
we are going to be effective in fighting
the war on drugs, it requires that we
have at our disposal not only the law
on the books to make something a
crime but the ability on the part of
those who are managing our financial
institutions to screen out those who
might become employees who would
push those computer buttons around
to aid and abet the criminal element
who would like to pass millions of dol-
lars through our institutions in vari-
ous ways, although we have now
passed laws saying that they should
not. In other words, we are not going
to catch all those people simply be-
cause we have a law on the books. We
have got to have honest people at the
teller window, we have got to have
honest people dealing with the funds,
and its seems to me it makes no sense
to pass a bill like this one and pass an
exception to it that says the guard
who is transporting the money be-
tween two banks is going to be
exempt, or the employer of that guard
is exempt, but the teller or the person
at the computer desk or the computer
station may not be someone the em-
ployer has screened as well. That
makes no sense to me at all if we are
going to protect the financial interests
of our citizenry.
Mrs. ROUKEMA. Mr. Chairman,
will the gentleman yield?
Mr. McCOLLUM. I am glad to yield
to my colleague, the gentlewoman
from New Jersey.
Mrs. ROUKEMA. Mr. Chairman, I
thank the gentleman for yielding to
me.
I wanted to commend the gentleman
from Florida (Mr. McCot.tuM), a dis-
tinguished member of the Committee
on Banking. Finance and Urban Af-
fairs, and one who worked very hard
on this amendment last year.
The gentleman alluded to a point
that should be stressed for the Mem-
bers, and it is a compelling reason for
passing this amendment. The gentle-
man alluded to the fact that we are
talking about banks that have federal-
ly insured deposits. This is full faith
and credit of the U.S. Government,
and ultimately it may actually back up
to the taxpayers.
This is a compelling reason why this
is a legitimate inclusion in this bill.
Second, the Security Exchange Act
controls here. We have highly regulat-
ed institutions, and they should be
under the provisions of this act and
should be given all the tools they
need.
Mr. McCOLLUM. The gentlewom-
an's amendment to exclude certain
banks, financial institutions, certain
securities outfits needs to be passed, if
we are going to have a truly fair bill to
protect the interests of the American
deposit holder in our banking institu-
tions.
Mr. MARTINEZ. Mr. Chairman, I
move to strike the requisite number of
words.
I doubt very much that the banking
institution is going to change its way
of doing business or reduce any of its
losses that take place because of poly-
graphing employees.
The banking institution has ade-
quate measures now to screen employ-
ees, test employees for employment
there.
I have had family members who
have worked for the banks, and I have
some familiarity with their procedures
for hiring. I do not think they really
need the polygraph. It will not do any-
thing for them.
The kind of abuse that the gentle-
man from Florida is concerned about
is taking place at a higher level, and
where those people are able to make a
decision whether they would use poly-
graphs on that level of employee or
not, and I doubt very much if they
would, if they are going to be nefari-
ous about their business operations
and contemplate anything that would
be illegal. That is a moot point.
It gets back down to the basic thing
we have been arguing. Is there enough
margin of error in the procedure that
it merits penalizing people in applying
for employment, and does it merit in-
vading people's rights?
Does it merit violating civil rights,
people having to prove themselves in-
nocent when they have not been ac-
cused of a crime, and all of the things
we have argued, and we are beginning
to get redundant on?
I urge the Members to oppose the
amendment.
Mr. PARRIS. Mr. Chairman, I move
to strike the requisite number of
words.
(Mr. PARRIS asked and was given
permission to revise and extend his r6-
marks.)
Mr. PARRIS. Mr. Chairman, I want
to take this time to congratulate the
gentlewoman from New Jersey on her
amendment.
It is very carefully drawn and is an
important improvement and a contri-
bution to this legislation.
Let me quickly reiterate that this
measure would exempt federally in-
sured banks, credit unions, and securi-
ties firms regulated by the Securities
and Exchange Commission from this
legislation. It does not preempt local
or State law on the use of these kinds
of tests, and cannot be used as the sole
basis for an employment decision; but
it is and should be an important tool
in that process.
Let me ask the Members to use a
little common sense here. The famous
bank robber, Willie Sutton, when
asked, why do you rob banks? An-
swered: "Because that is where the
money is."
Where do you suppose the money is
in our society? Where do you suppose
the people that are inclined to steal
money from an institution will find it?
In an insured bank or other financial
institution in this Nation is where.
They have the opportunity to make
enormous impacts on not just the
system itself but on individual deposi-
tors financial assets, so I suggest to
the Members, what more logical place
to use a lie detector test than in an in-
stitution where there are huge
amounts of cash laying around all over
the place, with an opportunity for a
person criminally inclined to take ad-
vantage of that fact.
They do not make nuts and bolts in
banks. They deal with money, and
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I19570
CONGRESSIONAL RECORD - HOUSE Noceriber 4, 1937
they ought to be able to use polygraph
tests to determine whether or not as
an element of an employment deci-
sion, this or that applicant for employ-
ment is the kind of person that ought
to be given the opportunity to be in
that environment, and to be exposed
to that situation.
I would simply emphasize for this in-
dustry particularly, this exemption is
a very good idea. It deserves our sup-
port.
I hope the Members will support it.
Mr. WILLIAMS. Mr. Chairman, I
move to strike the requisite number of
words.
Mr. Chairman, are we all in favor of
honest bank and financial institution
employees? Of course, we are.
The question before the Members is,
how do we achieve that. I do not think
we achieve it by making it convenient
and quick for the banks to hire people,
and financial institutions to hire
people without going through a good
personnel security check.
t
Why does American businesses wan
to use the lie detector? It cannot be
because the scientific evidence is there
that it works, because it is not. It is be-
cause It is convenient.
It is easier to use the He detector
than it is to raise the wage, minimum
wage, or create a good personnel de-
partment to really do a good personnel
check on the bank tellers.
Lie-detector gadgets are not going to
improve security fraud and bank theft,
because we have them now in the
United States.
The banks use them now, and the
banks tell us, some of them at least,
that they are hemorrhaging because
of illegal acts of some of their employ-
ees.
This is when they use the lie-detec-
tor gadget. It does not work. Maybe
the banks are just looking in the
wrong place.
Our Department of Justice indicates
they are. The research arm of the De-
partment of Justice called the Nation-
al Institute of Justice estimates that
here is the reason there is a hemor-
rhage from banks and other financial
institutions In the United States, be-
cause of security fraud, corporate kick-
back, and insurance fraud estimated
by the Department of Justice to be
three times the loss than is employee
pilferage.
Corporate kickbacks, insurance
fraud, securities fraud being conduct-
ed not by bank tellers, the people that
are going to have to take these tests,
but being conducted illegally by the
captains of this industry. That is our
problem on Wall Street.
That is our problem in the financial
institutions of this country; and while
the gentlewoman's amendment allows
the presidents of these financial insti-
tutions to be strapped in and the box
plugged in, how many of the Members
believe that they are going to be
strapped in? How many? How-many
people does this amendment include?
The best estimates I can get say that
it includes a lot more than we might
originally anticipate.
I am told by folks over at the Con-
gressional Research Service who tried
to count it for me, that if this amend-
ment passes. it is going to include
3,152.000's of people who could be
made susceptible to this gadget.
Does it affect credit unions? Sure.
When we get off the subway down
here, we are liable to go past a long
line of our employees in the Wright
Patman Federal Credit Union who are
lining up to take the lie detector test,
sure, because they are going to be sub-
jected to this, and so are people who
are called securities information proc-
essors.
I did not know what security infor-
mation processors were, so I checked
the law.
A securities information processor
means any person engaged in the busi-
ness of, first, collecting, processing, or
preparing for distribution or publica-
tion, or assisting, participating in or
coordinating the distribution or publi-
cation of information with respect to
transactions in or quotations from any
security, or distributing or publishing,
whether by means of tickertape or any
other communications network on a
current and continuing basis, informa-
tion with respect to such transaction
or quotations.
Probably most of the Members lis-
tening to that are, as I am, somewhat
confused by what it means; but It obvi-
ously includes thousands of people
who are involved in the distribution of
or publication of information about
quotations or securities.
The amendment also covers clearing
agencies.
The CHAIRMAN. The time of the
gentleman from Montana [Mr. WIL-
LIAMS] has expired.
(By unanimous consent, Mr. WrL-
LrAMS was allowed to proceed for 2 ad-
ditional minutes.)
Mr. WILLIAMS. When you check to
see what clearing agencies are, clear-
ing agencies mean any person who
acts as an intermediary in making pay-
ments or deliveries or both in connec-
tion with transactions in securities or
who provides facilities for comparison
of the data respecting the terms of set-
tlement of securities transactions, and
it goes on.
The point Is that you can drive the
financial community of the United
States through the loophole being cre-
ated by this bill.
Again, do we want honesty in the fi-
nancial institutions of the United
States? Yes. Are we going to get it
with this outdated, timeworn, unscien-
tific device called a lie detector
gadget? No. That is not how we are
going to get It, and I urge the Mem-
bers to oppose this amendment.
Mr. GUNDERSON. Mr. Chairman, I
move to strike the requisite number of
words.
(Mr. GUNDERSON asked and was
given permission to revise and extend
his remarks.)
Mr. GUNDERSON. Mr. Chairman,
listening to the gentleman from Mon-
tana, the next thing we are going to do
is outlaw in this country any kind of a
preemployment interview, because
they are unscientific.
The gentlewoman from New Jersey
is suggesting here that a polygraph
cannot be the sole determinant of
whether you hire someone or whether
you do not hire them. That is very
clear.
I would suggest that, if anything,
this is going to almost be an advantage
to an applicant for work in the finan-
cial industries. This says that if you
require the use of a polygraph, then
comprehensive consideration of that
application is also required. And do
not forget: it is the gentleman from
Montana who has imposed in this bill
a fine of up to $10.000 for a violation.
Do the Members think any bank,
any financial institution in this coun-
try is going to turn around and some-
how slap a polygraph test on someone,
use that as the sole determinant, say
no to hiring them with the full knowl-
edge that if that person goes out and
sues, they will be fined up to $10,000?
Let us use a little common sense and
recognize what we are dealing with in
this amendment. Then the gentleman
from Montana says that if this amend-
ment is approved, we will open it up to
some 3,152,000 potential employees
who will be subject to the polygraph.
Now, come on.
The facts are, and we all agree, that
there are no more than at the maxi-
mum 2 million tests conducted per
year. Let us use a little common sense.
We are also aware of the fact, and
every one of the Members can go to
any local financial institution in their
district and be reassured, that when
employers are not about to spend any-
where from $75 to $125 just to man-
date that every one of these people,
whether it be tellers or clerical em-
ployees, has to take a polygraph test,
especially in light of the other require-
ments of the bill which would suggest
that if they give them a polygraph,
they must be fully prepared to prove
that that is not the sole determinant
for an employment action.
0 1630
I mean, It is almost like if you use
the polygraph test, you better hire me.
because if you do not, you are prob-
ably going to have to pay at least half
my annual wages in a penalty to the
Federal Government for not hiring me
because it may be the sole determi-
nant for your action.
I really call upon my colleagues. The
one thing the American people ask of
us when we come here is not be Demo-
crat, not be Republican, not be liberal,
not be conservative. They say, For
gosh sakes, can you please go to Wash-
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November 4, 198' CONGRESSIONAL RECORD - HOUSE H 9571
ington and use a little common sense
in government?"
I think that is what this amendment
is all about. I hope we support it.
Mr. ST GERMAIN. Mr. Chairman, I
move to strike the requisite number of
words.
(Mr. ST GERMAIN asked and was
given permission to proceed for an ad-
ditional 2 minutes.)
The CHAIRMAN. The gentleman
from Rhode Island is recognized for a
total of 7 minutes.
(Mr. ST GERMAIN asked and was
given permission to revise and extend
his remarks.)
Mr. ST GERMAIN. Mr. Chairman, I
rise in opposition to the amendment of
the gentlewoman from New Jersey.
As chairman of the Committee on
Banking, there is not a soul in this
House that I will take a back seat to
when it comes to discussing the rea-
sons for bank failures, fraud, embez-
zlement.
Money laundering-my God, I am
one who is responsible for the legisla-
tion that requires reporting of transac-
tions of over $10,000 and of the
amendments thereto in the recent
past. I take a back seat to no one.
I will tell you right now, a polygraph
test will do nothing about money laun-
dering.
Mr. Chairman, the amendment we
are considering would deny workers
employed by financial institutions the
protections contained in this bill.
As a result, every person employed
by a financial institution-and, I
might add, that is a term which is
quite broadly defined-would be ac-
corded a lesser degree of personal pri-
vacy and a greater presumption of
complicity than other workers.
The amendment suffers a fatal flaw
in that it makes no distinction be-
tween a bank president, whose actions
can and have threatened the safety,
and in some instances brought about
the collapse of an entire institution,
and an underpaid janitor or reception-
ist or a clerk-typist.
Over the past few years, the Bank-
ing Committee has conducted exhaus-
tive hearings into the causes of the
failure of a financial institution. Cer-
tainly economic factors such as the
downturn in the agricultural and
energy sectors have been a major
cause.
Just as important have been insider
abuse and mismanagement-some-
times criminal mismanagement. How-
ever, nowhere in our hearings did we
find that polygraph testing of employ-
ees would have reduced bank failures
or reduced losses suffered by our de-
posit insurance fund.
In the case of financial institutions,
we would simply be fooling ourselves if
we make bank employees the scape-
goat.
Instead, banks and other financial
institutions must initiate greater inter-
nal control, if needed, and Federal and
State regulators must use the powers
Congress and State legislatures have
given them to protect our Nation's fi-
nancial institutions.
The bill before us today provides
prudent exceptions which I support.
In matters involving national security
or in instances such as nuclear science,
where the potential for disaster is
great, balancing the public good
against the privacy of an employee, it
is clear that the potential risks to the
public far outweigh the potential
damage to an individual.
However, the proponents of this
amendment have not made a case that
employees of a credit union, for exam-
ple, many of whom are volunteers,
mind you, they serve without pay,
have any greater propensity for com-
mittting a crime than any other
person. Nor have they been able to
prove that any crime committed in a
credit union by such as employee
would be likely to have cataclysmic
consequences.
I understand the concern of the gen-
tlewoman from New Jersey. but I be-
lieve she has not provided sufficient
justification to subject one class of
workers to a lesser degree of personal
freedom and privacy simply because
they work for financial institutions.
Nothing whatsoever has been shown
that suggest that employees of finan-
cial institutions have any greater op-
portunity for crime, or a greater dispo-
sition to commit crimes.
Nor has it been shown that bank
crime so threatens the public good
that we must treat all bank employees
as second-class citizens and deny them
their right to privacy, due process and
the presumption of innocence.
For these reasons I must oppose an
amendment which would deny people
an opportunity for employment or
perhaps ruin a career based upon a
polygraph's reading, and as has been
stated here today, that is of very ques-
tionable value.
Mr. Chairman, the problem with
money laundering and banks that
were fined by the Department of Jus-
tice was because that the principals,
the executives in these financial insti-
tutions, did not communicate to the
employees what their duties and re-
sponsibilities were under the reporting and that they do not know that it is
requirements of legislation designed to not in their best interests to properly
protect our institutions from being screen employees.
used as Laundromats for drug traffick- Now, I just ask my colleagues, if it is
ers. not in their best interests to screen
Again I repeat, Mr. Chairman, I take their employees in many ways, includ-
a back seat to no one on that one, be- ing the polygraph as one tool, then
cause I have been in the forefront of why would they want this ability, an
that fight throughout. expensive procedure, I might add, why
Mr. Seidman wrote in support of the would they want the ability to go
amendment, frankly, what he should through this expensive procedure
do is upgrade the supervision and reg- unless they felt it was in their own
ulation of financial institutions, rather best interests to do so?
than talk about polygraph testing if I would suggest that these people
he wants to save money for the insur- know what they are doing and that if
ing fund. the theft numbers are mounting, and
I will tell you, after my hearings, they are alarmingly, that one should
there is a lot of room for improvement not say therefore the polygraph has
there. failed. One can also say imagine how
Now, let me finish by saying this. If great the problem would have been
polygraph testing is so good, so effi- had they not been able to use the
cient, so wonderful in the area of fi- polygraph.
nancial institutions, how come over a
billion dollars, we were told earlier in
this debate, was lost by employee
fraud and embezzlement?
The CHAIRMAN. The time of the
gentleman from Rhode Island has ex-
pired.
(By unanimous consent, Mr. ST GER-
wArx was allowed to proceed for 1 ad-
ditional minute.)
Mr. ST GERMAIN. Frankly, Mr.
Chairman, the polygraph has not done
much good, has it?
I really do not think that the uncer-
tainty involved and the case that has
been made for this amendment war-
rants the invasion of privacy and sub-
jecting these innocent people to a
polygraph test of questionable value.
Mrs. ROUKEMA. Mr. Chairman, I
move to strike the requisite number of
words.
The CHAIRMAN. Without objec-
tion, the gentlewoman from New
Jersey is recognized for 5 minutes.
There was no objection.
Mrs. ROUKEMA. I do not know if
there will be other speakers, Mr.
Chairman, but in conclusion for my
part, I would like to make some final
observations on my amendment, be-
cause I think we have gone pretty far
afield from the amendment.
I would like to again clearly state
that this is an amendment that is care-
fully defined. It is not the same
amendment as was presented in the
previous Congress. It is clearly limited
to only federally insured institutions
and securities firms that are regulated
by the SEC.
It does not preempt any State or
local laws and it cannot be used as the
sole basis for an employment decision
or of demotion or of promotion or any
other kind of action on behalf of an
employee.
Finally, Mr. Chairman, I want to say
that somehow it has been intimated
here by the previous speakers that fi-
nancial institutions and banks do not
know what is in their own best inter-
ests. It has been indicated here that
banks and these institutions do not
know how to conduct their business
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H 9572
CONGRESSIONAL RECORD - HOUSE November 4, 1987
Mr. WYLIE. Mr. Chairman, will the
gentlewoman yield?
Mrs. ROUKEMA. I yield to the dis-
tinguished ranking member of the
Banking Committee, the gentleman
from Ohio.
Mr. WYLIE. Mr. Chairman, I thank
the gentlewoman again for yielding
and for her amendment.
We do not say that this is the final
word. We say that this is one more
tool in checking and recognizing that
there are certain exemptions already
included in this bill and that financial
institutions are held to a special re-
sponsibility, to a higher standard, if
you please, than some other institu-
tions in our society.
Now, it was mentioned a little while
ago that perhaps volunteer employees
of credit unions would be subjected to
a polygraph test. I doubt if there are
very many voluntary employees in
credit unions anymore, but that would
be all the more reason why would an
employee volunteer to be an employee
of a credit union? Maybe they ought
to be the ones who would be checked;
but financial institutions are required
by law to carefully screen prospective
employees and that recognizes that
certain persons with criminal records
might want to go to work in financial
institutions to take care of an expen-
sive drug habit or maybe to take care
of a gaming debt or something else.
I think this Is a good amendment. Fi-
nancial institutions are required by
law to establish comprehensive securi-
ty programs. That includes their
hiring practices. This is just one more
tool it seems to me that they ought to
have.
Mrs. ROUKEMA. Mr. Chairman, I
thank the distinguished ranking
member of the Banking Committee.
I would simply conclude by saying
that I think the financial institutions'
people understand their own industry
and they understand their needs and
they are being overwhelmed by theft.
I think this will go far to help them in
dealing with their problem.
The CHAIRMAN. The question is on
the amendment offered by the gentle-
woman from New Jersey [Mrs. Rotrxr,
MA 1.
The question was taken; and the
Chairman announced that the ayes
appeared to have it.
RECORDED VOTE
Mr. MARTINEZ. Mr. Chairman. I
demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic
device, and there were-ayes 184, noes
237, not voting 12, as follows:
[Roll No. 4091
AYES-184
Anderson
Bennett
Callahan
Archer
Bereuter
Chandler
Armey
Bilirakis
Chapman
Badham
Bliley
Chappen
Baker
Boulter
Cheney
Ballenger
Broomfield
Costs
Barnard
Buechner
Coble
Bartlett
Bunning
Coleman (MO)
Barton
Burton
Combat
Bateman
Byron
Courter
Craig
Rasich
Rogers
Da(:nemeyer
Kolbe
Rose
Darden
Konnyu
Roth
Daub
Kyl
Roukema
de ;a Garza
Lagomarsino
Rowland (GA)
Delay
Lancaster
Saiki
DeWine
Latta
Saxton
Dickinson
Leath (TX)
Schaefer
DioGuardi
Lent
Schuette
Doman (CA)
Lewis (CA)
Schulze
Dreier
Lewis (FL)
Sensenbrenner
Edwards (OK)
Lightfoot
Shaw
Emerson
Livingston
Shumway
English
Lott
Shunter
Erdreich
Lowery (CA)
Sisisky
Fawell
Luian
Skeen
Fields
Lukens. Donald
Slaughter (VA)
Fish
Lungren
Smith (NE)
Flippo
Mack
Smith (TX)
Frenzel
Madigan
Smith. Denny
Gallegly
Marlenee
(OR)
Gallo
Martin (IL)
Smith. Robert
Gekas
Martin (NY)
(NH)
Gingrich
Maao)i
Smith, Robert
Goodling
McCandless
(OR)
Gordon
McCollum
Solomon
Gradison
McEwen
Spence
Grant
McGrath
Stangeland
Green
McMillan (NC)
Stenholm
Gregg
Meyers
Stratton
Gunderson
Mica
Stump
Hall (OH)
Michel
Sundquist
Hall (TX)
Miller (OH)
Sweeney
Hammerschmldt Molinari
Swindall
Hansen
Montgomery
Tauzin
Harris
Moorhead
Taylor
Hastert
Morrison (WA)
Thomas (CA)
Hatcher
Myers
Thom" (GA)
Hayes (LA)
Nelson
Torricelll
Hefley
Nichols
Upton
Herger
Oxley
Valentine
Hrler
Packard
Vander Jagt
Holloway
Parris
Vucanovich
Hopkins
Pashayan
Walker
Hubbard
Pickett
Weber
Huckaby
Porter
Weldon
Hunter
Quillen
Whittaker
Hutto
Ravenel
Wolf
Hyde
Ray
Wortley
Inhofe
Reguls
Wylie
Ireland
Rhodes
Young(FL)
Jones (NC)
Ritter
Jones (TN)
Roberts
NOES-237
Ackerman
Coyne
Guarlni
Akaka
Crockett
Hamilton
Alexander
Davis (IL)
Hawkins
Andrews
Davis (MI)
Hayes (IL)
Annunzio
DeFaslo
Hefner
Anthony
Dellums
Henry
Applegate
Derrick
Hertel
Aspln
Dicks
Hochbrueckner
Atkins
Dingell
Horton
AuCoin
Dixon
Houghton
Bates
Donnelly
Royer
Beilenson
Dorgan (ND)
Hughes
Bentley
Dowdy
Jacobs
Berman
Downey
Jeffords
BevW
Durbin
Jenkins
Bilbray
Dwyer
Johnson (CT)
Boehlert
Dymally
Johnson (SD)
Boggs
Dyson
Jonta
Boland
Early
Kanjorski
Bonior
Eckert
Kastenmeler
Honker
Edwards (CA)
Kennedy
Borski
Espy
Kennelly
Bosco
Evans
Kildee
Boucher
Fascell
KlevJu
Boxer
Paolo
Kolter
Brennan
Felghan
Kostmayer
Brooks
Flake
LaFalce
Bruce
Florio
Lantos
Bryant
Foglietta
Leach (1A)
Bustamante
Foley
Ullman (CA)
Campbell
Ford (MI)
Lehman (FL)
Cardin
Ford (TN)
Leland
Carper
Frank
Levin (MI)
Carr
Frost
Levine (CA)
Clarke
Garcia
Lewis (GA)
Clay
Gaydos
Lipinski
Clinger
Gejdenson
Lloyd
Coelho
Gibbons
(WA)
Lawry
(WA)
Coleman (TX)
Gilman
Luken Thom"
,
Collins
Glickman
MacKay
Conte
Gorsales
Manton
Conyers
Grandy
Markey
Cooper
Gray (IL)
Martins
Coughlin
Gray (PA)
Matsui
Mavroules
Pyrkins
Snowe
McCloskey
Petri
Solarz
McCurdy
Pickle
Sprott
McDade
Price (IL)
St Germain
McHugh
Price, NC)
Staggers
McMillen MD)
Pursell
Stallings
Mfume
Rahall
Stark
Miller (CA)
Rangel
Stokes
Miller (WA)
Richardson
Studds
Mineta
Ridge
Swift
Moakley
Rinaldo
Synar
Mollohan
Robinson
Tallon
Moody
Rodino
Tauke
Morello
Roe
Torres
Morrison (CT)
Rostenkowski
Towns
Mrazek
Rowland (CT)
Traficant
Murphy
Roybal
Trailer
Murtha
Russo
Udall
Nagle
Sabo
Vento
Natcher
Savage
Visclosky
Neal
Sawyer
Volkmer
Nielson
Scheuer
Walgren
Nowak
Schneider
Watkins
Oakar
Schroeder
Waxman
Oberstar
Schumer
Weiss
Obey
Sharp
Wheat
Olin
Shays
Whitten
Ortiz
Slkorski
Williams
Owens (NY)
Skaggs
Wilson
Panetta
Skelton
Wise
Patterson
Slattery
Wolpe
Pease
Slaughter (NY)
Wyden
Pelosi
Smith (PL)
Yates
Penny
Smith (IA)
Yatron
Pepper
Smith (NJ)
Young (AK)
Biaggi
Daniel
Kaptur
Brown (CA)
Duncan
Kemp
Brown (CO)
Gephardt
Owens (UT)
Crane
Howard
Roemer
^ 1655
The Clerk announced the following
pair:
On this vote:
Mr. BRowx of Colorado for, with Ms.
$APTUR against.
Mr. BEREUTER and Mr. STRAT-
TON changed their votes from "no" to
"aye.'
So the amendment was rejected
The result of the vote was an-
nounced as above recorded.
AMENDMENT OTTERED BY MR. RICHARDSON
Mr. RICHARDSON. Mr. Chairman,
I offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. RICHARnsoN:
Page 8, after line 13, insert the following
new subsection:
(d) EREMPTIOA TOR DRUG SECTRrrY, DRUG
THETT, on DRUG DIvuRSIOR) IsvESTioA-
Tlores.-This Act shall not prohibit the use
of a lie detector test by any employer au-
thorized to manufacture, distribute, or dis-
pense a controlled substance listed in sched-
ule I. II. III, or IV pursuant to section 202 of
the Controlled Substances Act (21 U.S.C.
812) to the extent that-
(1) such use is consistent with-
(A) applicable State and local law, and
(B) any negotiated collective bargaining
agreement.
that explicitly or Implicitly limits or prohib-
its the use of lie detector testa by such em-
ployer,
(2) the test is administered only to an em-
ployee who has, or a prospective employee
who would have, direct access to the manu-
facture, storage, distribution, or sale of any
such controlled substance; and
(3) the results of an analysis of lie detec-
tor charts are not used as the sole basis
upon which any employee or prospective
employee is discharged, dismissed, disci-
pitned in any manner, or denied employ-
ment or promotion.
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November 4, 1987 CONGRESSIONAL RECORD - HOUSE H 9573
Mr. RICHARDSON (during the amendment is a public health and No matter what your perspective is
reading). Mr. Chairman, I ask unani- safety amendment addressing the on lie detector tests, I believe that it is
moue consent that the amendment be problems of drug abuse and the safety imperative In the name of national se-
considered as read and printed in the of this Nation's prescription drugs. curity as well as public health and
RwoRu. The incentive for illicit drug trading safety to carve out an exemption so
The CHAIRMAN. Is there objection looms large when a capsule or pill that drug thefts and diversion from le-
to the request of the gentleman from which retails for 50 cents can com- gitimate sources do not escalate any
New Mexico? mand $25 to $35 on the black market. further.
There was no objection. This presents a clear and present Mr. Chairman, we agreed to this
(Mr. RICHARDSON asked and was danger for manufacturers and distrib- very same amendment in the last Con-
given permission to revise and extend utors who must guarantee the securi- gress because we, sadly, acknowledged
his remarks.) ty. safety, and integrity of prescription we have a terrible drug abuse/drug
Mr. RICHARDSON. Mr. Chairman, drugs. While this amendment won't theft problem. I strongly urge the
I rise to offer an amendment for stop drug trafficking, it will present a House to adopt this important amend-
myself and Mr. HUGHES. Our amend- clear deterrent to those who would ment,
ment will counter the problems of the steal or divert prescription drugs.
Let me say, Mr. Chairman, that I
theft and diversion of controlled sub- Lastly and perhaps most important- want to express my appreciation to
stances into the illegal drug market. ly, the Richardson-Hughes amend- the framer of this amendment. I think
The Richardson-Hughes amendment ment will help combat this Nation's it is very carefully thought out.
authorized specifically exempts the Feoseal companies drug abuse problem. Drug abuse is We agreed to this a year ago. I think
meat to manufacture, distribute, or pervasive in the United States. An esti- the need is very apparent. It has been
dispense csubstances from mated 40 million abuse illegal or legiti- especially seen by this Congress.
the polygraph controlled nt bad. Its tances from mately controlled drugs. Drug addic- We have an opportunity here to pro-
minimize the theft and diversion of tion not only takes its toll in lost pro- vide an extra element of protection to
dangerous drugs and narcotics from le- ductivity-absenteeism, crime, and our young children from those who
gitimate sources in the United States. medical expenses from drug dependen- would abuse their employment privi-
The exemption provided by this cies cost the U.S. economy $230 billion lege by stealing drugs and making
amendment is narrowly drawn: the each year-but in human lives and suf- them available to our school children.
test can only be administered to em- fering. Stopping the flow of drugs into I urge everybody to support this
ployees who have, or prospective em- the black market is essential to com- amendment.
ployees who would have, direct access bating this Nation's drug abuse prob- Mr. OXLY. Mr. Chairman, will the
to the manufacture, storage, distribu- lem and I believe this amendment will gentleman yield?
tion, or sale of controlled substances. act as a deterrent-helping to stop the Mr. ARMEY. I yield to the gentle-
More importantly, the amendment. ex- flow of controlled substances into illic- man from Ohio [Mr. Oxi.EY).
plicitly prohibits polygraph test re- it channels. Mr. OXLEY. I thank the gentleman
suits from being used as the sole deter- 0 1710 for yielding.
mining factor in the hiring, disciplin- Mr. Chairman, I too want to join
ing, or firing of any employee. Finally, Mr. ARMEY. Mr. Chairman, I move Congressman RICHARosoN and Con-
this amendment is the exact, word for to strike the last word. gressman HUGHES in support of this
word language that was adopted by Mr. Chairman proponents of H.R. amendment. This is the amendment
the House when we debated the poly- 1212 claim that the business communi- that passed the last time this bill was
graph ban in the 99th Congress. ty is requiring individuals and employ- up. I think it makes a great deal of
Each year, large volumes of prescrip- ees to take too many polygraph tests. sense. Our committee, the Oversight
tion drugs are stolen or diverted into According to my friend from Montana, and Investigations Subcommittee of
illicit channels. The Drug Enforce- Mr. WILLIAMS, some 2 million tests are the Committee on Energy and Com-
ment Administration [DEA] and the given every year in the private sector. merce have had numerous hearings on
General Accounting Office estimate In my view, this number pales in the whole question of drug diversion.
that 250 million to 270 million dosage comparison to the number of Ameri- It is a very, very serious problem in
units of legally manufactured drugs cans who are abusing addictive drugs this country. Many of the drugs that
are stolen or diverted into illicit chan- and illicit substances. According to a are diverted are caused by theft,
nels annually. There is a justified need number of sources, 40 million people which eventually get into the illicit
for a pharmaceutical exemption. The in the United States regularly use ille- market.
DEA reports losses in the retail chain gal drugs or abuse legitimate con- it is very important that we have
which includes retail pharmacies, trolled substances. In other words, this tool.
warehouses, and trucks in transit of America has a serious, widespread
between 500,000 and 1 million dosage drug problem. As the gentleman from New Mexico
units yearly. When we consider that there are said, this is not the be-all, end-all, it is
More importantly, these losses are some 1 million jobs among drug manu- not going to solve the total problem,
solely attributed to employee theft. In facturing companies, wholesalers and but it is a too! which these companies
other words, employee theft accounts retail pharmacies, the odds that an in- can use, and these pharmacies can use
for 60 percent of all losses incurred by dividual with a chemical dependency to determine what kind of people they
the chain drug industry. There is, problem or a history of drug related have working for them.
however, another meaning to these crimes seeking employment with one So it is a well-crafted amendment.
DEA figures: employee theft and di- of these businesses is fairly substan- Mr. HUGHES and I are both on the
version results in direct and substan- tial. Select Committee on Narcotics Abuse
tial dollar losses to the involved indus- Congress would be making a terrible and Control. We understand the real
tries. Retail corporate drug stores mistake if we do not provide an ex- problem of drugs in our country. This
alone lose over $480 million annually emption on the controlled substance is a small step that we can use in pro-
due to internal theft. I believe these issue. To reject the Richardson viding the exemption which is provid-
statistics indicate that there is a legiti- amendment will mean that we will ed for in the amendment by the gen-
mate requirement for the Richardson- have created a gaping loophole in our tleman from New Mexico.
Hughes exemption from the poly- war against drugs and drug-related Mr. ECKART. Mr. Chairman, will
graph ban. crimes. Moreover, rejecting this the gentleman yield to me?
In addition to economic reasons amendment will mean we'll lose a val- Mr. ARMEY. I yield to the gentle-
however, there are valid social policy uable procedure available to compa- man from Ohio (Mr. ECKART).
arguments that support passage of vies in their efforts to minimize and Mr. ECKART. I thank the gentle-
this amendment. I am convinced this deter losses of controlled drugs. man for yielding.
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H 9574
CONGRESSIONAL RECORD - HOUSE ~-oceriber 4, 1.98"
My colleague from Ohio and I have
worked together on the Subcommittee
on Oversight and Investigations on
this matter. It was a year ago that this
was the Armey-Eckart amendment
that the House passed. It is my under-
standing that the gentleman's repre-
sentations are true. I wish to be associ-
ated with them. It does include our
direct access language and makes clear
we want to focus on those employees
who are in those circumstances.
So I wish to associate myself with
the gentleman's remarks and thank
him for yielding to me.
Mr. ARMEY. I thank both of the
gentlemen.
Let me say as I did say, as Mr.
ECKART pointed out this is a well craft-
ed amendment. Let me say to the body
at large that a "yes" vote on the Rich-
ardson amendment is a vote for the
safety and health of your children.
I applaud the gentleman from New
Mexico once again for his concern and
in bringing this amendment.
Mr. MARTINEZ. Mr. Chairman. I
move to strike the requisite number of
words.
Mr. OWENS of New York. Mr.
Chairman, will the gentleman yield?
Mr. MARTINEZ. I yield to the gen-
tleman from New York.
(Mr. OWENS of New York asked
and was given permission to revise and
extend his remarks.)
Mr. OWENS of New York. Mr.
Chairman, I thank the gentleman for
yielding.
Mr. Chairman, I rise in strong support of the
Employee Polygraph Protection Act (H.R.
1212) and against the many amendments
which will be offered today to gut the bill.
Polygraph screening does not work, cannot
work, and does not belong in the American
workplace.
One of the things that has made this coun-
' try great is our boundless faith in science and
technology, but sometimes it can get us into
trouble. We have seen so many miracles
made possible in our lives through science
that it does not seem implausible to us that a
little electronic box really could tell whether or
not we are telling the truth. But the reality is
that polygraph screening is essentially a
quack science which should enjoy about as
much credibility as the "x-ray specs" adver-
tised in the back pages of comic books. It
does not measure truthfulness; it measures
physiological indicators of stress-changes in
our blood pressure, breathing, and perspira-
tion. Sometimes those signals of stress can
mean you are lying, but they can also mean
any number of other things as well, including
simply that having electrodes strapped to your
head and being interrogated like a criminal
makes you very nervous. Study after study
has found that there is absolutely no scientific
basis for the idea that polygraph exams can
reliably identify lies and deception.
We tolerate many foolish practices in our
society and if polygraphs were used as be-
nignly as comic book "x-ray specs" they
would be of no concern to us. That is not the
case, however. Despite the dearth of scientific
evidence to support its reliability, the use of
polygraph screening by employers is now epi-
demic and it is hurting too many of our con-
stituents. Every year, hundreds of thousands
of American workers-innocent, honest,
decent people-are being denied ;obs and
turned into unemployable pariahs on the basis
of this bogus, pseudoscientific exam. Because
the polygraph measures physiological func-
tions, persons with physical and mental dis-
abilities or ailments are particularly vulnerable
to being unfairly and incorrectly identified as
"liars" by the exam. For similar reasons, as
well as because the interpretation of poly-
graph results is inevitably subjective and
prone to bias, there is also evidence that poly-
graph screening unfairly discriminates against
black Americans and other ethnic minorities; if
you are black, in other words, the polygraph is
far more likely to tag you as a liar than if you
are white. And most perversely of all, the
greatest discriminatory impact of polygraph
screening falls on precisely those of our con-
stituents who are the most scrupulously
honest because their understandable indigna-
tion, surprise, and anger at being interrograted
is likely to create the kind of stress the poly-
graph treats as a signal of deception.
The opponents of H.R. 1212 and those who
support industry-specific exemptions to the
legislation would have you believe that the
polygraph is necessary to combat employee
theft-even employee "terrorism"-and are
trying hard to cast this debate as some kind
of referendum on the crime in the workplace.
This is absurd. There is simply no evidence to
support their claim that the pseudoscience of
polygraph screening is an effective, much less
an essential tool against employee crime.
Businesses in those States which have
banned the use of the polygraph experience
no higher rate of theft and other crimes by
employees than businesses in those States
where polygraph use is unregulated and has
been allowed to flourish. Indeed, the National
Institute of Justice Study on Employee Theft
found that employers who use polygraph
screening actually experienced a higher rate
of employee theft than those who did not.
Other opponents of H.R. 1212 have argued
that instead of banning the use of the poly-
graph in private employment we should first
try to regulate its use in the workplace. Unfor-
tunately, advocates of this approach seem to
have missed the point Since polygraph
screening does not work, trying to regulate its
use makes about as much sense as trying to
regulate numerology or palm-reading-it is an
utterly pointless exercise which is inherently
unworkable. Moreover, the few States that
have tried this approach have demonstrated
little success in stopping what even polygraph
advocates agree are abuses of the device. In
fact, during the subcommittee's consideration
of H.R. 1212, one of the most frightening sto-
ries we heard about employer abuse and
misuse of the polygraph was told by a worker
who was purportedly "protected" by one of
the State laws upon which the Darden substi-
tute has been modeled. Polygraph regulation
was of no use to this man and would be of no
use to other American workers either.
The massive polygraph screening now
taking place in American workplaces is an
abomination and it must be halted. If thou-
sands of our constituents were being branded
liars and denied employment on the basis of
their horoscopes, we would not hesitate to
outlaw the practice. The polygraph is no more
useful or valid in detecting deception than as-
trology, but we have tolerated its use because
it looks somenow sc,entific with its tangle of
wires and electrodes and is charts of color'ul,
squiggly lines. it is Icrg past time for us 'o
end this absurd masquerade and to orcvs.:e
the protection American workers need from
the dangerous quackery of the polygraph.
Pass H.R. 1212 and .lefeat the weakening
amendments.
Mr. MARTINEZ. Mr. Chairman, I do
not know how all of a sudden the legis-
lation becomes a panacea to curb all
the abuses in banking, in child care, in
care of the elderly and all of the
amendments that we have heard so
far. I do not believe that security
measures for the safekeeping of drugs
or for keeping them out of the hands
of drug dealers should depend on the
reliability of a machine that is ques-
tionable.
The credibility of the machine and
the track record of the machine is not
such that we should depend on it for
our security measures to keep drugs
out of the hands of drug dealers. If we
are reduced to that kind of thinking
then we ought to turn over the key to
the cabinet to the drug dealers be-
cause it is not going to do the job.
The polygraph is not a security
measure. Twenty to forty percent of
the time the machines are wrong. If
this amendment passes it is just lead-
ing us down the primrose path of a
false sense of security.
AMENDMENT OFFERED BY MR. HUGHES TO THE
AMENDMENT OFFERED BY MR. RICHARDSON
Mr. HUGHES. Mr. Chairman, I offer
an amendment to the amendment.
The Clerk read as follows:
Amendment offered by Mr. HUGHES to the
amendment offered by Mr. RICHARDSON: In
the matter proposed to be inserted by the
amendment offered by the Gentleman from
New Mexico, strike out "and" at the end of
paragraph (2); strike out the period at the
end of paragraph (3) and insert in lieu
thereof "; and": and after such paragraph
insert the following new paragraph:
(4) if the test is administered to a current
employee-
(A) the test is administered only in con-
nection with an ongoing investigation of
criminal or other misconduct involving. or
potentially involving, loss or injury to the
manufacture, distribution, or dispensing of
any such controlled substance by such em-
ployer: and
'B) the employee had access to the person
or property which is the subject of the in-
vestigation.
Mr. HUGHES (during the reading).
Mr. Chairman, I ask unanimous con-
sent that the amendment to the
amendment be considered as read and
printed in the RECORD.
The CHAIRMAN. Is there objection
to the request of the gentleman from
New Jersey?
There was no objection.
Mr. HUGHES. Mr. Chairman, I rise
in very strong support of the Richard-
son amendment which creates a
narrow exception from the prohibition
in the bill in the case of the traffic in
controlled substances. The amend-
ment I am offering improves the Rich-
ardson amendment by limiting its cov-
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November 4, 1987
CONGRESSIONAL RECORD - HOUSE H 9575
erage in investigative uses of poly-
graph testing.
The first question of course Is, Do
we need a special exception in this bill
to fight drug trafficking and drug
abuse? I think that this House is on
record singling out the importance of
comprehensively attacking the drug
abuse problem on every front.
In fact it was just over a year ago, on
October 27, 1986, that President
Reagan signed the Anti-Drug Abuse
Act, which originated in this House,
the most massive legislative assault
and comprehensive attack upon the
problems of drug abuse In this Nation.
Certain drugs are well known to the
public and extensively covered in the
news media-drugs such as heroin, co-
caine, and marijuana. However, there
are other drugs which have legitimate
medical uses which are even more
widely abused. Throughout the 1970's
and 1980's these drugs were responsi-
ble for three-quarters of all the deaths
and injuries due to drug abuse in the
United States. They were responsible
for more deaths than heroin and co-
caine combined. Only in the last 2
years, because the tidal wave of
"crack" cocaine has engulfed our
cities' youth, has the percentage of
deaths and injuries due to legitimate
drugs gone down. Legitimate drugs are
produced here in the United States.
We can't blame anyone else for the
thousands of deaths and tens of thou-
sands of hospital admissions from
these drugs.
In the past 3 years this House has
taken the lead in strengthening our
ability to prevent the diversion of le-
gitimate drugs from channels of medi-
cal distribution to the blackmarket.
We have appropriated additional
funds for the drug enforcement ad-
ministration to investigate these cases.
We have strengthened the laws to
allow the revocation of registrations of
manufacturers, distributors, and medi-
cal practitioners who are involved in
diversion. We made the robbery and
burglary of controlled substances from
a registrant a separate Federal crime.
Recent estimates by DEA of the
quantities of drugs diverted run as
high as 700 million doses per year. It's
a very serious problem. These pills are
widely distributed to children because
they are easy to take. They don't need
to be injected or smoked. They look
like medicine because they are medi-
cine, but they are very dangerous, and
when offered to children they are a
specially dangerous temptation.
These legitimate drugs-powerful
painkillers, tranquilizers, and stimu-
lants-are widely sought in the black-
market. A single 4 milligram pill of a
painkiller such as dilaudid sells for be-
tween $30 and $65 on the blackmarket.
This is easy money for the unscrupu-
lous employee who pilfers drugs, and
big money for more sophisticated
criminals who try to infiltrate whole-
sale drug distribution operations.
The Richardson amendment gives us
a critical tool to prevent the organized
crime rings from infiltrating drug com-
panies and distributors. My amend-
ment narrows the Richardson amend-
ment. In the case of current employ-
ees, a polygraph can only be used In
connection with an ongoing investiga-
tion or criminal or other misconduct
involving the manufacture, distribu-
tion, or dispensing of controlled sub-
stances, and only if the employee had
access to the person or property which
is the subject of the investigation.
There can be no random polygraph
testing of current employees under
this amendment. Indeed, the industry
has told us that they don't need
random testing.
There are Members who may have
been reluctant to support the Richard-
son exception. In light of my amend-
ment, which narrows and focuses the
Richardson amendment, I urge these
Members to take another look at the
Richardson amendment.
I urge my colleagues to support both
my amendment and the Richardson
amendment.
0 1725
Mr. RICHARDSON. Mr. Chairman,
will the gentleman yield?
Mr. HUGHES. I am happy to yield
to the gentleman from New Mexico.
Mr. RICHARDSON. Mr. Chairman,
I want to commend the gentleman for
offering his amendment. I think it im-
proves the one that I offered. It nar-
rows the scope, it creates a threshold,
and I would just like to advise the gen-
tleman that I would be pleased to
accept his amendment.
Mr. HUGHES. Mr. Chairman, I
thank the gentleman for his support.
Mr. WILLIAMS. Mr. Chairman, will
the gentleman yield?
Mr. HUGHES. I am happy to yield
to the gentleman from Montana.
Mr. WILLIAMS. Mr. Chairman. I
want to be sure I understand the gen-
tleman's amendment. The gentleman
is eliminating the postemployment
random nature of the Richardson
amendment and substituting for that
the use of the lie detector in an inci-
dent-only matter?
Mr. HUGHES. That is correct.
The CHAIRMAN. The time of the
gentleman from New Jersey [Mr.
HUGHES] has expired.
(By unanimous consent, Mr. HUGHES
was allowed to proceed for 2 additional
minutes.)
Mr. WILLIAMS. Mr. Chairman. if
the gentleman will yield, let me ask
this question:
Does the gentleman's amendment
continue to allow all preemployment
testing to go forward, or has it elimi-
nated the preemployment testing in
the Richardson amendment?
Mr. HUGHES. No, the preemploy-
ment testing is permitted under my
amendment.
Mr. WILLIAMS. Mr. Chairman, I
thank the gentleman.
Mr. HUGHES. Mr. Chairman, let me
say that the only thing it does is it fo-
cuses the postemployment testing on
those incidents which in fact result in
an ongoing criminal or civil investiga-
tion.
Let me make one additional point if
I might before I yield back the balance
of my time.
Mr. Chairman, we make an excep-
tion for the law enforcement commu-
nity. The law enforcement communi-
ty, in using the polygraph, basically is
exposed to a very small amount of
controlled substances. Here we are
talking about millions and millions
and millions of dosage units that are
being handled by these pharmaceuti-
cal companies and distributors, and
this is where we really need to have
the polygraph testing for diversion.
So I urge my colleagues, if they are
persuaded that law enforcement has
needs in the area of controlled sub-
stances, they certainly a fortiori have
to argue that we need it in this par-
ticular area.
Mr. Chairman, I urge my colleagues
to support my amendment and to sup-
port the Richardson amendment,
which is an excellent amendment. I
can tell my colleagues that I would
have a hard time supporting this legis-
lation if this amendment does not
carry.
Mr. Chairman. I yield back the bal-
ance of my time.
Mr. LUNGREN. Mr. Chairman, I
move to strike the requisite number of
words.
Mr. Chairman, I think that the
Members ought to realize that for the
greatest period of the history of the
FBI they did not involve themselves in
drug cases. They specifically were pro-
hibited from being involved in drug
cases because J. Edgar Hoover, seeing
the tremendous amounts of money to
be gained in the illegal use of drugs,
was afraid it was such a corrosive, cor-
ruptive influence on even law enforce-
ment that it would be extremely diffi-
cult for him to maintain the purity, so
to speak, of the FBI.
A number of years ago, in conjunc-
tion with this administration, we made
the decision and the administration
made the decision to remove the bar-
rier to investigation by the FBI, to
have them work with the DEA. In
fact, some of J. Edgar Hoover's worst
thoughts came to the fore. We have
had for the first time in the history of
the FBI, some FBI agents who went
bad, and we have had some prosecu-
tions of FBI agents. Nonetheless, we
thought that risk was appropriate be-
cause of the enormity of the drug
problem facing the Nation.
Is it too much to believe that with
all the requirements we make prospec-
tive FBI agents go through, when
even then some of them succumb to
the temptations in this area, there-
fore, some of the people working in
the pharmaceutical industry would
not be tempted to fall to the illegal
perpetrators of drugs? I think if we
looked at it realistically, we know that
is happening. Not only is the illegal
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H 95-46
CONGRESSIONAL RECORD - HOUSE Votember 4, 1987
manufacture and distribution of drugs
a problem, as the gentleman from New
Jersey (Mr. HUGHES] has pointed out,
but the illegal diversion of drugs
which are controlled, having been pro-
duced legally, is a problem in this
country. If we believe it is a continuing
major problem why should we remove
one of the most valuable tools that
law enforcement has found in policing
itself from private industry?
I heard my friend, the gentleman
from California. say a little earlier
that Members who support this
amendment believe this gadget is the
panacea, and I would say to my friend,
the gentleman from California, that
he misstates our position. This is not
the panacea, but it is a tool, an effec-
tive tool. a seen by law enforcement,
that we are without this amendment
taking away from the private sector,
those who produce, manufacture and
distribute controlled substances. It is
not a panacea, but it is an effective
tool.
Others have said, "Wait a second.
This involves the constitutional rights
of individual Americans." I would say,
if we look at the 5th and 14th amend-
ments of the Constitution, we would
find that they talk about State action.
They talk about prohibiting unreason-
able searches and seizures by the
State, that is, by Government officials.
Here we have made that exception, a
blanket exception in that regard.
What we are asking is this: What
should be the case in the private
sector, in the private employer-em-
ployee relationships? All I would say
is, if we are going to be true to the
feelings of the floor of the House that
were expressed last year in support of
the antidrug bill, truly a bipartisan ap-
proach fighting the drug problem in
this country, we ought to support the
amendment. It is more narrowly
drawn now, with the Hughes amend-
ment, so we do not have to fear
random polygraph tests being adminis-
tered to already existing employees,
but it does continue to allow preem-
ployment screening and having the
polygraph as part of that, not the
total thing but part of it.
Mr. Chairman, it seems to me that
this is a reasonable amendment. It is
something we ought to adopt. It is
something that is not to be feared. It
is something we should accept as rea-
sonable under the circumstances.
Mr. WILLIAMS. Mr. Chairman. I
move to strike the requisite number of
words, and I rise in opposition to the
amendment.
Mr. Chairman, I wonder if the
author of the amendment would
answer a few questions to clarify my
understanding of the amendment.
Does the amendment include the poly-
graphing of people who transport
drugs, that is, truck drivers?
Mr. RICHARDSON. Mr. Chairman.
if the gentleman will yield, the answer
to the question is no.
Mr. WILLIAMS. Mr. Chairman, let
me ask. what does the gentleman
mean in his amendment when he says,
"distribution"?
Mr. RICHARDSON. What I mean
by "distribution" is the normal proce-
dure of drug manufacturers and dis-
tributors. Once again, it would pre-
clude the trucker's ability to have
direct access to controlled substances.
Trucks transporting controlled sub-
stances are locked before leaving the
loading dock and unlocked at the
point of destination by authorized per-
sonnel.
In answer to the second question, I
mean anybody involved in the entire
process in the channel of controlled
substances.
Mr. WILLIAMS. Except truckers?
Mr. RICHARDSON. Yes.
Mr. WILLIAMS. Mr. Chairman, if
the gentleman will answer another
question, so it is the gentleman's pur-
pose that those who haul drugs or
transport drugs are not included in his
amendment?
Mr. RICHARDSON. That is correct.
Mr. WILLIAMS. How about those
people who store drugs or are involved
in warehousing drugs on their way to
the pharmacy?
Mr. RICHARDSON. Let me just
make this case: Those that are regis-
tered with the DEA, those that store
and are registered with the DEA are
included. So storage operators are in-
cluded.
Mr. BARTLETT. Mr. Chairman, will
the gentleman yield?
Mr. WILLIAMS. I yield to the gen-
tleman from Texas.
Mr. BARTLETT. Mr. Chairman, I
thank the gentleman for yielding, be-
cause I think the gentleman is doing
the House a service in pointing out
what the Richardson amendment in-
cludes.
I think It is important to read para-
graph 2 of the amendment. It would
be administered or permitted to be ad-
ministered only to an employee or pro-
spective employee who would have
direct access to the manufacture, stor-
age, distribution, or sale of controlled
substances. So whether it is a truck
driver or a pharmacy or a pharmacist
or anyone else, it is only employees
who have direct access to the sub-
stance itself. I think that is a fair
place to draw the line. A truck driver
who does not have access to the con-
trolled substance is no threat, and,
therefore, this amendment would not
apply to him.
Mr. WILLIAMS. Mr. Chairman, let
me reclaim my time. I appreciate the
gentleman's assistance and his expla-
nation.
Relating to these substances in
schedules 1, 2, 3, and 4, which appar-
ently are the only controlled sub-
stances the gentleman's amendment
covers, are those substances always
sealed? Are they always in a certain
state of security by having been sealed
as they are transported and stored ac-
cording to DEA's regulations?
Mr. RICHARDSON. Mr. Chairman,
if the gentleman will yield, that is cor-
rect. They are also sealed within the
truck. meaning that controlled sub-
stances are doubled-sealed during
transportation.
Mr. WILLIAMS. So as those sub-
stances come across the country and
are put in a warehouse, does the
manner in which they are sealed mean
that the people dealing with them in
the warehouse are not subject to a lie
detector examination under the gen-
tleman's amendment?
Mr. RICHARDSON. They are cov-
ered under the bill.
Mr. WILLIAMS. So the truck driver
would not be the person who unloads
the truck and stores the drugs, so he
would not be subject to examination?
Mr. RICHARDSON. The gentleman
is correct.
Mr. WILLIAMS. Mr. Chairman. if
the author of the amendment will con-
tinue to respond, let me say that I ap-
preciate his willingness to engage in
this colloquy.
Does the author of the amendment
know what the position of the Ameri-
can Pharmaceutical Association is on
the gentleman's amendment?
Mr. RICHARDSON. Mr. Chairman,
my understanding is that the entire
pharmaceutical industry, the drug
manufacturers and distributors, are in
support of the legislation.
Mr. WILLIAMS. Mr. Chairman, the
gentleman is wrong. Let me read from
a letter to me from the American
Pharmaceutical Association. I will
read only the one sentence which
sums up the association's position.
The CHAIRMAN. The time of the
gentleman from Montana [Mr. WtL-
LIAMS] has expired.
(By unanimous consent, Mr. WtL-
LIAMS was allowed to proceed for 2 ad-
ditional minutes.)
Mr. WILLIAMS. Mr. Chairman, let
me say to my colleagues that I want to
share this with them because I believe
this is very important. The American
Pharmaceutical Association has writ-
ten this:
"The American Pharmaceutical As-
sociation's position is that polygraph
tests should not be used as a means of
preemployment screening in pharma-
cies, should not be used in pharmacies
for routine security checking of em-
ployees"-and the amendment offered
by the gentleman from New Jersey
may have taken care of that-and fi-
nally, "should not be used in pharma-
cies in the course of investigation for
causes."
The American Pharmaceutical Asso-
ciation itself is against this amend-
ment. I ask, why is that? Because they
know this gadget does not work. It cre-
ates a false sense of security, and they
do not want it. They do not want the
pharmacists and the drugstore owners
of America to be relying on a gadget
that does not work. The American
Pharmaceutical Association knows
that we cannot protect the American
public when we let pharmacists and
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149576
CONGRESSIONAL RECORD - HOUSE Not-ember 4, 1.987
manufacture and distribution of drugs
a problem, as the gentleman from New
Jersey [Mr. HUGHES] has pointed out,
but the illegal diversion of drugs
which are controlled, having been pro-
duced legally, is a problem in this
country. If we believe it is a continuing
major problem why should we remove
one of the most valuable tools that
law enforcement has found in policing
itself from private industry?
I heard my friend, the gentleman
from California, say a little earlier
that Members who support this
amendment believe this gadget is the
panacea, and I would say to my friend,
the gentleman from California, that
he misstates our position. This is not
the panacea, but it is a tool, an effec-
tive tool, a seen by law enforcement,
that we are without this amendment
taking away from the private sector.
those who produce, manufacture and
distribute controlled substances. It is
not a panacea, but it is an effective
tool.
Others have said, "Wait a second.
This involves the constitutional rights
of individual Americans." I would say,
if we look at the 5th and 14th amend-
ments of the Constitution, we would
find that they talk about State action.
They talk about prohibiting unreason-
able searches and seizures by the
State, that Is, by Government officials.
Here we have made that exception, a
blanket exception in that regard.
What we are asking is this: What
should be the case in the private
sector, in the private employer-em-
ployee relationships? All I would say
is, if we are going to be true to the
feelings of the floor of the House that
were expressed last year in support of
the antidrug bill, truly a bipartisan ap-
proach fighting the drug problem in
this country, we ought to support the
amendment. It is more narrowly
drawn now, with the Hughes amend-
ment, so we do not have to fear
random polygraph tests being adminis-
tered to already existing employees,
but It does continue to allow preem-
ployment screening and having the
polygraph as part of that, not the
total thing but part of it.
Mr. Chairman, it seems to me that
this Is a reasonable amendment. It is
something we ought to adopt. It is
something that is not to be feared. It
is something we should accept as rea-
sonable under the circumstances.
Mr. WILLIAMS. Mr. Chairman, I
move to strike the requisite number of
words, and I rise in opposition to the
amendment.
Mr. Chairman, I wonder if the
author of the amendment would
answer a few questions to clarify my
understanding of the amendment.
Does the amendment include the poly-
graphing of people who transport
drugs, that is, truck drivers?
Mr. RICHARDSON. Mr. Chairman,
if the gentleman will yield, the answer
to the question is no.
Mr. WILLIAMS. Mr. Chairman. let
me ask, what does the gentleman
mean in his amendment when he says,
"distribution"?
Mr. RICHARDSON. What I mean
by "distribution" is the normal proce-
dure of drug manufacturers and dis-
tributors. Once again, it would pre-
clude the tricker's ability to have
direct access to controlled substances.
Trucks transporting controlled sub-
stances are locked before leaving the
loading dock and unlocked at the
point of destination by authorized per-
sonnel.
In answer to the second question, I
mean anybody involved in the entire
process in the channel of controlled
substances.
Mr. WILLIAMS. Except truckers?
Mr. RICHARDSON. Yes.
Mr. WILLIAMS. Mr. Chairman, if
the gentleman will answer another
question, so it is the gentleman's pur-
pose that those who haul drugs or
transport drugs are not included in his
amendment?
Mr. RICHARDSON. That is correct.
Mr. WILLIAMS. How about those
people who store drugs or are involved
in warehousing drugs on their way to
the pharmacy?
Mr. RICHARDSON. Let me just
make this case: Those that are regis-
tered with the DEA, those that store
and are registered with the DEA are
included. So storage operators are in-
cluded.
Mr. BARTLETT. Mr. Chairman, will
the gentleman yield?
Mr. WILLIAMS. I yield to the gen-
tleman from Texas.
Mr. BARTLETT. Mr. Chairman, I
thank the gentleman for yielding, be-
cause I think the gentleman is doing
the House a service in pointing out
what the Richardson amendment in-
cludes.
I think it is important to read para-
graph 2 of the amendment. It would
be administered or permitted to be ad-
ministered only to an employee or pro-
spective employee who would have
direct access to the manufacture, stor-
age, distribution, or sale of controlled
substances. So whether it is a truck
driver or a pharmacy or a pharmacist
or anyone else, it is only employees
who have direct access to the sub-
stance itself. I think that is a fair
place to draw the line. A truck driver
who does not have access to the con-
trolled substance is no threat, and,
therefore, this amendment would not
apply to him.
Mr. WILLIAMS. Mr. Chairman, let
me reclaim my time. I appreciate the
gentleman's assistance and his expla-
nation.
Relating to these substances in
schedules 1, 2, 3, and 4, which appar-
ently are the only controlled sub-
stances the gentleman's amendment
covers, are those substances always
sealed? Are they always in a certain
state of security by having been sealed
as they are transported and stored ac-
cording to DEA's regulations?
Mr. RICHARDSON. Mr. Chairman,
if the gentleman will yield, that is cor-
rect. They are also sealed within the
truck, meaning that controlled sub-
stances are doubled-sealed during
transportation.
Mr. WILLIAMS. So as those sub-
stances come across the country and
are put in a warehouse, does the
manner in which they are sealed mean
that the people dealing with them in
the warehouse are not subject to a lie
detector examination under the gen-
tleman's amendment?
Mr. RICHARDSON. They are cov-
ered under the bill.
Mr. WILLIAMS. So the truck driver
would not be the person who unloads
the truck and stores the drugs, so he
would not be subject to examination?
Mr. RICHARDSON. The gentleman
is correct.
Mr. WILLIAMS. Mr. Chairman, if
the author of the amendment will con-
tinue to respond, let me say that I ap-
preciate his willingness to engage in
this colloquy.
Does the author of the amendment
know what the position of the Ameri-
can Pharmaceutical Association is on
the gentleman's amendment?
Mr. RICHARDSON. Mr. Chairman,
my understanding is that the entire
pharmaceutical industry, the drug
manufacturers and distributors, are in
support of the legislation.
Mr. WILLIAMS. Mr. Chairman, the
gentleman is wrong. Let me read from
a letter to me from the American
Pharmaceutical Association. I will
read only the one sentence which
sums up the association's position.
The CHAIRMAN. The time of the
gentleman from Montana [Mr. WIL-
LIAMS] has expired.
(By unanimous consent, Mr. WIL-
LIAMS was allowed to proceed for 2 ad-
ditional minutes.)
Mr. WILLIAMS. Mr. Chairman, let
me say to my colleagues that I want to
share this with them because I believe
this is very important. The American
Pharmaceutical Association has writ-
ten this:
"The American Pharmaceutical As-
sociation's position is that polygraph
tests should not be used as a means of
preemployment screening in pharma-
cies, should not be used in pharmacies
for routine security checking of em-
ployees"-and the amendment offered
by the gentleman from New Jersey
may have taken care of that-and fi-
nally. "should not be used in pharma-
cies in the course of investigation for
causes."
The American Pharmaceutical Asso-
ciation itself is against this amend-
ment. I ask, why is that? Because they
know this gadget does not work. It cre-
ates a false sense of security, and they
do not want it. They do not want the
pharmacists and the drugstore owners
of America to be relying on a gadget
that does not work. The American
Pharmaceutical Association knows
that we cannot protect the American
public when we let pharmacists and
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November 4, 1987
CONGRESSIONAL RECORD -- HOUSE H 9577
drugstore owners depend upon this
faulty gadget.
Mr. RICHARDSON. Mr. Chairman,
will the gentleman yield?
Mr. WILLIAMS. I yield to the gen-
tleman from New Mexico.
Mr. RICHARDSON. Mr. Chairman,
I would like to make the point very
clear that while the gentleman may
have a letter from the American Phar-
maceutical Association, they are very
limited in being involved in the storing
and distribution of drugs as prescribed
in this amendment.
Let me just say that the National
Association of Chain Dealer Drugs is
supportive of this bill. Most drug man-
ufacturers have sent many letters
throughout the Congress in support of
this legislation. Law enforcement
agencies support it. Perhaps that
small group that the gentleman men-
tions is not included.
The CHAIRMAN. The time of the
gentleman from Montana [Mr. WIL-
LIAMS] has again expired.
(By unanimous consent, Mr. WIL-
LIAMS was allowed to proceed for 2 ad-
ditional minutes.)
Mr. RICHARDSON. Mr. Chairman,
will the gentleman yield?
Mr. WILLIAMS. I yield to the gen-
tleman from New Mexico.
C 1740
Mr. RICHARDSON. Mr. Chairman,
I thank the gentleman for yielding.
The implication that the gentleman
is trying to leave is that this is not
supported by a wide group of people
and companies in the drug business,
and that is not the case.
I wanted to point that out to the
gentleman.
Mr. WILLIAMS. The American
Pharmaceutical Association was
founded in 1852, and it is the leader in
the professional and scientific ad-
vancement of this industry.
This gets at the point of it. Of
course, we want to protect America
from a misuse of these drugs, but here
is the association that is most impor-
tant for this matter saying do not
allow the lie-detector gadget to be
used to protect America from these
drugs, because it is no good. It is
faulty.
We use it now, and it does not work.
It is part of the reason we have a hem-
orrhaging in our industry. Instead,
they want to come up with good per-
sonnel practices. They want the re-
spected official law enforcement agen-
cies of the United States, the public
agencies, to be investigating these
matters, not the manager of Drug
Fair. That is our problem now.
We are trying to tighten up this
hemorrhaging in America with regard
to the illegal use of drugs, but I
submit, and the American Pharmaceu-
tical Association agrees, that contin-
ued use of the lie detector will do the
reverse of what the gentleman from
New Mexico and others are trying to
do here this evening.
Mr. SHAW. Mr. Chairman, I move to
strike the requisite number of words.
Mr. Chairman, I think that the gen-
tleman who just spoke is missing the
point. We are not here to represent
the American Pharmaceutical Associa-
tion or any other employer, and we are
not here to look at strictly protecting
the rights of the employee.
We must not lose the big picture
which is, if we are going to pass this
bill, which I believe is ill-advised, that
it has to be pared down to exempt cer-
tain categories.
We have done it earlier in areas that
have security sensitivity by a very
narrow vote. Now we are going to have
an opportunity to do this again, and in
casting your vote, do not talk about
the American Pharmaceutical Associa-
tion. Do not look at Dart Drug or
Drug Fair, but look at the kids out
there that are getting these drugs, the
misguided drugs that are illegally
coming onto the market and being di-
verted. It is a big problem.
The gentleman from New Jersey
[Mr. HUGHES) said he did not think he
could support this legislation without
this very important amendment in it.
Whereas I do not intend to support
this legislation on final passage, we
are very kindly cleaning it up and get-
ting rid of some of the sensitive areas
that must be addressed.
The gentleman from Montana has
made numerous references like it is a
piece of witchcraft. It is not.
Some 30 percent of the Fortune 500
companies in this country today use
the polygraph test. It is not altogether
correct, I know that; and there are
some stopgaps and some guarantees
that have to be put in it.
The gentleman from Florida [Mr.
YOUNG) will offer some of these pro-
tections to the employee later which
will make a very, very positive addition
to what is going on here this evening.
Addressing right now the amend-
ment of the gentleman from New
Mexico, the gentleman has pointed
out a very important part of the econ-
omy and commerce that must be made
an exception to.
Mr. RICHARDSON. Mr. Chairman,
will the gentleman yield?
Mr. SHAW. I yield to the gentleman
from New Mexico.
Mr. RICHARDSON. Mr. Chairman,
I thank the gentleman for yielding to
me.
I want to point out here a statement
in support of the amendment by the
National Wholesale Druggists Associa-
tion.
Mr. SHAW. Mr. Chairman, in con-
clusion I would certainly hope that if
we are going to have a vote on this
particular issue, that it be an over-
whelming "yes" vote.
We are going far beyond the rights
of the employee at this particular
point, and we are talking about the
rights of America to be crime free and
drug free as much as possible.
This is a very important amend-
ment, an exception that I hope the
Members will vote for.
Mr. JACOBS. Mr. Chairman, I move
to strike the requisite number of
words.
Mr. Speaker, in speaking of the
Spanish Inquisition, the author of the
novel "Captains from Castille" spoke
of a situation where, "no one was too
innocent to be proved guilty."
I am thinking of an incident about a
year ago when our incumbent Attor-
ney General was before the other
body for confirmation.
It was determined that his official fi-
nancial report, which he had filed and
signed, was false. The issue was wheth-
er it was consciously false or negligent-
ly false.
At that time some commentators
suggested that Mr. Meese, being one
of the leading advocates of the use of
so-called polygraph or lie detector
tests, take a dose of his own medicine,
which might prove to be truth serum,
in order that it be determined with
some reliability whether his false fi-
nancial statement was intentional or
unintentional.
If I recall correctly, Mr. Meese de-
clined to submit to a polygraph test.
That raises an interesting question.
Did he decline to submit to the poly-
graph test because he thought the test
was unreliable, or did he refuse to
submit to that test, because he
thought it was reliable?
Surely one must conclude one or the
other.
The Good Book tells us among the
Ten Commandments, that thou shall
not bear false witness. I wonder if that
only applies to humans, or also to the
contraptions humans have contrived
to manufacture.
If this mechanism is unreliable, and
if we assume the honesty of our own
Attorney General, we must assume
that in his opinion the test is unreli-
able, then one must ask, how does it
suddenly become reliable simply be-
cause it is drug abuse which one is
trying to detect.
If a chicken cannot fly across the
Ohio River to read poetry does it not
follow then that a chicken cannot fly
across the Ohio River to read prose?
If a Member is among those who be-
lieve that the polygraph test is inher-
ently unreliable-as our courts have
repeatedly held-how do drugs make it
reliable?
If, on the other hand. a Member be-
lieves that it is reliable, then why not
apply it to the detection of all crimes?
It is important to me that controlled
substances not be put to illicit use. But
that is not the issue here. The issue is
whether the polygraph which the
courts say is unreliable is somehow
made reliable by a vote of the Con-
gress.
One is reminded of the City Council
which passed an ordinance which said,
"Henceforth and hereafter pigeons
shall not light on city hall."
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CONGRESSIONAL RECORD - HOUSE Xutember 4, I>( i
If this polygraph machine is unreli-
a le. can an act by the Congress make
it reliable? No.
Mr. HUGHES. Mr. Chairman, will
the gentleman yield?
Mr. JACOBS. I yield to the gentle-
man from New Jersey.
Mr. HUGHES. Mr. Chairman. I
thank the gentleman for yielding to
me.
I thank the gentleman for the gen-
tleman's statement, and I do not agree
with the gentleman with regard to the
use of the lie detector, the polygraph
as a tool in law enforcement; but I
would suggest that the gentleman
would have problems with the bill,, be-
cause the bill carves out exceptions for
government, law enforcement, intelli-
gence-gathering.
Mr. JACOBS. I would suggest. all of
the Members should have problems
with the logic discussed in the last
couple of hours here.
I think this is definitely a case for
consistency. Either the gun shoots bul-
lets or blanks. It it shoots bullets. it
may be useful; and if it shoots blanks
and impugns the reputation of a thor-
oughly honest citizen, which I assume
Mr. Meese considers himself to be
when he did not take the test, then it
is not useful.
Mr. GUNDERSON. Mr. Chairman. I
move to strike the requisite number of
words.
(Mr. GUNDERSON asked and was
given permission to revise and extend
his remarks.)
Mr. GUNDERSON. Mr. Chairman. I
rise, first of all, to respond to the gen-
tleman from Montana, who suggests
that somehow because the American
Pharmaceutical Association is opposed
to this amendment, that it is a bad
amendment.
The fact is that the Drug Enforce-
ment Administration estimates that
the employees are stealing between
500,000 to more than 1 million doses of
dangerous drugs per year.
And let us be very blunt about it.
It is the American Pharmaceutical
Association that apparently has some
of their employees, not the majority,
but some of their employees who are
probably stealing those drugs who do
not want to be subject to a lie-detector
test. That is why they have taken that
position.
The pharmaceutical manufacturers
and distributors are in favor of it.
Look as well at what the gentleman
from Montana said last year on the
floor of the House when we considered
this legislation.
He stood up before the House and
said. "Likewise, the bill before us pro-
vides exemptions for those private
businesses that directly impact on our
national security or public health. We
will be accepting amendments to pro-
vide other exemptions regarding dan.
gerous drum security guards. and the
protection of electric and nuclear pow-
erplants and public transportation. We
will accept those amendments, because
they are a matter of protecting the na-
tional health and safety."
That is what we are talking about in
this particular amendment. We are
talking about the fact that we need to
protect the health and safety of our
young children. as the gentleman from
Florida stated.
This is not a cure-all, but a tool. The
amendment is very clear, and as the
amendment by the gentleman from
New Jersey says, when we are dealing
with present employees, we make sure
that testing is incident-specific, not
random. And that harassment and
other abuses are addressed.
If we cannot pass this amendment,
then we are suggesting that the so-
called war on drugs that this Congress
waged last year was just a joke.
The CHAIRMAN. The question is on
the amendment offered by the gentle-
man from New Jersey (Mr. HUGHES) to
the amendment offered by the gentle-
man from New Mexico [Mr. Ricxaxn-
SON].
The amendment to the amendment
was agreed to.
The CHAIRMAN. The question is on
the amendment offered by the gentle-
man from New Mexico [Mr. RICHARD-
soN], as amended.
The question was taken; and the
Chairman announced that the ayes
appeared to have it.
RECORDED VOTE
Mr. RICHARDSON. Mr. Chairman,
I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic
device, and there were-ayes 313, noes
105, not voting 15, as follows:
(Roll No. 410]
AYES-313
Akaka
Carr
English
Alexander
Chandler
Erdreich
Anderson
Chapman
Espy
Andrews
Chappell
Parcel]
Annunzio
Cheney
Pawell
Anthony
Clarke
Fazio
Archer
Coats
Felghan
Armey
Coble
Fields
Arpin
Coelho
Fish
Badham
Coleman (MO)
Flippo
Baker
Coleman (TX)
Florio
Ballenger
Combest
Foley
Barnard
Conte
Ford (TN)
Bartlett
Cooper
Frenzel
Barton
Coughlin
Frost
Bateman
Courter
Gallegly
Bennett
Craig
Gallo
Bentley
Dannemeyer
Gsydas
Bereuter
Darden
Gekas
Bevill
Daub
Gibbons
Bilbray
Davis (IL)
Gilman
Bilirakis
Davis (MI)
Gingrich
Bliley
de It Garza
Glickman
Boggs
DeLay
Goodling
Boland
Derrick
Gordon
Bunker
DeWlne
Oradison
Borski
Dickinson
Grant
Bosco
Dicks
Gray (IL)
Boulter
Dingell
Green
Brennan
DloGuardl
Gregg
Broomfield
Dixon
Gturin
Brown (CA)
Donnelly
Gunderson
Bryant
Dorgan (ND)
Hall (OH)
Buechner
Dornan (CA)
Ball (Tx)
Bunning
Dowdy
Hamilton
Burton
Dreier
Harn nerschmldt
Bustamants
Dwyer
Hansen
Byron
Dyson
Harris
Callahan
Early
Hastert
Campbell
Eckart
Hatcher
Cardin
Edwards (OK)
Hayes (LA)
Carper
Etnersan
Betsey
HI ~ fner
Mfume
Shum'vay
Henry
~? ^a
suer
Herger
M: ,he!
Sissky
Hiler
Miiler OH)
Skeen
Hochbrueckner
Molinari
Skelton
Holloway
Mollohan
Slattery
Hopkins
Mcntgomery
Fla:ghter NY)
Horton
moornead
Sia,.ghter (VA)
Houghton
Morrison (WA)
Smith, FL)
Hubbard
MLazek
Smith ( IA)
Huckaby
Murphy
Smith tNE)
Hughes
%1:rt:ia
Smith, NJ)
Hunter
Myers
Smith (Tx)
Hutto
Nagle
Smith. Denny
Hyde
Natcner
FOR)
Inhofe
Nelson
Smith. Robert
Ireland
Nichols
NH)
Jenkins
Nelson
Smith. Robert
Johnson (SD)
Nowak
,OR)
Jones (NC)
Olin
Snowe
Jones (TN)
Ortiz
Solomon
Kanjorski
Oxley
Spence
Kasich
Packard
Spratt
Kleczka
Panetta
St Germain
Kolbe
Parris
Staggers
Kolter
Pashayan
Stallings
Konnyu
Patterson
Stangeland
Kyl
Pepper
Stenholm
Lagomarsino
Petri
Stratton
Lancaster
Pickett
Stump
Lantos
Pickle
Sundquist
Latta
Porter
Sweeney
Leach (IA)
Price (IL)
Swindail
Leath (TX)
Price eNC)
Tallon
Lent
Purcell
Tauke
Lewis (CA)
Quillen
Tauxin
Lewis (FL)
Rahall
Taylor
Lightfoot
Ravenel
Thomas(CA)
Livingston
Ray
Thomas(GA)
Lloyd
Regula
Tomcelll
Lott
Rhodes
Tralieant
Lowery (CA)
Richardson
Udall
Lujan
Rinaldo
Upton
Luken. Thomas
Ritter
Valentine
Lukens. Donald
Roberts
Vander Jagt
Lungren
Robinson
Voikmer
Mack
Roe
Vucanovich
Madigan
Rogers
Wa)gren
Marlene
Rose
Walker
Martin (IL)
Rostenkowski
Watkins
Martin (NY)
Roth
Weber
Martinez
Roukema
Weldon
Mavroules
Rowland (GA)
Whittaker
Mazzoli
Saiki
Whitten
McCandless
Sawyer
Wilson
McCollum
Saxton
wise
McCurdy
Schaefer
Wolf
McDade
&heuer
Wortley
McEwen
Schneider
Wylie
McGrath
Schroeder
Yatron
McHugh
Schuette
Young (AK)
McMillan (NC)
Schulze
Young (FL)
McMillen (MD)
Sensenbrenner
Meyers
Shaw
NOES-105
Ackerman
Hawkins
Owens (NY)
Applegate
Hayes (IL)
Pease
Atkins
Hertel
Pelosl
AuCoin
Hoyer
Penny
Bates
Jacobs
Perkins
Beilenson
Jeffords
Ranges
Berman
Johnson (CT)
Ridge
Boehiert
Jontz
Rodino
Bonior
Kastenmeier
Rowland (CT)
Boucher
Kennedy
Roybal
Boxer
Kennelly
Russo
Brooks
Kildee
Sabo
Bruce
Kostmayer
Savage
Clay
LaFalce
Schumer
Clinger
Lehman (CA)
Shays
Collins
Lehman (FL)
Slkorskl
Conyers
Leland
Skaggs
Coyne
Levin(MI)
Solara
Crockett
Levine (CA)
Stark
DeFazio
Lewis (GA)
Stokes
Dellums
Lowry (WA)
Studds
Downey
Manton
Swift
Durbin
Markey
Synar
Dymally
Matsui
Torres
Edwards (CA)
McCloskey
Towns
Evans
Miller (CA)
Traxler
Flake
Miller (WA.)
Vento
Foglietta
Mints
Vlacloeky
Ford (MI)
Moakley
Waxman
Frank
Moody
Weiss
Garcia
More-la
Wheat
Oejdenson
Morrison (CT)
WUllama
Gonzales
Neal
Wolpe
Grandy
Oberstar
Wyden
Gray (PA)
Obey
Yates
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 Declassified in Part - Sanitized Copy Approved for Release 2011/12/19: CIA-RDP89GO0643R001200010021-0
November 4, 1987 CONGRESSIONAL RECORD - HOUSE H 9579
NOT VOTING-15
Biaggi
Gephardt
MacKay
Brown (CO)
Howard
Oskar
Crane
Kaptur
Owens (UT)
Daniel
Kemp
Roemer
Dunn
Lipinski
Sharp
0 1810
Messrs. EDWARDS of California,
CLINGER, HOYER, ROYBAL,
WAXMAN, OBEY, MANTON.
HERTEL, and RUSSO changed their
votes from "aye" to "no."
Messrs. MARTINEZ. MAVROULES.
and ROBINSON changed their votes
from "no" to "aye."
So the amendment, as amended, was
agreed to.
The result of the vote was an-
nounced as above recorded.
AMENDMENTS OFFERED BY MR. GUNDERSON
Mr. GUNDERSON. Mr. Chairman, I
offer several amendments.
The Clerk read as follows:
Amendments offered by Mr. GUNDERSON:
Page 8, after line 13, insert the following
new subsection:
(d) EXEMPTION FOR ONGOING INVESTIGA-
TIONS.-Subject to section 7, this Act shall
not prohibit any employer from requesting
an employee to submit to a lie detector test
if-
(1) the test is administered in connection
with any ongoing investigation of criminal
or other misconduct involving, or potential-
ly involving, significant loss or injury to the
employer's business:
(2) the employee had access to any person
or property which is the subject of the in-
vestigation: and
(3) the employer has a reasonable suspi-
cion that the employee was involved In the
incident or activity under investigation.
Page 8, after line 13, insert the following
new sections (and redesignate succeeding
sections accordingly):
SEC. 7. RESTRICTIONS ON EXEMPTIONS.
(a) OBLIGATION TO COMPLY WITH CERTAIN
LAws AND AGREEMENTS.-Any exemption pro-
vided under section 6 (other than subsec-
tions (a), (b), and (c) of such section) shall
not diminish an employer's obligation to
comply with-
(1) applicable State and local law, and
(2) any negotiated collective bargaining
agreement, which limit or prohibit the use
of lie detector tests on such employees.
(b) TEST MAY NOT BE SOLE BASIS FOR AD-
VERSE EMPLOYMENT ACTION.-Any such ex-
emption shall not apply unless the employer
can demonstrate that the results of an anal-
ysis of lie detector charts are not used as
the sole basis upon which an employee or
prospective employee is discharged. dis-
missed, disciplined in any manner, or denied
employment or promotion.
(c) RIGHTS OF EXAMINEE.-SUCK exemp-
tions shall not apply unless the require-
ments described in paragraphs (1), (2), and
(3) are met.
(1) PRETEST PHASE.-During the pretest
phase the prospective examinee-
(A) is provided with reasonable written
notice of the date, time, and location of the
test. and of such examinee's right to obtain
and consult with legal counsel throughout
all phases of the test:
(B) is not subjected to prolonged interro-
gation:
(C) is informed of the nature and charac-
teristics of the tests and of the instruments
involved:
(D) is informed in writing as to whether
(1) the testing area contains a two-way
mirror, a camera, or any other device
through which the test can be observed, or
(ii) the test will involve any other device, in-
cluding any device for recording or monitor-
ing the conversation;
(E) is informed of such examinee's privi-
lege against self-incrimination under the
Fifth Amendment of the Constitution of
the United States;
(F) is provided an opportunity to review
all questions (technical or relevant) to be
asked during the test and is informed of the
right to terminate the test at any time:
(G) signs a notice informing such examin-
ee of-
(i) the limitations imposed under this sec-
tion; and
(it) the legal rights and remedies available
to the examinee if the lie detector test is
not conducted in accordance with this Act.
(2) ACTQAL TESTING FHAss.-During the
actual testing phase-
(A) the examinee is not asked any ques-
tions by the examiner concerning-
(I) religious beliefs or affiliations;
(ii) beliefs or opinions regarding racial
matters:
(iii) political beliefs or affiliations:
(lv) any matter relating to sexual behavior
or any sexual behavior of such employee or
prospective employee, unless sexual behav-
ior is specifically related to job performance
or inquiry into such behavior is required
under State law; and
(v) beliefs, affiliations, or opinions regard-
ing unions or labor organizations;
(B) the examinee is permitted to termi-
nate the test at any time;
(C) the examiner does not ask such exam-
inee any question (technical or relevant)
during the test which was not presented in
writing for review to such examinee before
the test;
(D) the examiner does not ask technical
questions of the examinee in a manner
which is designed to embarrass, degrade, or
needlessly intrude upon the examinee; and
(E) the examiner does not conduct a test
on an examinee who, in the opinion of the
examiner, is inhibited from responding co-
herently to the test because of-
(i) mental or physical fatigue,
(ii) undue emotional stress or intoxication
due to excessive use of alcohol, sedatives,
stimulants, or tranquilizers,
(iii) addiction to narcotics,
(iv) known mental disorder, or
(v) significant physical discomfort or
physical disability that, in and of itself,
might cause abnormal responses during the
test.
(3) POST-TEST PHAsE.-During the post-test
phase, the examinee-
(A) is further interviewed on the basis of
the results of the test; and
(B) is provided with a written copy of-
(i) any opinion and conclusion rendered as
a result of the test,
(ii) questions asked during the test, pre-
sented along with the corresponding
charted responses, and
(iii) upon the request of the employee, a
written description of the incident or activi-
ty in connection with which the test is ad-
ministered.
(d) QUALIFICATIONS or EXAMINER.-Such
exemptions shall not apply unless the indi-
vidual who conducts the lie detector test-
(1) is at least twenty-one years of age;
(2) is a citizen of the United States:
(3) is a person of good moral character:
(4) has complied with all required laws
and regulations established by licensing and
regulatory authorities in the State in which
the test is to be conducted;
(5)(A) has successfully completed a formal
training course regarding the use of lie de-
tector tests that has been approved by the
State in which the test is to be conducted or
by the Secretary of Labor; and
(B) has completed a lie detector test in-
ternship of not less than 6 months duration
under the direct supervision of an examiner
who has met the requirements of this sec-
tion;
(8) maintains a minimum of $50,000 bond-
ing or an equivalent amount of professional
liability coverage;
(7) uses an instrument that records con-
tinuously, visually, permanently, and simul-
taneously changes in the cardiovascular,
respiratory, and electrodermal patterns as
minimum instrumentation standards;
(8) bases an opinion of deception indicated
upon evaluation of changes in physiological
activity or reactivity in the cardiovascular,
respiratory, and electrodermal patterns on
the lie detector charts;
(9) renders any opinion or conclusion re-
garding the test-
(A) in writing and solely on the basis of an
analysis of the lie detector charts;
(B) which does not contain information
other than admissions, information, case
facts, and interpretation of the charts rele-
vant to the purpose and stated objectives of
the test; and
(C) which does not include any recommen-
dation concerning the employment of the
examinee;
(10) does not conduct and complete more
than 6 lie detector tests on the calendar day
on which the test is given and does not con-
duct any such test for less than a 90-minute
duration; and
(11) maintains all opinions, reports,
charts, written questions, lists, and other
records relating to the test for a minimum
period of 2 years after administration of the
test.
SEC B. DISCLOSURE OF INFORMATION.
(a) Iw Gzrixa -A person, other than the
examinee, may not disclose information ob-
tained during a lie detector test, except as
provided in this section.
(b) PsRMrrrm DlscLosuaxs.-A polygraph
examiner, polygraph trainee, or employee of
a polygraph examiner may disclose informa-
tion acquired from a lie detector test only
to-
(1) the examinee or any other person spe-
cifically designated in writing by the exam-
inee:
(2) the employer that requested the test;
or
(3XA) any person or any governmental
agency that requested the test, or
(B) any person, as required by due process
of law. who obtained a warrant to obtain
such information in a court of competent
jurisdiction.
(C) DIScLOsURE BY EMPLOYER.-An employ-
er (other than an employer covered under
section 6(a), 6(b), or 6(c), for whom a lie de-
tector test is conducted may disclose infor-
mation from the test only to a person de-
scribed in subsection (b).
Page 8, strike lines 16 through 22. and in-
sert the following:
(1) the term "lie detector test" includes-
(A) any examination involving the use of
any polygraph. deceptograph, voice stress
analyzer, psychological stress evaluator, or
any other similar device (whether mechani-
cal or electrical) which is used, or the re-
sults of which are used, for the purpose of
rendering a diagnostic opinion regarding the
hones:v of an individual: and
(B) the testing phases described in para-
graphs (1). (2), and (3) of section 7(c);
Page 9. line 2, strike "and".
Page 9. line 5. strike the period and insert
a semicolon.
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119580 CONGRESSIONAL RECORD - HOUSE
Page 9. after line 5, insert the following
new subsections:
(4) the term "relevant question" means
any lie detector test question which pertains
directly to the matter under investigation
with respect to which the examinee is being
tt?sted: and
(5) the term "technical question" means
any control, symptomatic, or neutral ques-
tion which, although not relevant. is de-
signed to be used as a measure against
which relevant responses may be measured.
Mr. GUNDERSON (during the read-
ing). Mr. Chairman, I ask unanimous
consent that the amendments be con-
sidered en bloc, considered as read.
and printed in the Rrcona.
The CHAIRMAN. Is there objection
to the request of the gentleman from
Wisconsin?
There was no objection.
(Mr. GUNDERSON asked and was
given permission to revise and extend
his remarks.)
Mr. GUNDERSON. Mr. Chairman.
the amendment that is now before the
House Is an amendment that is being
offered by myself and the gentleman
from Texas [Mr. Srimxoiai] jointly.
This amendment will provide and
allow the use of the polygraph for in-
vestigative testing of current employ-
ees.
I want to make it very clear that
what we are trying to do with this par-
ticular amendment is respond both to
the legitimate needs of American busi-
ness and industry and at the same
time deal with the overuse and abuse
of the polygraph.
How do we do that? First of all. at
least 75 percent of all polygraph tests
in this country are used for preem-
ployment screening. I think most
people will agree that perhaps the big-
gest concern over the polygraph is
that it is used so extensively in preem-
ployment. When used for preemploy-
ment screening, the polygraph is First,
intimidating; and. No. 2. It tends to be
the sole determinant of whether the
job applicant is or is not hired or of-
fered that Job. Yet, as we go through
the long litany of concerns here today,
we talk about the climb of the exam's
use in business.
The amendment before us. as I indi-
cated, tries to respond to the particu-
lar concerns that I think many people
have raised with regard to this legisla-
tion that Is now before us. The amend-
ment does so in a way that does not
handicap or absolutely handcuff the
ability of business and Industry in this
country to deal with the legitimate
threat of internal theft and crimes
within Industry in this country. First
of all there is great concern about
whether or not the polygraph exami-
nation is ever accurate. I will point out
that the scientific evidence clearly
suggests, and the Office of Technology
Assessment study indicates that the
polygraph shows meaningful scientific
evidence of validity when it Is focused
in the area of Investigations of specific
criminal activity.
That is exactly what this amend-
ment focuses upon doing.
0 1820
In addition to that, the amendment
assures the fair conduct of polygraph
testing by providing strict regulations
on such testing that will guarantee
that any polygraph examination that
is used under this act will protect not
only the rights of the employer but
equally the rights of the employee.
So the legislation before us is what I
would call the perfect middle ground.
No. 1, it eliminates the abuse, No. 2, it
eliminates the majority of the exams.
Over 75 percent of the exams would be
eliminated or not allowed with this
particular amendment, and yet it also
would be consistent with current gov-
ernment policies-saying if we are
going to allow the use of the poly-
graph in specific incidents and specific
cases here within the Federal Govern-
ment, we would do the same in the pri-
vate sector.
Mr. Chairman, I want to point out to
my colleagues in closing that this
amendment probably has broader sup-
port from the outside community than
any other amendment that has been
offered earlier today or will be offered
from here on out. It Is endorsed by the
American Retail Federation which
consists of 24 different groups, by the
National Mass Retailing Institute, the
Food Marketing Institute, the Nation-
al Grocers Association, the National
Association of Chain Drug Stores, and
the National Retail Merchants Asso-
ciation.
I would also point out to my col-
leagues on the other side of the aisle
that they should be aware that many
people in the other body. including
Senator Ksxxtn', believe that this ap-
proach may be the proper middle
ground. It bans the use of the poly-
graph for preemployment testing, but
it clearly allows the use of the poly-
graph, not as the sole tool, but as one
of many investigatory tools once a
person is on the Job. there is a specific
incident, where that person is under
reasonable suspicion, and yes, only
when that person has a work history
already on board.
I would encourage my colleagues to
accept and support this particular
amendment. It will make the legisla-
tion in front of us much. much better.
I would also suggest it would en-
hance the chances of enactment a
great deal.
Mr. STENHOLM. Mr. Chairman, I
move to strike the last word. and I rise
In support of the amendment,
(Mr. STENHOLM asked and was
given permission to revise and extend
his remarks.)
Mr. STENHOLM. Mr. Chairman, I
rise in support of this amendment and
strongly urge my colleagues to vote for
the Gunderson-Stenholm amendment,
If my colleagues are looking today
for an amendment that is moderate
and measured, that takes a thoughtful
and circumspect approach, that maxi-
mises the potential for beneficial poly-
graph testing while preventing abuses
Noeember4, 1387
and careless procedures, this, Mdr.
Chairman, is that amendment.
Far from offering a simple, hostile
amendment, we are proposing changes
that solve many of the problems cre-
ated by the shotgun approach taken
by H.R. 1212 and more than adequate-
ly address the problems that motivat-
ed the underlying bill. I commend my
friend, STS GUNDgRSON, for his hard
work and his thoroughness in develop-
ing this amendment.
This amendment removes the ran-
domness that the bill's supporters
have attacked. We would allow testing
that relates only to a specific incident
of theft, criminal activity, or other
misconduct, and would affect only
those employees under reasonable sus-
picion of involvement.
In other words, rather than use as a
prehire, screening device, our amend-
ment focuses on testing as an investi-
gative device relating only to current
employees. Moreover. Congress' own
Office of Technology Assessment has
found that the accuracy and reliability
of polygraph testing increases marked-
ly with incident-specific applications.
And there are ample regulatory pro-
tections In our amendment to prevent
the investigative device from going too
far.
First, irrelevant personal questions
are prohibited, such as those relating
to religious, political, union, or other
affiliation. All questions must pertain
to the misconduct being investigated.
Employees would be counseled in ad-
vance on exactly what questions would
be asked, what procedure would be
used, and how the testing equipment
works.
Employees would be provided Imme-
diately with a copy and discussion of
test results and guaranteed complete
confidentiality.
To guarantee that all testing is done
In a thorough and deliberate manner,
each test must last at least 90 minutes
and no more than six tests could be
administered in a single day by an ex-
aminer.
Finally, unlike H.R. 1212, which ar-
bitrarily second-guesses those State
legislatures that do not find a total
polygraph ban to be in the public in-
terest, the Gunderson-Stenholm
amendment is a minimum standard-
and a high-minimum standard, at
that-and would not preempt States
from enacting stricter laws.
This amendment goes much more
than halfway toward meeting the con-
cerns raised by supporters of H.R.
1212. At the same time, it would do
much to allow the reasonable and con-
structive use of polygraph tests to con-
tinue protecting the property and per-
sonal safety of innocent individuals.
Mr. GRANDY. Mr. Chairman. I
move to strike the requisite number of
words and I rise in support of the
amendment.
Mr. Chairman. this Is the only
amendment that I Intend to support
today, and I would like to speak to
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November 4, 1987 CONGRESSIONAL RECORD - HOUSE
those colleagues who are inclined to
perhaps be somewhat questionable
about the outcome of H.R. 1212, who
are concerned about the polygraph
from the worker point of view and
from the businessman's point of view.
It seems to me this is the only
amendment that strikes a balance.
Prior to my addressing the Chamber,
Mr. Chairman, a Member asked does
this amendment penalize the worker
in any way. One only has to read as
far as line 3 to see that the employer
must request an employee to submit to
a test.
A Member asked me does this mean
he will be fined if be does not. It does
not mean that. The employee is pro-
tected here.
But I would say this: The Americn
Medical Association, which does not
support Young-Darden, which sup-
ports H.R. 1212. has said that it will
not support the polygraph in industry
or in the Federal agencies as a preem-
ployment test
In the same article it said the follow-
ing: "Criminal investigations has often
benefited from polygraph usage be-
cause the investigator can focus on the
incident in question, using It as the
basis for selecting relevant and con-
trolled questions in the application of
the test, in the full knowledge that
the detection of deception will not be
absolutely accurate." Nobody is argu-
ing that It will be, but it is closer to ac-
curacy than we will come otherwise. It
is it management tool, one among
many.
I encourage colleagues that have not
supported any of the amendments and
will continue to vote against the ex-
emr ions to vote for Gunderson-Sten-
holl . It provides an option to serve
you: business constituency and to not
compromise the civil rights of Ameri-
can workers.
Mr. WILLIAMS. Mr. Chairman, I
rise in opposition to the amendment.
My colleagues, let us be certain as to
what this amendment does. It allows
ever; employer in the United States to
regt ?e their employee to take a lie de-
tectc test when that employee says
that ,here has been some incident or
other in that business.
Mr. GUNDERSON. Mr. Chairman,
will the gentleman yield on that
point?
Mr. WILLIAMS. I yield to the gen-
tleman from Wisconsin.
Mr. GUNDERSON. Mr. Chairman, I
am only going to ask the gentleman to
read lines 2 and 3. That is absolutely
not correct. "This amendment shall
not prohibit an employer from re-
questng an employee to submit to a
lie dt lector test." There is absolutely
no mandate in this amendment. That
is very, very important, and 1 appreci-
ate the gentleman yielding.
Mr. WILLIAMS. Let me ask the
author of the amendment, in case 1
misread his amendment, first, if he
disagrees that this covers every single
employee in the United States postin-
cid,,nt?
Mr. GUNDERSON. Absolutely.
Mr. WILLIAMS. It does cover every
employee in the United States?
Mr. GUNDERSON. If there is an in-
cident: and there is no random testing.
There has to be a specific crime.
Mr. WILLIAMS. In every industry
with no exceptions?
Mr. GUNDERSON. That is correct.
Mr. WILLIAMS. Then I have a
second question.
Mr. GUNDERSON. With one excep-
tion, if the gentleman will yield, with
one exception. We do not preempt any
State laws. Do not forget there are 41
States that have adopted their own
legislation.
Mr. WILLIAMS. Yes; that has been
true in every amendment that has
been offered, of course. So what the
gentleman is taking exception to is my
indication that an employer can man-
date the test to the employee?
The employee can any I Rill not take
the test. Does the gentleman's amend-
ment then protect that employee's
job?
Mr. GUNDERSON. Sure it does, be-
cause we do not allow the lie detector
to be the sole determinant. Therefore
a refusal to take a lie detector test
cannot be the basis on which one is
dismissed.
Mr. WILLIAMS. I do not see the lan-
guage where the gentleman disallows
an employer from firing an employee
who refuse to take the test.
Mr. GUNDERSON. The gentleman
can certainly see the lanugage on sole
determinant because that is on page 2,
and it states that the test may not be
the sole basis for adverse employment
action. It also puts the burden of proof
on the employer.
Mr. WILLIAMS. I appreciate the
gentleman's explanation.
So let us understand it now, an em-
ployer can request, mind you, of their
employee, every employee in America,
request them to take the lie detector
test on any incident. The incident.
mind you, does not have to be report-
ed to the police. The incident, in fact,
does not have to involve loss or injury
to the employer, only potential loss or
injury.
So do my colleagues see what is hap-
pening? Every employer in America, if
this passes, can claim an incident has
happened. They do not have to report
it to the police. It does not have to
become an official act on the part of
the employer. They do not even have
to demonstrate that the incident took
place or that it created a loss to the
employer, but they can say we would
like you to volunteer. I admit the gen-
tleman has that in the amendment, we
would like you all to volunteer to take
this lie detector test.
Would my colleagues want to be the
one employee in America that does
not agree to volunteer?
This opens this bill as wide, wider,
than any amendment which has yet
been offered, and I urge my colleagues
to oppose it.
H 1581
The CHAIRMAN. The Question is on
the amendments offered by the gen-
tleman from Wisconsin (Mr. (3unu R-
SON].
The question was taken; and the
Chairman announced that the noes
appeared to have It.
RECORDED VOTE
Mr. GUNDERSON. Mr. Chairman, I
demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic
device. and there were-ayes 197, noes
220, not voting 16, as follows:
[Roll No. 411)
AYES-197
Anderson
Hansen
Parris
Archer
Hastert
Pashayan
Badham
Hatcher
Patterson
Baker
Hayes (LA)
Petri
BaBe nger
Hefley
Pickett
Barnard
Henry
Porter
Bartlett
Herger
Pursell
Ban on
Hiier
Quillen
Bateman
Holloway
Ravenel
Bentley
Hopkins
Ray
Bereuler
Boughton
Regula
Bthrakis
Hubbard
Rhodes
Bliley
Huckaby
Ritter
Bouiter
Hugnes
Roberts
Broom field
Hunter
Rogers
Buechner
Hutto
Roth
Bunning
Hyde
Roukema
Burton
Inhofe
Rowland (GA)
Byron
Inland
Saiki
Callahan
Jeffords
Saxton
Campbell
Johnsen (Cr)
Schaefer
Chandler
Jones (NC;
Schuette
Chapman
Jones (TN)
Schulze
Chappell
Kasich
Sensenbrenner
Cheney
Kolbe
Shaw
Clarke
Konuyu
Shumway
Clinger
Kyl
Shuster
Coats
Iagomatsno
Sis)aky
Coble
Lancaster
Skeen
Coleman (MO)
Latta
Slaughter (VA)
Combest
Leath (TX)
Smith (NE)
Cooper
Lent
Smith (TX)
Courter
Lewis ICA)
Smith, Denny
Craig
Lewis (FL)
(OR)
Dannemcyer
Lightfoot
Smith. Robert
Darden
L)vingtoei
(NH)
Daub
Lloyd
Smith, Robert
de la Garza
Lott
(OR)
Delay
Lowery (CA)
Solomon
Derrick
Lujan
Spence
Dewing
Luken. Thomas
Spratt
Dickinson
Lukers, Donald
Stangeland
DioGuardi
Lungren
Stenholm
Dorgan ND)
Mack
Stratton
Dornan (CA)
MacKay
Stump
Dreier
Madigan
Sundquist
Durbin
Marlenee
Sweeney
Edwards (OK)
Martin (IL)
Swindall
Emerson
Martin. (NY)
Talion
English
McCandless
Tauzin
Faweli
McCollum
Taylor
Fields
McCurdy
Thomas( CA)
Fish
McEwen
Thomas (GA)
Frenzel
McGrath
Upton
Galiegly
IdcMillar. (NC)
Valentine
Gallo
Mica
Vander Jagi
Gekas
Michel
Volkmer
Gtngrieh
Miiler(OH)
Vucanovich
Goodling
Molinari
Waller
Grad son
Montgomery
Weber
Grandy
Moorhead
Weldon
Grant
Morrison (WA)
wh;-iii. er
Gregg
Nelson
wo')
Giniderson
Nichols
Wortley
Hall - OH
N!.!son
wyite
Hall (Tx)
Oxley
Young IF,-)
Hammerschmidt
Packard
r OES- 220
Ackerman
AuGoir.
Boland
Akaka
Bate
Bonor
Alexander
Bcilenson
Pnnike-
Andrews
Bennett
Hon-ski
Annunzio
Berman
Bosco
Anthony
B( L ti'
Boucher
Appiegsti
Bi!oray
Boxer
Aspin
Boenten
Brennan
Atkins
Boger
Brcioka
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CONGRESSIONAL RECORD - HOUSE Xot'ember 4, 19th
Brown (CA)
Horton
Price (IL)
Bruce
Hoyer
Price (INC)
Bryant
Jacobs
Rahail
Bustamante
Jenkins
Rangel
Cardin
Johnson (SD)
Richardson
Carper
Jontz
Ridge
Carr
Kanjorski
Rinaldo
Clay
Kastenmeier
Robinson
Co;1ho
Kennedy
Rodino
Coleman (TX)
Kennelly
Roe
Collins
ldee
Rase
Conte
eczka
Z
Rostenkowski
Conyers
Kolter
Rowland (CT)
Coyne
Kostmayer
Roybal
Crockett
LaFalce
Russo
Davis (IL)
Lantos
Sabo
Davis (MI)
Leach (1A)
Savage
DeFazio
Lehman (CA)
Sawyer
Dell urns
Lehman (FL)
Scheuer
Dicks
Leland
Schneider
Dingell
Levin (MI)
Schumer
Dixon
Levine (CA)
Shays
Donnelly
Lewis (GA)
Sikorski
Dowdy
Lowry (WA)
Skaggs
Downey
Manton
Skelton
Dwyer
Markey
Slattery
Dymally
Martinez
Slaughter (NY)
Dyson
Matsui
Smith (FL)
Early
Mavroules
Smith (IA)
Eckart
Mazzoll
Smith (NJ)
Edwards (CA)
McCloskey
Snowe
Erdreich
McDade
Solars
Espy
McHugh
St Germain
Evans
McMillen (MD)
Staggers
Fascell
Meyers
Stallings
Fazio
Mfume
Stark
Feighan
Miller (CA)
Stokes
F!ake
Miller (WA)
Studds
Flippo
Mineta
Swift
Florio
Moakley
Synar
Foglietta
Mollohan
Tauke
Foley
Moody
Torres
Ford (MI)
Morelia
Torricelli
Ford (TN)
Morrison (CT)
Towns
Frank
Mrazek
Traficant
Frost
Murphy
Traxler
Garcia
Murtha
Udall
Gaydos
Myers
Vento
Gejdenson
Nagle
Visclosky
Gibbons
Natcher
Walgren
Gilman
Neal
Watkins
Glickman
Nowak
Waxman
Gonzalez
Oakar
Weiss
Gordon
Oberstar
Wheat
Gray (IL)
Obey
Whitten
Gray (PA)
Olin
Williams
Green
Ortiz
Wilson
Guarini
Owens (NY)
Wise
Hamilton
Panetta
Wolpe
Hartis
Pease
Wyden
Hawkins
Pelosi
Yates
Hayes (IL)
Penny
Yatron
Hefner
Pepper
Young (AB)
Hertel
Perkins
Hochbrueckner
Pickle
NOT VOTING-16
Armey
Duncan
Owens (UT)
Biaggi
Gephardt
Roemer
Brown (CO)
Howard
Schroeder
Coughlin
Kaptur
Sharp
Crane
Kemp
Daniel
Lipinski
^ 1835
Mr. TALLON changed his vote from
"no" to "aye."
So the amendments were rejected.
The result of the vote was an-
nounced as above recorded.
AMENDMENT OFFERED BY MR. BARTLETT
Mr. BARTLETT. Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. BARTLETr: On
page 7. line 1. strike "United States Govern-
ment." and insert in lieu thereof the follow-
ing: "United States Government, except for
the Congress of the United States insofar as
it is engaged in functions not directly relat-
ed to national security as determined by
such Congress,".
Mr. ACKERMAN (during the read-
ing). Mr. Chairman, I reserve the right
to object.
Mr. BARTLETT. Mr. Chairman, a
point of order. There is no unanimous-
consent request before the House.
Mr. ACKERMAN. Mr. Chairman, I
make a point of order that the amend-
ment is not germane.
The CHAIRMAN. The gentleman's
request will be addressed at the proper
time as soon as the Clerk has reported
the amendment.
The Clerk will read.
The Clerk concluded the reading of
the amendment.
Mr. ACKERMAN. Mr. Chairman, I
reserve a point of order on the amend-
ment.
Mr. BARTLETT. Mr. Chairman, I
offer an amendment that would essen-
tially unexempt Congress as an em-
ployer from the exemption that is in
this bill. This bill provides a prohibi-
tion of the use of polygraph examina-
tions in all cases for all employers in
private industry within this bill, in all
cases whether it is preemployment or
postemployment.
This bill however exempts Congress
as an employer and would say-the
irony of the bill today is that it would
say that even though we would pro-
hibit nursing home operators from
using a polygraph examination as a
screening tool or as a determinate
device, even though we would prohibit
other industries in other sensitive
areas from the same thing, such as
day care centers and others, we would
continue to permit Congress as an em-
ployer to use a polygraph in preem-
ployment screening and in post-em-
ployment-incident testing.
Now this issue came up earlier in the
debate and it was during the debate
that several examples of polygraphs
that are used by Congress as an em-
ployer were interjected into the
debate, at which point the sponsor of
the legislation, the very honorable
gentleman from Montana, announced
that he would support the inclusion of
Congress in this prohibition so as to
prohibit Congress also from using the
polygraph.
^ 1900
The sponsor of the bill, however,
had not included that prohibition of
Congress in his original bill. So the
House by its vote tonight will be able
to include the prohibition of the use
of the polygraph on Congress as an
employer, just the same as we would
prohibit all other employers in the
country from using the polygraph.
Mr. WALKER. Mr. Chairman, will
the gentleman yield?
Mr. BARTLETT. I yield to the gen-
tleman from Pennsylvania, who origi-
nally brought this subject to the at-
tention of the House.
Mr. WALKER. Mr. Chairman, I
thank the gentleman for yielding.
Do I understand correctly now that
if we pass the bill in the form that it is
at present, we will be specifically
saying that while employers cannot
use polygraph techniques, we in Con-
gress will be able to continue to use
them just as we are now using them in
the Capitol Police force in order to
interview applicants and check their
applications`? Is that the gentleman's
understanding?
Mr. BARTLETT. Mr. Chairman, the
gentleman is correct. Indeed we could
and no doubt would continue to use
the polygraph in the House restaurant
system, in our offices, and for commit-
tee staff and for other locations.
Mr. WALKER. Mr. Chairman, will
the gentleman yield further?
Mr. BARTLETT. I yield further to
the gentleman from Pennsylvania.
Mr. WALKER. So we will have made
a decision as a Congress that nursing
home operators cannot use it, but in
our House restaurant system or in our
Capitol Police force we can use it. It
will be one more case where the hy-
procrisy of Congress would be very evi-
dent, that we require of others that
which we are not willing to do on our
own?
Mr. BARTLETT. Mr. Chairman, the
gentleman is correct.
Mr. WALKER. Mr. Chairman, I find
that most disturbing, and I find it very
disturbing based upon the discussion
that the gentleman mentioned, that
we would now have a point of order
raised against this amendment, be-
cause what we have now is another sit-
uation where, while during debate the
sponsors of the legislation indicate,
"Oh, yes, that sounds like a wonderful
idea." they have this nice little gim-
mick of points of order, and the major-
ity then comes back and says, "Oh,
but I'm sorry, you can't offer that par-
ticular amendment."
I find it very disturbing that we will
find ways to make certain that Con-
gress is exempted from that which we
are requiring of the rest of the coun-
try.
Mr. BARTLETT. The gentleman is
correct. I have served on the Educa-
tion and Labor Committee now for 5
years, and what happens is that when
we have a bill in Congress that applies
to employers, either I or someone on
the committee offers an amendment
to apply that provision to Congress as
an employer, and that amendment is
ruled nongermane because it is not
within our committee's jurisdiction.
So we bring the bill onto the floor,
and when that amendment is within
the jurisdiction of the Congress as a
whole, then we are told, "No, you can't
offer that amendment because it has
to go through the commttee." So it is
not germane in the committee because
it has not gone to the floor, and it is
not germane on the floor because it
has not gone to the committee.
The gentleman is correct. This is not
the first time that has happened. It is
a catch-22 kind of trick to make sure
that Congress exempts itself from all
the laws we pass for everyone else.
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November 4, 1987 CONGRESSIONAL RECORD - HOUSE
Mr. WALKER. Mr. Chairman, will
the gentleman yield further?
POINTS OF ORDER
Mr. FORD of Michigan. Mr. Chair-
man, I have a point of order.
The gentlemen are engaged in their
own colloquy over there. They are not
addressing the point of order.
The CHAIRMAN. The gentleman
from Michigan (Mr. FORD) will state
his point of order.
Mr. FORD of Michigan. Mr. Chair-
man, the gentlemen are out of order.
They are not addressing the point of
order. They are have an interesting
discussion on the practices and proce-
dures of the House.
The CHAIRMAN. The gentleman
has failed to note that no point of
order has been interjected.
Mr. FORD of Michigan. Mr. Chair-
man, the point of order has been re-
served, and the gentleman was asked
to explain his language.
The CHAIRMAN. The gentleman
from Texas (Mr. BARTLETT). the
author of the amendment, has yielded
to the gentleman from Pennsylvania
[Mr. WALKER) during his 5-minute ex-
planation of the amendment.
Mr. FIORD of Michigan. The Chair
does not recognize that there is a res-
ervation of a point of order pending at
this time?
The CHAIRMAN. The gentleman
from New York [Mr. ACKERMANI is
standing on his feet with his reserva-
tion. Nevertheless he has not inter-
posed a point of order as yet. He has
merely reserved a point of order.
Mr. BARTLETT. Mr. Chairman
,
given the hour, I yield back the bal-
ance of my time.
The CHAIRMAN. The gentleman
from Texas [Mr. BAR-, rx] yields back
the balance of his tier e, and the Chair
will inquire, does the gentleman from
New York [Mr. ACKERMAN] still wish
to reserve his point of order?
Mr. ACKERMAN. Mr. Chairman, I
will state my point of order.
The CHAIRMAN. The Chair will
hear the gentleman.
01901,
Mr. ACKERMAN. K 'r. Chairman, I
wish to pursue my point of order.
It appears to me that the amend-
ment is not germane, because it broad-
ens the scope of the co% erage to Gov-
ernment employees; and at the
present time, the bill only covers the
private sector.
The CHAIRMAN. Has the gentle-
man concluded his statement?
Mr. ACKERMAN. It is as simple as
that, Mr. Chairman.
The CHAIRMAN. Does the gentle-
man from Texas wish to be heard on
the point of order?
Mr. BARTLETT. Mr. Chairman, I do
wish to be heard on the point of order.
Mr. Chairman, I would cite in the
rules of the House in section 10.10 on
page 579 the rule of the House that
states the following:
"To a bill extending benefits to a
certain class of employees, an amend-
H 9583
went to extend those benefits to an taro Government employees that we
additional category of employees single out for special treatment.
within that class is germane"-is ger- All the gentleman from Texas is
mane. doing is singling out another group of
Mr. Chairman, my amendment takes people who the gentleman is saying
the bill which extends to a class of em- should not be exempted, so therefore.
ployees which is cited in the definition because the bill was broadened by the
in the bill on page 8, line 23, defining language on page 7. It is this gentle-
the term "employer" as all employers. man's interpretation that the Chair
The sponsor of the bill listed the should rule against the point of order
language directly out of the Fair raised by the gentleman from New
Labor Standards Act amendments York. because the bill already classi-
which includes all employers in this Pies Government employees in the
country, public and private alike. same way that the gentleman from
I then would extend under rule 10.10 Texas seeks to classify Government
an amendment to extend those bene- employees
fits to an additional category of em- The CHAIRMAN. Does the gentle-
ployees within the class that is con- man from New York wish to further
tained in the bill. discuss the point of order?
Mr. Chairman, I have an additional Mr. ACKERMAN. Mr. Chairman, I
point as to why the amendment is in call for the ruling of the Chair.
order in addition to the first one in The CHAIRMAN. The Chair will
this form: and that is that this amend- inform the gentleman from New York
ment is to section 6, the exemptions. that that is within the discretion of
The bill has established a class of the Chair, and the Chair is most anx-
employees of all employees, and then sous to get all aspects of the argu-
exempted all Government employees ments on the point of order.
from that class. Does the gentleman from Texas
I would then very narrowly remove a wish to be heard further?
go of the the class exemption
that is being the s ex- cate- Mr. BARTLETT. I
gory y within
empted, so if the bill exempts all Gov- rely on the fairness of the Chair, and
ernmment employees, then the Congress the fairness of my fellow Texan. .
can remove part of that exemption. What constitutes a class, I call to the
Either the exemption section is out Chair's attention page 3, section 3,
of order, or my amendment is out of lines 2 and 3 of the bill, in which the
order. bill clearly establishes the class of em-
Mr. WALKER. Mr. Chairman, I wish ployers that are covered.
to be heard on the point of order. The class of employers that are cov-
The CHAIRMAN. Does the gentle- ered is established by the following
man from New York wish to be heard one sentence:
further on the point of order? "It shall be unlawful for any em-
Mr. ACKERMAN. Mr. Chairman, ployer engaged in commerce or in the
the operative words that we just heard production of goods for commerce
here were not employees but rather * *
"class of employees." The bill then later narrows, or takes
As described in the proposed legisla- that class and removes one category of
tion, the class pertains to private- that class. Therefore, my amendment
sector employees, thereby exempting is in order, because it applies to the
the entire class of public-sector em- same class that the bill covers; that is,
ployees. any employer engaged in commerce or
Mr. WALKER. Mr. Chairman, I wish in the production of goods for com-
to be heard on the point of order. merce.
The CHAIRMAN. The gentleman I rest on the Chairman's good judg-
from Pennsylvania is recognized for ment.
that purpose. The CHAIRMAN. Does the gentle-
Mr. WALKER. Mr. Chairman, I man from New York have any addi-
would hope the point of order would tional remarks by way of argument?
not be sustained. Mr. ACKERMAN. We await the de-
If the Chair will examine the bill, cision of the Chair.
the Chair will find in section 6 of the The CHAIRMAN (Mr. GONZALEz).
bill that there is indeed an exemption The Chair has carefully evaluated the
for all Government employees, and arguments, having anticipated the
this was done to make certain the bill same, and wishes to state that with
was sent only to the Committee on reference to the citation that the gen-
Education and Labor. tleman from Texas [Mr. BAxrLETTI re-
On page 7 of the bill, the Chair ferred to, section 10.10 chapter 28 of
would find under part (2), (A)(i) any the Procedures in the House, the gen-
individual employed by, or assigned or tleman did not emphasize, and the
detailed to, the National Security Chair will read, "to a bill extending
Agency or the Central Intelligence benefits to a certain class of employ-
Agency: and in the bill itself they ees. an amendment to extend those
begin the process of defining certain benefits to an additional category of
Government employees. employees within that class is ger-
The only people who can be em- mane."
ployed by or particularly detailed are Obviously. the Chair cannot select a
a class of certain Government employ- narrow reading of one part of the bill.
ees, so in this bill we have defined cer- as the gentleman from Texas has just
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H 9584
CONGRESSIONAL RECORD - HOUSE November 4, 1987
done, but must consider the bill as a
whole.
In doing so, we find that both the
thrust of the bill, as well as the report
accompanying the bill explaining the
bill, clearly define the range and scope
of coverage to the private sector.
In the case of exemptions as put
forth on page 14 of the report, section
6 exempts all governmental employers,
whether Federal, State, local or a po-
litical subdivision.
This section consistent with this ex-
emption also provides a rule of con-
struction with respect to private-sector
employers doing counterintelligence or
intelligence work with the CIA, DOD.
DOE atomic energy defense activities,
FBI and NSA.
Clearly, the committee was trying to
stay within the limits of its jurisdic-
tion by attempting to legislate for the
private sector employer/employee,
and trying to stay within the limita-
tions imposed by prior legislation by
the Congress in which it had legislated
with respect to the Defense Depart-
ment, intelligence community and the
like, so therefore, the Chair is pre-
pared to rule that in light of the fact
that intentionally, or unintentionally,
the amendment of the gentleman
from Texas (Mr. BARTLEI r1 would in
effect do by indirection what cannot
be done by direction, and therefore, is
not in keeping with Jefferson's
Manual and the citations following
the germaneness rules, as well as
Deschler's procedure, chapter 28, sec-
tion 709 which clearly prohibits broad-
ening of exemptions in cases such as
this. Therefore, the Chair is compelled
to sustain the point of order raised by
the gentleman from New York.
Mr. WALKER. Mr. Chairman, I ask
unanimous consent that the amend-
ment of the gentleman from Texas be
made in order.
Mr. ACKERMAN. Mr. Chairman, I
object.
Mr. WALKER. Could the Chair
state who made the objection?
Mr. ACKERMAN. Mr. Chairman. on
the basis that the decision was left at
the discretion of the Chair, and I
would not allow anything that I can
do while I am on my feet to impinge
upon the discretion of the Chair as
has been granted to the Chair, I will
object.
The CHAIRMAN. Objection is heard
to the unanimous consent request.
Are there other amendments to sec-
tion 6?
AMENDMENT OFFERED BY MRS. VUCANOVICB
Mrs. VUCANOVICH. Mr. Chairman,
I offer an amendment.
The Clerk read as follows:
Amendment offered by Mrs. VucANovtca:
Page 8. after line 13, add the following new
subsection:
(d) EXEMPTION FOR FIANANCIAL INsTIro-
TIONs.-(1) Subject to paragraph (3), this
Act shall not prohibit the use of a lie detec-
tor test or employees or prospective employ-
ees of a financial institution (as such term
is defined In section 5312(a)(2) of title 31,
United States Code, and as further defined
in section 103.11(g) of title 31 of the Code of
Federal Regulations as in effect on the date
of the enactment of this Act).
(2) The exemption provided under para-
graph (1) shall not diminish an employer's
obligation to comply with-
'A) applicable State and local law, and
(B) any negotiated collective bargaining
agreement, which limit or prohibit the use
of lie detector tests on such employees.
k3) The exemption provided under this
subsection shall not apply if the results of
an analysis of lie detector charts are used as
the sole basis upon which an employee or
prospective employee is discharged, dis-
missed, disciplined in any manner, or denied
employment or promotion. Nothing in this
paragraph shall be construed to prohibit
the temporary reassignment of any employ-
ee for such period as is necessary for a
speedy and thorough investigation concern-
ing potential criminal activity with involves
the operations of the employer.
Mrs. VUCANNOVICH (during the
reading). Mr. Chairman, I ask unani-
mous consent that the amendment be
considered as read and printed in the
RECORD. -
The CHAIRMAN. Is there objection
to the request of the gentlewoman
from Nevada?
There was no objection.
Mr. MARTINEZ. Mr. Chairman, I
ask unanimous consent to limit the
debate on this amendment to 10 min-
utes, 5 minutes on each side.
The CHAIRMAN. Is there objection
to the request of the gentleman from
California?
Mr. DELAY. Mr. Chairman, I object.
The CHAIRMAN. Objection is
heard.
The gentlewoman from Nevada
(Mrs. VUCANOVICH] is recognized for 5
minutes.
Mrs. VUCANOVICH. Mr. Chairman.
my amendment is simple-to exempt
financial institutions from restrictions
against the use of polygraphs, with
"financial institution" being defined as
under title 31 of the United States
Code, section 5312(a), subject to cur-
rency transaction regulations as fur-
ther defined under 31 Code of Federal
Regulations, part 103.
As we all know, the reporting re-
quirements for these financial institu-
tions are very strict, and failure to
comply or errors in reporting subject
the institution to severe civil and
criminal penalties. For this reason, it
is critical that these financial institu-
tions be exempt from the ban against
polygraphs. Without the use of the
polygraph, they are at tremendous
risk. It is essential that employees who
handle large sums of money make the
transaction properly. There is a terrif-
ic burden on financial institutions, and
their accountability is vital.
One of the purposes of the strict
currency reporting regulations for fi-
nancial institutions is to help track
down drug traffickers. In the last con-
gress we reinforced this goal when we
passed the Omnibus Drug Enforce-
ment Act of 1986, which strengthened
the currency reporting provisions.
Financial institutions handle enor-
mous sums of money every day, and
many people have access to these
funds. Embezzlement and internal
fraud cause billions of dollars in losses
each year. In fact, the losses amount
to more than losses from robberies,
burglaries, and larcenies combined.
Use of. the polygraph as an investiga-
tive tool is absolutely essential to
these entities.
This amendment is critical to con-
stit ients in each and every one of our
districts. Do you have loan or finance
companies in your district? Is there a
Western Union office there? A jewel-
er? The polygraph can make the dif-
ference in whether or not they stay in
business.
The toll extracted due to internal
theft in these businesses is great.
These losses cause many businesses to
close their doors, resulting in unem-
ployment for many workers. The
losses are also reflected in higher costs
for consumers, as employers raise
pri('s on goods and services to recoup
the r losses.
U-.questionably, there are places and
occasions where polygraph testing is
vital. This body officially acknowl-
edged its legitimacy in the last Con-
gress and again more recently when
we overwhelmingly endorsed the use
of polygraph testing for national secu-
rity -)urposes.
W cannot acknowledge the useful-
ness -the essential role of polygraph
testing as a legitimate and effective
tool for the Government to use, and
yet deny its credibility and efficacy for
the private sector. Obviously, the poly-
graph test has a proper place in both
Government and private business.
^ 1920
Mr. WILLIAMS. Mr. Chairman, I
rise in opposition to the amendment.
Mr. Chairman, this is a rewrite of an
amendment that just a couple hours
ago the House rejected by a vote of
184 to 237, only this time the exemp-
tion is even wider than the exemption
that the House has already rejected.
The gentlewoman's amendment
refers to financial institutions as de-
fined in section 5312(a)(2) of title 31 of
the United States Codes. Let me share
with the House the definition of finan-
cial institutions under that section:
All insured banks, all commercial banks.
all trust companies, all private banks, all
thrift institutions, all brokers or dealers in
securities, all operators of credit card sys-
tems, all insurance companies, all pawn bro-
kers, all loan companies, all travel agencies,
all telegraph companies.
Those are the definitions of a finan-
cial institution.
The gentlewoman also refers to a
certain regulation of law which in-
cludes all casinos or gambling casinos.
This amendment would include every
person in the United States literally
who works in a financial institution,
including pawn brokers, Insurance
companies, and people that make
credit cards.
This is an extremely broad amend-
ment and one which myself and the
committee wholeheartedly oppose.
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November 4, 1987 CONGRESSIONAL RECORD - HOUSE
Mr. ST GERMAIN. Mr. Chairman, I
move to strike the last word. I rise in
opposition to the amendment.
Mr. Chairman, this amendment
when compared to the amendment
that was previously defeated that had
reference to federally insured finan-
cial institutions, that was bad enough,
but my God, here we are going to
impose this upon branches of foreign
banks. They are not federally insured.
I mean, I cannot believe the scope of
this amendment. Very frankly, in
keeping with the consideration of the
gentleman from Texas [Mr. BARTLETr]
earlier when he recognized the hour, I
would say this amendment is one
whose hour has not arrived and it
should be summarily dismissed, as was
done with the previous amendment re-
ferring to financial institutions.
Mr. Chairman, I would call for a
"no" vote on this amendment.
The CHAIRMAN. The question is on
the amendment offered by the gentle-
woman from Nevada [Mrs. VUCANO-
VICH).
The amendment was rejected.
AMENDMENT OFFERED BY MR. DELAY
Mr. DELAY. Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. DELAY: Page
8, after line 13, insert the following new sub-
sections:
(d) EXEMPTION FOR SERVICES CONDUCTED IN
PERSONAL RESIDENCES.-This Act shall not
prohibit the use of a lie detector test by an
employer whose business consists of provid-
ing services in private residences and whose
employees obtain access to such residences,
to the extent that-
(1) such use is consistent with-
(E applicable State and local law, and
(I any negotiated collective bargaining
agr( mment,
that explicitly or implicitly limits or prohib-
its the use of lie detector tests by such em-
ployer;
(2) the test is administered only to em-
ployees who have, or prospective employees
who would have, reasonable access to the
private residence of any customer of the em-
ploc z r; and
(3 the results of an analysis of lie detec-
tor c -tarts are not used as the sole basis
upon which any employee or prospective
employee is discharged, dismissed, disci-
plined in any manner, or denied employ-
ment or promotion.
Mr. DELAY (during the reading). Mr.
Chairman, I ask unanimous consent
that the amendment be considered as
read and printed in the RECORD.
The CHAIRMAN. Is there objection
to the request of the gentleman from
Texas?
There was no objection.
[Mr. DELAY addressed the Commit-
tee. His remarks will appear hereafter
in th,! Extensions of Remarks.]
The CHAIRMAN. The time of the
gentleman from Texas has expired.
The question is on the amendment
offered by the gentleman from Texas
[Mr. DELAY).
The question was taken; and the
Chairman announced that the noes
appeared to have it.
RECORDED VOTE
Mr. DELAY. Mr. Chairman, I
demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic
device, and there were-ayes 147, noes
268, not voting 18, as follows:
[Roll No. 4121
AYES-147
Archer
Hansen
Pickett
Armey
Hastert
Porter
Badham
Hatcher
Quillen
Baker
Hefley
Ravenel
Ballenger
Herger
Ray
Bartlett
Hiler
Rhodes
Barton
Holloway
Roberts
Bateman
Hopkins
Rogers
Bennett
Hubbard
Roth
Bereuter
Hunter
Rowland (GA)
Bilirakis
Hutto
Saiki
Bliley
Hyde
Saxton
Boulter
Inhofe
Schaefer
Broomfield
Ireland
Schuette
Bryant
Kasich
Schulze
Bunning
Konnyu
Sensenbrenner
Burton
Kyl
Sham
Byron
Lagomarsino
Shumway
Callahan
Latta
Shuster
Chandler
Leath (TX)
Skeen
Chappell
Lewis (FL)
Slaughter (VA)
Cheney
Lightfoot
Smith (NE)
Coats
Livingston
Smith (TX)
Coble
Lott
Smith. Denny
Combest
Lowery (CA)
(OR)
Craig
Lujan
Smith. Robert
Dannemeyer
Lukens. Donald
(NH)
Darden
Lungren
Smith. Robert
Daub
Mack
(OR)
de la Garza
Madigan
Solomon
DeLay
Marlenee
Spence
DeWine
Martin (IL)
Stangeland
Dickinson
Martin (NY)
Stenholm
DioGuardi
McCandless
Stump
Doman (CA)
McCollum
Sundquist
Dreier
McEwen
Sweeney
Edwards (OK)
McMillan (NC)
Swindall
Emerson
Meyers
Tauzin
Pawell
Mica
Taylor
Fields
Michel
Thomas (CA)
Frenzel
Miller (OH)
Thomas (GA)
Gallegly
Montgomery
Valentine
Gekas
Morrison (WA)
Vander Jagt
Gingrich
Myers
Vucanovich
Goodling
Nelson
Walker
Gradison
Nichols
Weldor,
Grant
Oxley
Whittaker
Hall (OH)
Packard
Wolf
Hall (TX)
Parris
Wylie
Hammerschmidt Pashayan
Young (FL)
NOES-268
Ackerman
Carper
Edwards (CA)
Akaka
Carr
English
Alexander
Chapman
Erdreich
Anderson
Clarke
Espy
Andrews
Clay
Evans
Annunzio
Clinger
Fascell
Anthony
Coelho
Fazio
Applegate
Coleman (MO)
Feighan
Aspin
Coleman (TX)
Fish
Atkins
Collins
Flake
AuCoin
Conte
Flippo
Barnard
Conyers
Florio
Bates
Cooper
Foglietta
Beilenson
Coughlin
Foley
Bentley
Courter
Ford (MI,
Berman
Coyne
Ford (TN)
Bevis
Crockett
Frank
Bilbray
Davis (IL)
Frost
Bochlert
Davis (MI
Gallo
Boggs
DeFazio
Garcia
Boland
Dellums
Gaydos
Bonior
Derrick
Gejdenson
Booker
Dicks
Gilman
Borski
Dingell
Glickman
Bosco
Dixon
Gonzalez
Boucher
Donnelly
Gordon
Boxer
Dorgan (ND)
Grandy
Brennan
Dowdy
Gray (IL)
Brooks
Downey
Gray(PA)
Brown (CA,
Durbin
Green
Bruce
Dwyer
Gregg
Buechner
Dymally
Guarini
Bustamante
Dyson
Gunderson
Campbell
Early
Hamilton
Cardin
Eckart
Harris
H 9585
Hawkins
Mtume
Sawyer
Hayes (IL)
Miller (CA)
Scheuer
Hayes (LA)
Miller (WA)
Schneider
Hefner
Mineta
Schroeder
Henry
Moakley
Schumer
Hertel
Molinari
Shays
Hochbrueckner
Mollohan
Slkorskl
Horton
Moody
Sisisky
Houghton
Moorhead
Skaggs
Hover
Morelia
Skelton
Hiwkaby
Morrison (CT)
Slattery
Hughes
Mrazek
Slaughter (NY)
Jambs
Murphy
Smith (FL)
Jeffords
Murtha
Smith (IA)
Jerkins
Nagle
Smith (NJ)
Johnson (CT)
Natcher
Snout,
Jonnaon (SD)
Neal
Solari
Jones(TN)
Nielson
Sprats
Jontz
Nowak
St Germain
Kanjorski
Oakar
Staggers
Kastenmeier
Oberstar
Stallings
Kennedy
Obey
Stark
Kennelly
Olin
Stokes
Ktldee
Ortiz
Stratton
Kleczka
Owens (NY)
Studds
Kolbe
Panetta
Swift
Hotter
Patterson
Synar
Kostmayer
Pease
Talton
LaFalce
Pelosi
Tauke
Lancaster
Penny
Torres
Lantos
Pepper
Torricelli
Leach (IA)
Perkins
Towns
Lehman (CA)
Petri
Traficant
Lehman (FL)
Pickle
Traxler
Leland
Price (IL)
Upton
Lent
Price 'NC)
Visclosky
Levu) (MI)
Pursell
Volkmer
Levine (CA)
Rahall
Walgren
Lewis (GA)
Rangel
Watkins
Lloyd
Regula
Waxman
Lowry (WA)
Richardson
Weber
Luaen? Thomas
Ridge
Weiss
MacKay
Rinaldo
Wheat
Manton
Ritter
Whitten
Markey.
Robinson
Williams
Martinez
Rodino
Wilson
Matsui
Roe
Wise
Mavroules
Rose
Wolpe
Maaoli
Rostenkowski
Wortley
McCloskey
R.oukema
Wyden
McCurdy
Rowland (CT)
Yates
McDade
Roybal
Yatron
McGrath
Russo
Young (AK)
McHugh
Sabo
McMillen (MD)
Savage
NOT VOTING-18
Biaggi
Gibbons
Lipinski
Brown (CO)
Howard
Owens (UT)
Crane
Jones (NC)
Roemer
Daniel
Kaptur
Sharp
Duncan
Kemp
Udall
Gephardt
Lewis (CA)
Vento
0 1945
Mr. PORTER changed his vote from
"no" to "aye."
So the amendment was rejected.
The result of the vote was an-
nounced as above recorded.
Mr. MARTINEZ. Mr. Chairman, I
move to strike the last word.
Mr. Chairman, I yield to the gentle-
man from Texas [Mr. BARTLE T] for
the purposes of entering into a collo-
quy with the gentleman from Mon-
tana [Mr. WILLIAMS].
Mr. Chairman, the gentleman from
Montana [Mr. WILLIAMS] has seen a
copy of the colloquy. What I would do
is just read an abbreviated version of
the questions and answers, Mr. Chair-
man, and enter the entire colloquy
into the RECORD at the conclusion of
that abbreviated version.
The CHAIRMAN. The Chair must
advise our distinguished colleague
from Texas [Mr. BARTLETT] that collo-
quies may not be entered in the
RECORD according to the rules during
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H 9586 CONGRESSIONAL RECORD - HOUSE November 4, 1987
deliberations in the Committee of the The CHAIRMAN. Are there any " (b) Subject to -subsection (c). no poly-
Whole. amendments to section 7? graph e~tamtnat;on shall be conducted by an
ndr:idual unless the indiv)duai-
iVir. SAFiTI.ETT. Mr. Chairman. I If not, the Clerk will designate sec i(1) is at least twenty one years of age;
would inquire of the gentleman from Lion S. (2) is a citizen of the United States;
Montana and would like to ask him a The text of section 8 is as follows: .,,s) is a person of good moral character.
few questions concerning the meaning .F;c-,k EVFE(TnvE DATE "+4) has complied with all required laws,
of the term lie detector as used in the This Act shall take effect 6 months after rules, and regulations established by the
bill in order to clarify what is and the date of its enactment, Secretary and other polygraph licensing the state in
what is not included in the definition. AMENDMENT IN THE NATURE OF A SUBSTITUTE and regula pry authoritiest inbe conducted;
I ask the gentleman it the definition OFFERED BY MR. YOUNG OF FLORIDA
of lie detector as contained in the bill Mr. YOUNG of Florida. Mr. Chair- and
before as would in any way be inter- man. I offer an amendment in the -t5)(A) has successfully completed a
formal training course regarding the use of
preted to include drug tests within its nature of a substitute. polygraphs that has been approved under
scope? The Clerk read as follows: (4) above or by the Secretary; and
Mr. WILLIAMS. Mr. Chairman. will Amendment in the nature of a substitute ^(B) has completed a polygraph examiner
the gentleman yield? offered by Mr. YOUNG of Florida: Strike all internship of at least six months duration
Mr. MARTINEZ. I yield to the gen- after the enacting clause and insert the fol- under the direct supervision of a polygraph
lowing: examiner who has met the requirements of
tleman from Montana.
Mr. WILLIAMS. Mr. Chairman. I SHORT Tins this section.
The Secretary shall establish stand-
answer my friend from Texas by SO1F 1. This Act may be cited as the
"Polygraph Reform Act of 1987". ards governing ind victuals who, on the date
saying that if his understanding is of enactment of the Polygraph Reform Act
POLYGRAPH C7tASLIFATIONS of 1987, are qualified to conduct polygraph
that the modified definitits on of which lie de- are SEC. 2. The Fair Labor Standards Act of
Lector does not include tests in accordance with applicable
1938 (29 U.S.C. et seq.) is amended- State law. Such standards shall not be satis-
administered to detect the presence or (1) by inserting above the heading of Sec- tied merely because an individual has con-
absence of a drug In a person's body, tion 2 the following. ducted a specific number of polygraph ex-
the gentleman is correct. As the gen- ,'TITLE I-FAIR LABOR STANDARDS". aminations in the past.
tleman knows, the original definition (2) by striking out "this Act" each place it .'(d)(1) When conducting a polv,fraph ex-
of lie detector Was never intended to appears (other than in the first section) and amination, a polygraph examiner may not
include drug testing. Nevertheless, I inserting in lieu thereof "'this title": and ask a question during the actual examina-
did not object to the amendment (3) by adding at the end thereof the fol- Lion unless such a question is in writing and
added in committee which further lowing new title: has been reviewed with the examinee prior
clarified that drug tests were not in- ',TITLE II-POLYGRAPH to such examination.
cluded within the scope of the mean- EXAMINATIONS "(2) A polygraph examiner may not in-
ing of the term lie detector. "LIMITATIONS ON THE USE OF POLYGRAPH quire re intoreitgious beliefs or atfiliattons.
I am not expressing an opinion on EXAMINATIONS "(B) racial beliefs or op coons;
whether or not I am for drug testing. "SEC. 201. (a) Unless the examination is ??fC) political beliefs or affiliations:
but that is not the purpose of this leg- given in accordance with section 202. no em- - (D) sexual preferences or activities.
islatiom ployer or any other person engaged in or af unless such information regarding sexual
Mr. BARTLETT. I thank the gentle- fecting commerce, nor any agent or repre- preferences or activities is required by State
sentative thereof may- law, or is directly job-related: or
man. "(I) directly or indirectly require, request, ??(E) beliefs, affiliations, or opinions re-
The
definition still electrical includes devices." Be- BeterSuggest* permit or cause any employee, garding unions or labor organizations.
"mechanical or agent. prospective employee, or prospective -(es 1) Each prospective examinee shall be
cause of that, some have argued that agent to take or submit to any polygraph required to sign a notice before the begin-
it could be broad enough to include examination for any purpose; or ning of each polygraph examination that
routine preemployment or employ- "(2) use. accept, or refer to the results of the examinee understands-
mm physical examinations. thus pro- any polygraph examination of any employ- "(A) the limitations imposed on polygraph
hibiting most employers from adminis- ee, agent, prospective employee, or prosper- examiners in subsection (d):
tering such examinations. Does the tive agent for any purpose. "(B) that the examinee may terminate the
-(b) No employer may discharge, dismiss, examination at any time: and
definition include employment and discipline, or deny employment or promo- ??(C) that the examinee has legal rights
preemployment physical examnna- tion to; or threaten to discharge, dismiss, and remedies if the polygraph examination
Lions? discipline, or deny employment or promo- is not conducte& or the results of the ex-
Mr. WILUAMS. The answer is no. tion to any employee. agent; prospective em- aminations are not used, in accordance with
Mr. BARTLETT. I thank the gentle- ployee. or prospective agent who refuses, de- this title.
man for the colloquy. clines, or fails to take or submit to any poly- ??(2) Each examinee shall be provided with
The CHAIRMAN. Are there further graph examination. a written copy of any opinion or conclusion
amendments to section 6? "(c) No employer may discharge, dismiss, rendered as a result of the examination
If not, the Clerk will designate sec- discipline, or deny employment or promo- upon written request by the examinee and
tion to; or threaten to discharge, dismiss, upon payment of a reasonable fee by such
tion 7. discipline. or deny employment of promo- examinee.
The text of section 7 is as follows: Lion to. an employee or applicant based "(f) A polygraph examiner may not, in
wlc 7. vrttfle.ITmxS, solely on the opinion or conclusions of a any calendar day, conduct and complete
As used in this Act- polygraph examiner reached by analysis of more than ten polygraph examinations
(l) the term "lie detector test" includes the results of a polygraph examination of which are subject to the requirements of
the employee or applicant for employment this title. A polygraph examination subject
any examination involving the use of any given in accordance with section 202. If a to the limitation of this subsection shall
polygraph, decep l sues. voice stress alga- polygraph examiner concludes, based on an consist of a full and complete pretest Inter-
ot er. s mi ar device strews e r mechanical any analysis of the results of a polygraph exami- view. recording of physiological chart data,
ether c imila (whdthe or nation given in accordance with section 202, analysis of recorded chart data, and post-
ial) which is used, or tire results of that an employee or applicant for employ- test interview as required. The examiner
which are aced. for the purpose of render- ment was deceptive, the employee or appli- shall schedule not less than one hour to
ing a diagnostic opinion regarding the hon- cant for employment must be provided an conduct an examination of an examinee as
esty of an individual; opportunity to rebut such conclusion. defined this subsection
(2) the term "employer" Includes an "MINIMUM STANDARDS FOR CONDUCTING -(g)(1) Each polygraph examiner shall-
any other independent person n acting o contractor, yy or lemployee. or POLYGRAPH EXAMINATIONS "(A) use an instrument that records con-
a
ly in the interest of f an employer to relation 20?. (a) The Secretary shall estab- tinuously. visually, permanently. and simul?
ly
to an employee or prospective employee. lish standards of conduct and qualifications taneously changes in cardiovascular, respi-
and for persons who wish to conduct polygraph ratory, and electrodermal patterns as mini-
(3) the term "commerce" has the meaning examinations. The standards shall Include mum instrumentation standards: and
provided by rectilon 3(b) of the V%ir
Standards Act of (29 U.S.C. 209(b)tabor (b)ethrroouugh tkents set forty to subsections ed (B) nba decepopinion l p Innd~:
I9= or D
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November 4, 1987 CONGRESSIONAL RECORD - HOUSE
tion of changes in physiological activity or
reactivity in the cardiovascular. respiratory,
and electrodermal patterns on the poly-
graph charts.
"(2) A polygraph examiner may use an In-
strument that records additional physiologi-
cal patterns as specified in paragraph (1)
and may consider such additional patterns
in furnishing an opinion-
"(h) All conclusions or opinions of the
polygraph examiner arising from a poly-
graph examination shall-
"(1) be in writing and based solely upon
polygraph chart analysis;
"(2) contain nc information other than
admissions. information, case facts. and in-
terpretation of the chart data relevant to
the purpose and stated objectives of the ex-
amination: and
"(3) contain no recommendation regarding
the prospective or continued employment of
an examinee.
"(i) A g-aph examiner shall maintain
all opinion., reports, charts, questions, lists,
and all other records relating to the poly-
graph examination for a minimum of two
years after administering such examination.
"(j) Any polygraph examiner conducting a
polygraph examination shall acquire and
maintain a minimum of $50.000 bonding or
an equivalent amount of professional liabil-
ity insurance coverage.
"(k) An employer may not use voice stress
analyzers, psychological stress evaluators or
any other similar device for the purpose of
detecting deception or verifying the truth of
statements. An employer may not use or
cause to be used any such device (as de-
scribed in this subsection) with any employ-
ee or prospective employee interview, or use
or cause to be used any recording which at
any time is subjected to analysis by any
voice stress analyzer, psychological stress
evaluator, or any other similar device, the
results of which are reported to any employ-
"DISCLOSURE OF INFORMATION
"SEC. 203. (a) A person, other than an ex-
aminee, may riot disclose information ob-
tained during a polygraph examination.
except as provided in this section.
"(b) A polygraph examiner may disclose
information acquired from a polygraph ex-
amination only to-
"(1) another polygraph examiner in pri-
vate consultation, the examinee, or any
other person or firm specifically designated
in writing by the examinee:
"(2) the employer that requested the ex-
amination;
"(3) a person or governmental agency that
requested the examination or others as re-
quired by due process of law who obtained a
warrant to obtain such information in a
ccurt of competent jurisdiction; or
"(4) appropriately licensed or chartered
polygraph licensing boards or polygraph pro-
fessional associations upon written request
in connection with a complaint filed against
an examiner pursuant to a grievance proce-
dure.
"(c) An en loyer for whom a polygraph
examination is conducted may disclose in-
formation from the examination only to a
person described in subsection (b).
"WAIVER OF RIGHTS PROHIETTED
"SEC. 2(14. The rights and procedures pro-
vided pursuant to this title may not be
waived by contract or otherwise. No poly-
graph examiner may request an examinee
to waive any such right or procedure
ADMINISTRATION
"SEc. 205. The Secretary shall-
"(1) issue such rules and regulations as
may be necessary or appropriate for carry-
ing out this title; and
"(2) cooperate with regional, State, local,
and other agencies, and cooperate with and
furnish technical assistance to employers,
labor organizations, and employment agen-
cies to carry out this title.
"RECORDKEEPING, INVESTIGATIONS, AND
ENFORCEMENT
"SEC. 206. (a) The Secretary shall have
the power to make investigations and re-
quire the keeping of records necessary or
appropriate for the administration of this
title in accordance with the powers and pro-
cedures provided in sections 9 and 11.
"(b)(1) This Act shall be enforced in ac-
cordance with the powers, remedies, and
procedures provided in sections 11(b), 16
(except for subsection (a) thereof), and 17,
and subsection (c).
"(2) Any act prohibited under section 201
or 202 shall be deemed to be a prohibited
act under section 15.
"(3) Amounts owing to a person as a result
of a violation of this title shall be deemed to
be unpaid minimum wages or unpaid over-
time compensation for purposes of sections
16 and 17, except that liquidated damages
shall be payable only in cases of willful vio-
lations of this title.
"(4) In any action brought to enforce this
title, the court shall have jurisdiction to
grant such legal or equitable relief as may
be appropriate to carry out this title, includ-
ing judgments compelling employment, re-
instatement or promotion, or enforcement
of liability for amounts deemed to be unpaid
minimum wages or unpaid overtime com-
pensation under this section.
"(5) Before instituting any section under
this section, the Secretary shall attempt-
"(A) to eliminate the practice or practices
alleged: and
"(B) to effect voluntary compliance with
the requirements of this title through infor-
mal methods of conciliation, conference,
and persuasion.
"(c)(1) Subject to the limitations stated in
section 207, any person aggrieved may bring
a civil action in any court of competent ju-
risdiction for such legal or equitable relief
as will effectuate the purposes of this title,
except that the right of any person to bring
such action shall terminate on the com-
mencement of an action by the Secretary to
enforce the right of such person under this
title.
"(2) In an action brought under para-
graph (1), a person shall be entitled to a
trial by jury with respect to any issue of
fact in any such action for recovery of
amounts owing as a result of a violation of
this title, regardless of whether equitable
relief is sought by any party in such action.
"(d)(1) No civil action may be commenced
by an individual under this section until
sixty days after a charge alleging a violation
of this title has been filed with the Secre-
tary.
"(2) Such a charge shall be filed-
"(A) within one hundred and eighty days
after the alleged violation occurred; or
"(B) in a case to which section 207 ap-
plies-"(0 within three hundred days after the
alleged violation occurred: or
"(ii) within thirty days after receipt by
the individual of notice of termination of
proceedings under State law, whichever is
earlier.
"(3) On receiving such a charge, the Sec-
retary shall promptly-
"(A) notify all persons named in such
charge as prospective defendants in the
action; and
"(B) seek to eliminate any alleged viola-
tion by informal methods of conciliation,
conference, and persuasion.
H 9587
"(e)(1) Sections 6 and 10 of the Portal-to-
Portal Act of 1947 (29 US C. 255 and 259)
shall apply to actions under this title.
"(2) For the period during which the Sec-
retary is attempting to effect voluntary
compliance with requirements of this title
through informal methods of conciliation,
conference, and persuasion pursuant to sub-
section (b), the statute of limitations as pro-
vided in section 6 of such Act shall be tolled,
but in no event for a period in excess of one
year.
"EFFECT OF STATE LAW
"SEC. 207. (a) It is the express intent of
Congress that the States may regulate poly-
graph examinations in a manner that is con-
sistent with the standards set forth in this
title.
"(b)(1) Any State or political subdivision
thereof which desires to develop and en-
force standards for the use of polygraphs by
employers and polygraph examiners may
submit an administrative plan to the Secre-
tary at such time, in such manner, and con-
taining or accompanied by such information
as the Secretary may reasonably require.
Such plan shall-
"(A) identify the State agency designated
as responsible for administering the plan:
"(B) describe the standards in the admin-
istrative plan governing polygraph examin-
ers and the use of polygraph examinations
by employers;
"(C) provide assurances through a written
certification that such standards, and .the
enforcement of such standards, will be at
least as effective as the standards set out in
this Act; and
"(D) explain the manner in which the
standards in such plan will be administered
and enforced by the State agency to assure
compliance with this Act.
"(2) An administrative plan meeting the
requirements of subsection (b)(1) shall be
deemed approved by the Secretary.
"(3) The Secretary shall make a continu-
ing evaluation of each administrative plan
which has been approved. If the Secretary
finds that a plan is not being administered
in a manner that assures substantial compli-
ance with the standards of this Act, the Sec-
retary shall notify the State or political sub-
division thereof which submitted such plan
that approval of such plan is being with-
drawn and, upon receipt of such notice,
such plan shall cease to be in effect.
"(4) Review of a decision of the Secretary
to withdraw approval of an administrative
plan under this section may be obtained in
the United States court of appeals for the
circuit in which the State or political subdi-
vision thereof is located by filing a petition
for review with such court within thirty
days after receipt of the notice of withdraw-
al of approval.
"(5) The prohibitions contained in se^-
tions 201 and 202 of this title shall not
apply to any polygraph examiner or any
employer engaged in any business in or af-
fecting interstate commerce, or any agent or
representative of such polygraph examine-
or employer, in any State or political subdi-
vision which has adopted an administrative
plan pursuant to subsection (b).
"(c) Nothing in this title shall be con-
strued to require regulation by a State or to
prohibit a State from establishing a stand-
ard that prohibits an employer from-
"(1) taking any action against an employ-
ee or a prospective employee based on tee
results of a polygraph examination: or
"(2) making an employee or prospective
employee submit to a polygraph examina-
tion against his or her will.
"(d)(1) Subject to paragraph (2), in the
case of an alleged violation of this title oc-
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H 9588
CONGRESSIONAL RECORD - HOUSE Voccember 4, /987
curring in a State that has an approved ad-
ministrative plan regulating polygraph 1,x-
aminations in a manner that is at least as
stringent as the requirements of this title.
or that has a standard referred to in sub-
paragraph (c,2). no suit may be brought
!under section 208 sooner than sixty days
alter proceedings have been commenced
under the State law or standard, unless such
proceedings have been earlier terminated
"(2) Such sixty-day period shall be ex-
tended to one hundred twenty days during
the first year after the effective date of
such State law or standard.
"(3) For purposes of this subsection, a
State proceeding shall be deemed to have
commenced at the time it is deemed to have
commenced under State law.
"(e) Nothing in this title shall be con-
strued to apply the provisions of this title to
the United States Government, to any
gency or agent of the United States Gov-
ernment, to any State governmental agency
or agent of any State governmental agency,
or to any law enforcement agency or agent
of any law enforcement agency.
DaZINZTIONS
208. As used in this tttle-
"(1) the term 'corrtmerce' has the meaning
provided by section 3(br
"(2) the term 'employer' includes any
person acting directly or Indirectly in the in-
terest of an employer in relation to an em-
ployee or prospective employee.
"(3) the term' Secretary' means theSecre-
tary of Labor,
"(4) the term 'State' inane each of the
several States, the District of Columbia. the
Commonwealth of Puerto Rico. and any po-
litical subdivision thereof;
-(S) the term 'polygraph examination'
means any interview or examination of any
employee or prospective employee of an em-
pioyer-
-(A) involving the use of any polygraph.
deceptograph. or any other similar device
not otherwise prohibited by this Act which
is used primarily for the purpose of detect-
ing deception, verifying the truth of state-
ments, or any similar purpose: or
"t B) which is subject to at any time to
analysis by any polygraph. deceptograph
(GBel), or any other similar device the re-
suits of which are ever reported to any em-
ployer, and
"(6) the term 'polygraph examiner' means
any person who conducts a polygraph exam-
ination as defined in paragraph (5) of this
section.".
sYTe TI V! DATL
Sec. 3. (a) Except as provided in subsec-
tion (bi, this Act and the amendments made
by this Act shall become effective six
months after the termination of the first
legislative session of each State that occurs
after the date of enactment of this Act.
(by The Secretary of Labor shall issue
such rides and regulations as may be neces-
sary or appropriate for carrying out title II
of the Fair labor Standards Act of 1938 as
added by section 2 of this Act) not later
than one hundred and eighty days after the
date of enactment of this Act.
Mr. YOUNG of Florida (during the
reading). Mr. Chairman, I ask unani-
mous consent that the amendment in
tae nature of a substitute be consid-
ered as read and printed in the
RFcoaa.
The CHAIRMAN. Is there objection
to the request of the gentleman from
Florida?
There was no objection.
Mr. YOUNG of Florida. Mr. Chair-
man. this is a very serious substitute.
Last year it received a very large vote
in this House of Representatives. It is
presented to our colleagues today on
behalf of myself and the gentleman
from Georgia [Mr. DARDEN].
In an effort to save time, I asked
that we not read the full amendment
because it is lengthy. I might also tell
our colleagues, Mr. Chairman, that
the gentleman from Georgia [Mr.
DnaFrrl, and I had 11 other amend-
ments at the desk, but in an attempt
to accommodate the Members and to
keep the proceedings from going on
too late this evening, we have agreed
not to offer those amendments. But
we would like a serious discussion of
this very important substitute before
us today at this point.
The bill before us now, Mr. Chair-
man, allows the use of polygraph by
the Federal Government. State gov-
ernments. local government, political
subdivisions of those local govern-
ments, contractors to the FBI, those
who are involved In the security guard
business, those who are involved in the
drug business. It prohibits the use of
polygraph for those who work in nurs-
ing homes or financial institutions. or
those who are involved in a business
where some specific incident has taken
place, or in the delivery of home
health care or the delivery of other
home type services.
So on one hand this bill said it is OK
to use the polygraph; on the other
hand it says no. you cannot use the
polygraph.
0 2000
Now there is something just a little
inconsistent about that argument. But
during most of this debate today, Mr.
Chairman, it has been suggested that
using the polygraph harassed people,
that it was used by quacks or that it
was a gadget that did not work and
the list of allegations and accusations
go on and on.
Well. Mr. Chairman, the substitute
that we present here this evening
solves every problem that was men-
tioned by every Member today in that
debate. dust for example, there is
nothing in the bill before us that pro-
tects the right of the employer or the
employee or the prospective employee
from being fixed, dismissed or disci-
plined because he did not take a lie de-
tector test or a polygraph test if you
will.
Our substitute says that no employ-
er may discharge, dismiss, discipline or
deny employment or promotion to or
threaten to discharge, dismiss, disci-
pline or deny employment or promo-
tion to any employee, agent. prospec-
tive employee or prospective agent
who refuses, declines, or fails to take
or submit to any polygraph examina-
tion.
Mr. Chairman, this protection is not.
in the bill B.R. 1212. Further it says
no employer may discharge, discipline,
distnui . and so forth. or deny employ-
ment based solely on the opinions or
conclusions of a polygraph examiner.
Further, Mr. Chairman, this
Darden-Young substitute says no em-
ployer may dismiss, discipline, and so
forth, any employee because of the
opinions or conclusions of a polygraph
examiner.
Mr. Chairman, there is no such pro-
tection in H.R. 1212.
Mr. Chairman, this substitute pro-
vides that an employee who feels that
he has been abused by the polygraph
examination is given an opportunity to
rebut any conclusion made by anyone
in conjunction with that polygraph ex-
amination. There is no such protection
in the bill H.R. 1212.
Mr. Chairman, it has been said so
many times that this is a machine, it is
a gadget. We concede that it is me-
chanical. The polygraph ex.inination
is only going to be as good as the ex-
aminer who gives it. In our bill we pro-
vide that the examiner, amongst other
things, must comply with all laws,
Federal, State or local; must be li-
censed. must have completed a formal
training course regarding the use of
polygraphs which has been approved
by the Secretary; must have complet-
ed a polygraph examiner internship
for at least 6 months. It goes on, list-
ing the qualifications of the examiner.
No such protection in the Williams
bill. H.R. 1212.
Under that bill all of those people
that I mention, those millions of
Americans who could be polygraphed
under H.R. 1212, could have it done to
them in a slipshod, or quickie fashion,
under their bill the polygraph exam
could be done without any kind of a
professional atmosphere and without
any legal protection for the person
being examined.
The Darden-Young substitute pro-
vides those protections. Listen to this:
We include a bill of rights for the ex-
aminee and it Includes such things as
the polygraph examiner may not in-
quire into religious beliefs or affili-
ations. racial beliefs, and so forth.
The CHAIRMAN. The time of the
gentleman from Florida [Mr. YousGl
has expired.
(By unanimous consent, Mr. YOUNG
of Florida was allowed to proceed for 3
additional minutes.)
Mr. YOUNG of Florida. Let me
repeat, a polygraph examiner may not
inquire into racial beliefs or opinions,
political beliefs or affiliations, sexual
preferences or activities, beliefs, affili-
ations, or opinions regarding unions or
labor organizations. Each prospective
examinee shall be required to sign a
notice before the beginning of each
polygraph examination that he under-
stands the limitations imposed upon
the examiner; he understands his
rights as an examinee: he understands
that he may terminate the polygraph
examination at any time and that he
has legal rights under this substitute,
if the polygraph examination is not
conducted in accordance with this
title.
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November 4, 1987 CONGRESSIONAL RECORD - HOUSE
We provide that the polygraph ex-
aminer must schedule at least an hour
to conduct the examination. We pro-
vide that the questions to the examin-
ee must be in writing and must be dis-
cussed with the examinee prior to the
time that the polygraph actually takes
place.
We make every one of these protec-
tions and more, and none of these pro-
tections, not the first one of these pro-
tections that I think you would all
want in the case of any polygraph, not
one of them is included in the main
bill, H.R. 1212 as presented to this
House.
There will be many polygraph
exams under this bill because the ex-
emptions are there, and I listed the
many exemptions. It will apply to mil-
lions of Americans. The exemptions
are there.
There will be polygraph exams in
America whether this bill passes or
not or whether this bill is amended or
not.
So if you are going polygraph, why
not do it right; let us do it with exam-
iners who know what they are doing,
who have been trained, who have been
educated and who meet certain crite-
ria under the law.
Second, Mr. Chairman, and more im-
portantly let us write into the law pro-
tection for the examinee. He is going
to be examined under the Williams
bill. So why not make sure that he has
a bill of rights, the protection provided
by the Darden-Young substitute. That
is what we are asking. There is going
to be polygraph examinations in
America., no matter what we do on this
bill; pass it or do not pass it, you are
going 'o polygraph. Let us make sure
it is one right. Let us protect the
people who are having the polygraph
done t) them.
Mr. LAGOMARSINO. Mr. Chair-
man, will the gentleman yield?
Mr. YOUNG of Florida. I yield to
the gentleman from California [Mr.
LAGOINI.utsINNO].
(Mr. LAGOMARSINO asked and
was gi ?en permission to revise and
extend his remarks.)
Mr. .,AGOMARSINO. I thank the
gentleman for yielding.
Mr. Chairman, I commend the gen-
tleman for his statement, I join in
strong support of the substitute. I
think it is a practical answer, a practi-
cal solution to this problem.
1r. Chairman, I rise in support of the
Young-Darden substitute amendment to H.R.
1212. This amendment is identical to legisla-
tion I have cosponsored, H.R. 1536, the Poly-
graph Reform Act.
While I recognize the potential for abuse
and actL 9I abuse of the polygraph test and
the nee- to establish standards for its use, I
do not believe that a total ban is the solution.
In fact, as we have seen from the language of
the bill and the string of amendment attempt-
ing to exempt various industries, a total ban is
not even possible. We are inevitably faced
with the question of where to draw the line.
Do we want to make use of the polygraph to
protect our money and not our children? Or
avow Its use by companies authorized to man-
ufacture and distrbute controlled substarwes
while not permitting it to be utilized in protect-
ing nursing home residents from abuse?
The substitute would allow business and in-
dustry to continue making use of the poly-
graph to protect their customers and assets.
while protecting those who are asked to take
poygraph exams to make sure that the tests
are administered fairy and accurately. I be-
lieve It is the proper approach and urge my
colleagues to support the substitute.
Mr. YOUNG of Florida. I thank the
gentleman for his contribution and
support and I yield back the balance
of my time.
Mr. MARTINEZ. Mr. Chairman. I
move to strike the last word and rise
in opposition to the amendment.
Mr. Chairman, the hour is late, the
debate is becoming redundant. I would
simply like to say that it scares me
when the gentleman from Florida says
we are going to have polygraphing
whether we like it or not and we might
as well do it right. It has not been
proven yet that It can be done right.
I would simply say this is the substi-
tute, the same substitute pretty much
as offered in 1986. We voted It down
then, we should vote it down now and
vote for the bill as presented with the
amendments accepted by the commit-
tee.
Mr. Chairman, I urge my colleagues
to resist the substitute amendment.
Mr. DARDEN. Mr. Chairman, I
move to strike the requisite number of
words.
(Mr. DARDEN asked and was given
permission to revise and extend his re-
marks.)
Mr. DARDEN. Mr. Chairman, first
of all I want to thank you for the fair
manner in which you have presided
over the Committee of the Whole
today and to my colleagues for the
kind attention and consideration that
they have given our substitute as well
as the entire debate that we have
heard.
What Mr. Young from Florida and I
have done, quite frankly, we have
taken a different approach than has
been taken by the committee. We
think that we have built a better
mousetrap. We think that we have a
solution here to the problem of poly-
graph abuse. We content, as well as
the committee, that there have been
abuses of the polygraph in the past.
Certainly there have. But you do not
correct the abuses or eliminate the
abuses by eliminating the system
itself. So what we have done, Mr.
Chairman, is to provide and devise a
way to regulate the polygraph and to
eliminate the abuses of which the
committee complaints.
Mr. Chairman, what we have done is
we have provided regulations in two
particular areas: First of all we have
provided that the scope of the exami-
nation will be limited. It will be limited
solely to issues clearly relevant to the
employment that is sought or the inci-
dent that is being investigated.
H 9589
Second, no person may be required
to take a polygraph examination. But if
that person does take a polygraph ex-
amination, that examination and its
contents will be explained to that
person before it is taken numerous
times so there is no possibility for
abuse or even mispronouncement of
where the person was born, as one of
our colleagues said, would cause the
machine to go bad
Well, in addition to providing certain
inherent rights to the person taking
the examination, Mr. Chairman, we
have also provided in our bill some
very atria requirements for the exam-
iner. The examiner must meet certain
minimum Federal requirements. But
in addition to that, Mr. Chairman, we
have not, preempted State law in any
way. If your State does prohibit the
use of the polygraph In the private
sector then your State will not be af-
fected because you have the right in
your State to go beyond the minimum
Federal standards that we set forth
here today.
Let me touch on several differences
between our approach and that of the
committee bill. First of all. the com-
mittee bill constitutes a total ban
while our substitute represents
thoughtful regulation. Our substitute
recognizes the problems of huge losses
suffered each year by merchants and
manufacturers and the need for them
to have tools for screening employees
in positions of trust.
Our substitute recognizes that the
polygraph can be used to vindicate the
innocent as well as to indicate the
guilty. I think perhaps this Is some-
thing that has been overlooked and
needs to be emphasized over and over
again.
Mr. SWINDALL. Mr. Chairman, will
the gentleman yield?
Mr. DARDEN. I yield to the gentle-
man from Georgia [Mr. Swixnwtt..]
Mr. SWINDALL. I thank the gentle-
man for yielding.
Mr. Chairman, I would like to ask
the gentleman about one of his com-
ments because it concerns me greatly.
Is the gentleman sayng that in the
event an employee, unless they fall
into one of the exempted areas under
the committee bill, if an employee de-
sires to have a lie detector test to vin-
dicate himself but under the commit-
tee's bill that type of activity would be
prohibited?
Mr. DARDEN.. The gentleman is ab-
solutely correct. An innocent person
can be breaking the door down to take
a polygraph examination too, assert
his or her innocence and would be pro-
hibited under the committee bill from
proclaiming their innocence, shouting
from the rooftops.
Mr. SWINDALL. Mr. Chairman. as
the gentleman knows I used to be in
the furniture business back in Geor-
gia. On occasion I would hire convict-
ed felons because I for one think that
folks can maize mistakes but they
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CONGRESSIONAL RECORD - HOUSE November 4, 1987
ought not to be preempted from the
job market afterward.
This is a true story. One of the con-
victed felons whom I hired was work-
ing at our store at the time of the
theft loss that was obviously internal.
I came to that individual and said, "I
want you to know that a number of
your fellow employees are saying you
did it." And I said, I asked him if he
would mind submitting to a polygraph
test. And he said not only would he
not mind, he wanted to because he felt
very strongly about his character and
he also knew that if he lost that job
he would go back into the slammer be-
cause it was absolutely a condition to
his parole that he have a job.
So he went and he took the poly-
graph and it did vindicate him.
My point is that without the gentle-
man's substitute that type of opportu-
nity for individuals that would other-
wise be preempted most likely from
finding a job and having a second
chance, would really be hurt very
badly.
So I want to first of all commend the
gentleman on the substitute because I
think it does strike a balance between
some of the concerns that individuals
have with respect to rights of privacy
and the professional quality of these
examinations.
The CHAIRMAN. The time of the
gentleman from Georgia [Mr. DARDEN]
has expired.
(By unanimous consent, Mr. DARDEN
was allowed to proceed for 1 additional
minute.)
Mr. DARDEN. I yield further to the
gentleman from Georgia [Mr. SwrN-
DALLI.
Mr. SWINDALL. I thank the gentle-
man for yielding further.
Moreover, it recognizes the very im-
portant need in the marketplace to
protect workers who would desire to
vindicate their good name because of
their past circumstances in the sense
that they would be the first suspected
and they will be basically stripped of
the opportunity to show that they
were not the person that was guilty
and unquestionably suspicion would be
theirs.
Mr. DARDEN. I thank the gentle-
man for dramatizing the point for me
and demonstrating it so well.
I will say in conclusion, my col-
leagues, everywhere I go throughout
this district. I ask people what they
want me to be concerned about and
how they want to be represented.
They say "do one thing for us: Leave
us alone, get the Government off our
backs."
0 2015
Mr. Chairman, this is one more ex-
ample of this Congress and this House,
I truly believe, getting on the backs of
our constituents and private business
in general. As far as I am concerned, if
the polygraph is good enough for the
U.S. Government, for the State of
Georgia and local governments, it is
good enough for the private sector.
Mr. THOMAS of Georgia. Mr.
Chairman, I move to strike the requi-
site number of words.
Mr. Chairman, H.R. 1212 would es-
sentially outlaw the use of the poly-
graph in most American businesses-
except those few that might gain an
exemption from the ban. During the
debate on this issue, others have
talked about how the ban would hurt
businesses and consumers and about
the unfortunate double standard that
the Williams bill would create. I would
like to talk briefly about how it could
hurt American workers.
If we were to ban the polygraph,
companies would change their policies
to adapt to the ban. Instead of using
the polygraph as a screening device,
they would most likely rely more ex-
tensively on background checks, em-
ployment histories, and so forth.
Those who oppose the use of the poly-
graph, in fact, advocate these alterna-
tive methods of personnel screening.
But let's think for a moment about
the long-term consequences of this
change. Employers who could not use
the polygraph would hire workers
with long and verifiable work histo-
ries. They would increasingly look for
people with strong family ties, with
ties to their community, and give even
greater preference to those with a
proven track record.
This policy would enable most com-
panies to continue to hire competent,
reliable workers, although the screen-
ing process may be more expensive.
For many companies, a polygraph ban
would not erode their workforce. It
would be business as usual for most
firms.
But this change in hiring policies
could have serious consequences for a
major and especially vulnerable seg-
ment of the work force-those who are
trying to work themselves out of pov-
erty, and those just enterning the job
market. These are the very people
who can least tolerate another barrier
to employment.
Those who would suffer the most
from a polygraph ban would be those
who have just moved to another city
to search for opportunity, those who
have had a rocky employment histo-
ry-perhaps through no fault of their
own-and those who are having a
tough time breaking into the job
market. It seems to me that it would
be a terrible mistake for us to pass a
bill that would make it even harder
for them to get jobs.
We have a responsibility to look
down the road at the consequences of
a total ban on the polygraph. I believe
that if we pass the Williams bill, we
may be kicking many of our citizens
off the employment ladder, Just as
they are trying to work their own way
up.
For these reasons. I cannot support
H.R. 1212, and urge consideration of
the Darden-Young substitute.
Mr. LIVINGSTON. Mr. Chairman, I
move to strike the requisite number of
words, and I rise in opposition to H.R.
1212 and in support of the Young-
Darden substitute.
(Mr. LIVINGSTON asked and was
given permission to revise and extend
his remarks.)
Mr. LIVINGSTON. Mr. Chairman,
in the interest of expediency, since
time is very valuable to the Members,
I will not use all of my time. I would
simply say that I believe the Young-
Darden substitute is a very reasonable
compromise to the approach that has
been taken here today. H.R. 1212 is a
bill whose time has not come.
Mr. Chairman, I rise in opposition to H.R.
1212 and in support of the Young-Darden
substitute.
I oppose and testified against legislation to
ban the polygraph last year, and I continue to
oppose it, because I believe that such legisla-
tion would deprive private employers of a very
important tool in screening out thieves and
criminals from various specialized pla :es of
employment Polygraph tests are r :eded.
They are effective, and they protect tanks,
child-care centers, and nuclear powetF:iants.
Businesses of all kinds need the polygraph to
help them hire trustworthy people and combat
an estimated annual loss of $40 billion from
theft.
Obviously polygraphs work and clearly Con-
gress knows they work. Time after tirre the
House has voted to allow Government tgen-
cies to use the polygraph. Just this year 'e in-
cluded by a vote of 345-44 a provision 1 the
1987 defense authorization bill which permits
random polygraph tests of DOD employees
and contractors with access to sensitive infor-
mation. We also passed the State Department
authorization bill 414-0 in June which allows
polygraph testing of Embassy security person-
nel.
Department of Defense counterintelligence
personnel have identified seven cases in the
past 2 years in which polygraph examinations
uncovered information about potentially seri-
ous national security breaches that would
have never come to light without such a pro-
gram. For instance, a polygraph exam of a de-
fense contractor employee applying for spe-
cial access clearance revealed that he has
previously been involved in a scheme to
smuggle U.S. high technology equipment to
the Eastern bloc.
In case after case there is evidence to
show that the polygraph is critical to efforts to
protect our Nation's security interests from es-
pionage. During the Defense Appropriations
Subcommittee's investigation into the Walker
spy ring Members asked witnesses what could
be done to prevent such activities in the
future. Admiral Butts, who was the Chief of
Naval Intelligence at the time, told us that
random polygraph testing would be the most
effective deterrent That is why Representa-
tive BILL YOUNG of Florida added a provision to
the defense authorization bill that would allow
random testing. If the possibility of polygraph
testing is such an important deterrent factor to
the Department of Defense, how can we then
disallow its use-and thus its deterrent effect
on thefts and dishonesty in the private sector.
So we've acknowledged that our national
security needs require the protection provided
by polygraph exams, yet why are we now
saying that our private citizens are not entitled
to the same protection? That's foolish. It
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CONGRESSIONAL RECORD - HOUSE H 9591
would be horribly inconsistent to approve the
use of the polygraph for the Government, and
then prohibit It for the private sector. Yet
that's what we're about today.
Opponents of the polygraph argue that poly-
graph examiners are poorly trained and that
the results are inaccurate. However, the poly-
graph has consistently proven accurate 65 to
95 percent of the time, and that's why we
want our intelligence gathering agencies to
use it.
In my 6 years as a criminal prosecutor in
Louisiana. the polygraph proved to be a valua-
ble investigative tool upon which we relied.
There were times when charges were actually
dropped because of a defendant's perform-
ance on a polygraph. The exam is valuable, it
not only helps in catching crooks, but in clear-
ing innocent people as well.
It is in everyone's interest that polygraph re-
sults be as accurate as possible. In Louis.ana,
laws have been passed which establish guide-
lines for the training and licensing of poly-
graph examiners, set requirements for the
equipment used in the test, and institute pro-
tections for the rights of those taking the
exam. In fact, according to the U.S. Chamber
of Commerce, 34 States and the District of
Columbia now regulate the practices of poly-
graph examiners. Although I do not see any
purpose in involving the Federal Government
in this area at all, it would be better to pass
legislation modeled on current State law than
to simply outlaw the use of the polygraph in
the private Sector. That is why I support the
Young-Darden substitute amendment.
The substitute allows private-sector employ-
ers to use polygraphs provided they follow
certain guidelines. It protects examiners by
making it illegal for examinees to ask ques-
tions concerning religious, racial, political or
social beliefs. Further, it specifies that poly-
graph results may not be used as the sole
basis f r an employment decision. There are
also pt visions allowing relief in Federal court
for any improper use of the polygraph. This
substitt,:e allows the private sector to protect
itseti, and us, from dishonest employees, but
at the same time it preserves the rights of all
employees from possible polygraph abuses. h
is a fa,r and reasonable alternative to H.R.
1212.
AAr. ("'airman, I urge the Members to sup-
port the Young-Darden substitute and oppose
H.R. 12 2.
Mr. RO NI AND of Georgia. Mr.
Chairman. I move to strike the requi-
site number of words.
(Mr. ROWLAND of Georgia asked
and was given permission to revise and
extend his remarks.)
Mr. ROWLAND of Georgia. Mr.
Chairman, there has been consider-
able discussion about the degree of ac-
curancy of polygraph examinations.
Even the most ardent believer in
polygraphs will concede that they are
not infallible. Unfortunately, the re-
sults o polygraph tests have some-
times been treated as absolute fact.. It
is this kind of abuse that the Young-
Darden substitute seeks to eliminate.
At the same time, it is my under-
standing that over the past 10 to 15
years important strides have been
made in the training of examiners, in
the sophistication of the testing. and
in the quality of the equipment. Poly-
graph testing is more reliable as an In-
vestigative tool today than it has been
in the past.
As a physician, I am very aware of
the usefulness of electrocardiograms
in the diagnosis of a heart condition.
But as every physician knows, an elec-
trocardiogram does not tell every-
thing. While It is an important tool, it
is not the only one which is used to de-
termine the cardiac status of a patient.
Many other tests are also used.
The same is true of a polygraph test.
It can be helpful if properly used in
conjunction with other investigative
procedures.
However, given the fact that poly-
graph testing is not totally accurate, it
is important that something be done
to prevent the abuses. Among other
things, the Young-Darden substitute
would prohibit any employer from
making a decision about an employee
based solely on the results of a poly-
graph test. Other investigative tech-
niques would need to be used to deter-
mine whether any action should be
taken.
I believe that employees deserve pro-
tection against the improper use of
polygraph examinations. I do not be-
lieve that an absolute ban on poly-
graphs is the way to provide that pro-
tection. In my view, Mr. Chairman,
the Young-Darden substitute is an ap-
proach that all sides on this issue
should be able to support.
Mr. HUTTO. Mr. Chairman, I move
to strike the requisite number of
words.
(Mr. HUTTO asked and was given
permission to revise and extend his re-
marks.)
Mr. HUTTO. Mr. Chairman, I rise in
support of the Darden-Young substi-
tute to the Employee Polygraph Pro-
tection Act. My State of Florida first
passed laws regulating the polygraph
industry in 1967. Over that time, the
State has developed a system of strin-
gent regulations that allow both busi-
ness and labor access to the polygraph
while minimizing instances of abuse.
Florida's former secretary of state,
George Firestone, presented testimony
to the last Congress detailing our
State's experience with the polygraph.
I would like to share some of his ob-
servations with you.
Last year, there were 519 fully li-
censed polygraph examiners in Flori-
da, conducting an estimated 300.000
tests a year. State law requires that
each of those 300,000 individuals be
told that they have a right to file a
complaint with the secretary of state,
yet only one validated complaint
aginst an examiner was filed all year.
This evidence would lead me to con-
clude that polygraph abuse is neither
widespread nor prevalent in our State.
Furthermore, there is evidence to
show that the polygraph can benefit
both employers and employees.
It benefits our State in that those
who are qualified to work can find
jobs. And it certainly benefit., our citi-
zens when they are protected by the
information from polygraph tests
from persons who would use their Jobs
to commit crimes.
In Florida, the polygraph fulfills
demonstrated public need to employ-
ers, employees, and customers. One of
the reasons it serves us so well is be-
cause we enforce a strict set of stand-
ards, restrictions. and practices regard-
ing the polygraph.
I support the Young-Darden substi-
tute because it respects my States's
right to use the polygraph under the
regulations that it determines to be
appropriate. If Congress were to
outlaw polygraph testing in the pri-
vate sector, the Federal Government
would be denying our citizens jobs.
stripping our businesses of an impor-
tant tool they need to operate, and in-
truding in our legitimate right to
manage our own affiars.
I urge my colleagues to join with me
in supporting the Young-Darden
amendment.
Mr. RAY. Mr. Chairman, I move to
strike the requisite number of words,
and I rise in support of the Darden-
Young substitute.
(Mr. RAY asked and was given per-
mission to revise and extend his re-
marks.)
Mr. RAY. Mr. Chairman. I wish to
compliment the gentleman from Geor-
gia [Mr. DARDEN] and the gentleman
from Florida [Mr. Youwc] for their in-
terest in business. These gentlemen
are probusiness. They have dug into
the situation that is affecting busi-
ness. They have come down on the
side of being probusiness, and I think
they have done a very good fob in
crafting and bringing together this
substitute.
Mr. Chairman, today we are consid-
ering legislation that those on both
sides of the issue agree would make
sweeping changes in the polygraph in-
dustry and dramatically affect dozens
of other industries that rely on the
polygraph.
While all of us would agree that
polygraph abuse should be stopped,
many of us nonetheless believe that
H.R. 1212, which outlaws the poly-
graph in many private sector indus-
tries, has serious flaws. It sets up a
double standard between the Govern-
ment and private industry. We should
pass legislation that takes a consistent
approach to polygraph regulation.
Banning the polygraph In many pri-
vate sector industries while allowing
its use by Government agencies is in-
consistent with Democratic principles.
Government officials at all levels-
from the CIA to local police forces-
have said that the polygraph can be
an essential tool in investigations,
often providing the key to solving a
case. The Congress has passed legisla-
tion to require expanded use of the
polygraph by the Defense Department
to protect our national security. If the
polygraph is useful to them, it must be
useful for private employers as well.
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H 9592 CONGRESSIONAL RECORD - HOUSE November 4, 1987
Mr. DARDEN. Mr. Chairman, will inventories and to screen personnel so edged the legitimacy and efficacy of polygraph
the gentleman yield? that they can detect, correct, and testing in some stituations because of the ex-
Mr. RAY. I yield to the gentleman avoid problems before they cause emptions written into this bill. As we know,
from Georgia. damage or injury. A company's inter- H.R. 1212 proposes to ban polygraph testing
Mr. DARDEN. Mr. Chairman, does nal controls provide the quickest, the by all private employers, except for: First, all
the gentleman realize that if this com- most economical, and the safest solu- Federal, State and local government employ-
mittee bill is adopted, we would not tion to many of these problems. ers. and second, private employers engaged
even be able to administer a polygraph This brings me to my second point: in governmental intelligence or counterintell -
test to people who go to work in day not only is the double standard wrong, gence work. The bill specifically exempts em-
care centers before they go to work but so is the triple or quadruple stand- ployees of the CIA, the National Security
there? and that would be created if some busi- Agency, the FBI, and DOD from the ban.
We are told that 52 percent of Amer- nesses were allowed to use polygraph In addition, this body has already officially
ica's mothers with children of the age testing and not others. acknowledged how essential polygraph testing
of 6 are in the work force, and many I believe it is essential that we con- is for national security purposes. In the last
of these children are taken to day care sider the needs of industries which use Congress and again more recently, during
centers and nursery schools every day the polygraph to protect the health, consideration of the Defense Authorization
while their mothers work. Does the safety, and resources of millions of bill, we overwhelmingly endorsed the use of
gentleman agree that we have a re- Americans. It is essential that we polygraph testing Unquestionably, there are
sponsibility to protect these children make sure that the legislation we de- places and occasions where polygraph testing
from the possibility of abuse by unfit velop addresses their concerns in an is vital.
employees in these child day care cen- appropriate manner. While we have a vii to say that ptests are
o are
ters? responsibility to our constitutents to S are we
and we otisl; and that a polygraph aphgtest test
Mr. RAY. Mr. Chairman, I do agree protect them from abusive polygraph good polygraph
the in the e public lit sector
reliable for for use
with the gentleman from Georgia. I exams, we also must make sure that is
r
also would make an inquiry of the gen- we don't pass a bill that disregards the but not tool r double Congresre-
tleman, who is. I believe, a former dis- legitimate needs and concerns of em- this a i legitimate asnoe another het acknowledge p p
trict attorney in Cobb County, GA. ployers. I believe it is possible to strike sumes to impose? We standard essential cannot role of poly-
Mr. Mr. DARDEN. That is correct. a balance between the two.
Mr. RAY. I understand the gentle- The Young-Darden substitute sets graph testing as a legitimate and effective tool
man had many cases dealing with up guidelines for those States that for the Government to use, and yet deny its
child abuse in day care centers, or at have either weak or no polygraph leg- credibility and efficacy for the private sector.
least the gentleman knew of many islation. It sets standards which ensure Obviously, the polygraph test has a proper
cases? not only that examinees are protected place in both Government and private busi-
Mr. DARDEN. Yes. And in addition but which require tests to be thorough ness.
to that, if you look at the newspapers and given by competent examiners. Yes, abuses can and do occur; however,
over the last several years, there have This legislation recognizes the prac- the abuses occur when there are no regula-
been rampant examples of abuse by tical needs of American business and is tions-when there are no standards for train-
employees of day care centers. All we responsive to the potential harm that ing, and when there are no guidelines for con-
need to do is call the Congressional can be done to examinees by improp- ducting the tests. The answer is to eliminate
Research Service. We found about 40 erly trained testers or others who the abuses of polygraph testing, not the uses
or 50 such examples just in the past abuse test results. It recognizes that of polygraph testing. Banning the use of the
year. the States are best able to consider all polygraph is throwing the baby out with the
We believe this is one more reason of these needs and to find the balance bath water.
why we must have the use of the poly- that works best for their citizens, The Young-Darden substitute properly ad-
graph to prohibit people such as this using guidelines that we establish at dresses the need for regulating the use of
from looking after our children under the Federal level. polygraph testing and ensuring that examiners
the guise of caring for them. The polygraph has a role to play as meet certain standards, while at the same
Mr. RAY. I know the gentleman is one of the tools used by companies in time guaranteeing the rights of individuals
aware of this problem, and so am I. internal investigations, but the poly- being examined. This is where our focus
The most precious commodity we have graph must be administered fairly and should be-recognizing the essential role of
is our children. Certainly we need to accurately if it is to be effective. The polygraph tests, while at the same time recog-
do everything we can to protect these Young-Darden substitute would reg- nizing the need to provide uniform, strict
children in day care centers. ulate the polygraph industry to pro- standards.
Mr. DARDEN. Mr. Chairman, I tect employees while serving American is a balanced
thank the gentleman. business by improving the reliability The e Young-Darden Darden en substitute tute that protects ced
Mr. RAY. Mr. Chairman. in an arti- of polygraph exams. the employee/ measure two that prof and ot
cle in the Labor Law Journal, a noted Mr. JEFFORDS. Mr. Chairman, I the emIt is r a moderate aplcyee, a d the
polygraph authority said "If * * * the move to strike the requisite number of employer. sector the same which
pro-
ch
test is reliable enough to aid in pro- words. would erld allow the prthe iva te Government I urea my
moting public safety by keeping dis- (Mr. JEFFORDS asked and was tections afforded colleagues afforded
dote her the rnment deg, sub-
honesty among public employees in given pern-~~sion to revise and extend collet
check, it must logically follow that pri- his remarks. T Mr. JEFFORDS. Mr. Chairman. I do
vate employers be allowed to impose Mrs. VUCANOVICH. Mr. Chairman, not intend to take much time, but I do
its use as well." will the gentleman yield.
Over the past several decades, we Mr. JEFFORDS. I am happy to yield want to clarify a couple of things.
Earlier I spoke and took a position in
have passed hundreds of bills requir- to the gentlewoman from Nevada.
ing business and industry to protect (Mrs. VUCANOVICH asked and was strong opposi~ion to amendments to
the health and welfare of their cus- given permision to revise and extend this bill, and I am most strongly in op-
.
fortis. We require them to accept her remarks.) ,r position to Something this is wrong particular if amethendmentsystem
this responsibility, and we give citizens Mrs. VLCANOVICH. Mr. Chairman,
the right to take them to court if tht y I rise in support of the Young-Darden does not work, and nothing we can do
violate it. substitute and urge its adoption. This to regulations is going to fix it. My po-
The business and industrial mansoer is a good substitute. It is a good bal- sition is that any validity there may be
in this is far outweighed by the dam-
serves at the first line of defen~r in anted bill.
protecting the public from abuses of Mr. Cnasmsri. proponents of H.R 1212 say ages created to the individuals who are
products, services, and employees. It is that polygraphs aor i work; that they aren't re- forced to go through the polygraph
in the employer's and the public's in- liable. We!. M- Chairman, these same props- examinations, and the general feeling
terest for businesses to monitor their nents of H R. 1212 have already acicnowl- among those who have studied this
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November 4, 1987 CONGRESSIONAL RECORD - HOUSE H 9593
issue is that it is no better than a flip
of a coin.
I did vote for the Gunderson substi-
tute because I believe that the intimi-
dation factor, which I believe is a pri-
mary consideration, can sometimes be
successful. In fact, I would point out
one incident to the Members where
the police, who were very imaginative
and did not have a polygraph handy,
wired a fellow up to a Xerox machine
and started questioning him, and at an
appropriate time they pushed a button
on the machine where they had previ-
ously put in a piece of paper that said,
"It's a lie." So when they asked the
gentleman as to whether or not he
had committed the crime, they pushed
the button, and out popped the paper,
it said, "It's a lie," and he confessed.
I can see that this machine or these
kinds of tactics of intimidation can led
to some utility, but the question is
whether it is utility with respect to
preemployment.
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield?
Mr. JEFFORDS. I yield to the gen-
tleman from Florida.
Mr. YOUNG of Florida. Mr. Chair-
man, I thank the gentleman for yield-
ing.
I agree with the gentleman and the
problem that the gentleman expresses
about the Xerox machine.
Under H.R. 1212 that could still
happen. Under the Darden-Young sub-
stitute, because we put in place certain
safeguards, that could not happen; but
under H.R. 1212, the situation that
the gentleman is really worried about
can still happen.
Mr. JEFFORDS. I do not want to
stop police officers from being able to
do their duty in that kind of fashion.
I would say that I think that the bill
or the amendment that we have here
is going to create more problems than
it solves, and I would like to refer to a
colloquy that I had earlier with the
gentleman from Texas, because I do
not want to leave any impression upon
the Members that I made a misstate-
ment.
I indicated that the DOD study did
not show any studies which indicated
there was a validity with respect to
preemployment screening, or if there
was, it was done by a polygraph exam-
iner.
The gentleman from Texas [Mr.
DELAY] took serious exception to that,
but the gentleman gave me a list of
the studies to which the gentleman
relied upon.
There was one study that was re-
ferred to in the DOD study which in-
dicated that there was validity to pre-
screening for employment. However, it
was by a polygraph screening director
of the Polygraph Screening Service in
Salt Lake City, UT, Dr. Barland, who
is not referred to as being a polygraph
expert on the gentleman's list.
There are other studies, the Bursch,
Bloom and Edle study, and one was a
study by Mr. Horvath, former chief
examiner for the largest polygraph in-
stitution in the United States, and the
others he referred to were studies by a
Dr. Raskin.
Let me read what he said in testimo-
ny before the Senate committee.
There is no scientific evidence that poly-
graph testing, when used in the commercial
sector for screening, has any scientific valid-
ity ? ' ' One thing I would like to point out
very clearly is that there is a substantial dif-
ference between its use in criminal investi-
gation and in national security applications
as compared to commercial screening appli-
cations.
Except that one study done by a
polygraph operator, that has shown
any validity to preemployment screen-
ing, and we are dealing with that here.
I could take a little issue with the
gentleman from Florida that we
cannot still have quickies on this. be-
cause the amendment only says that
they must set aside 1 hour.
It does not say that they have to
have an exam that lasts at least an
hour, so I do not think it does all the
gentleman hopes it will do.
We should not be validating some-
thing which has never been proven to
be validated, except in one city by a
polygraph operator.
Mr. DELAY. Mr. Chairman, I move
to strike the requisite number of
words.
(Mr. DELAY asked and was given per-
mission to revise and extend his re-
marks.)
Mr. DELAY. Mr. Chairman, I wish to
answer the gentleman from Vermont,
the gentleman's statement that there
is only one study on preemployment
polygraph examination.
I would like to clear it up. There is
one study in the Department of De-
fense survey of 42 studies. There are
42 studies in 1 survey.
I would also like to point out that
they are not the only studies that
have been done on preemployment
polygraph examination, the effects of
motivation.
There is another survey, a review of
the scientific literature of the validity,
reliability and utility of polygraph
techniques and many others that I
could refer to.
There are more studies than have
been quoted by the proponents of this
bill.
They say the AMA and the OTA
have done studies. I can show you 42
in 1 survey and hundreds from all over
the world, Canada, Israel, and other
countries in this world in this particu-
lar review.
Every one of them says that there is
some validity in some way, or I should
not say every one of them, but the
vast majority of them say that there is
validity in the polygraph system, and
most of them say that there is at least
validity in at least 80, if not 95, per-
cent of the examinations taken.
That is not the point. They have seen this when I came over earlier in
brought up a few studies. We have the day and got involved in the debate.
brought up many, many studies that Let me quote a few relevant passag-
are done to attest to the validity. es.
I think the real validity is if the
polygraph is not any good, then why
are so many people using it? Why has
this House recognized that it would be
valid in the case of drugs and financial
institutions and in the Government? It
is valid. There is no argument.
There is one opinion by this side,
and our opinion is that it is valid.
The point is that it is valid, and this
substitute restricts and gives you crite-
ria by which it is not abused and gives
certain minimums by which you can
hold the examiner's feet to the fire.
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield?
Mr. DELAY. I yield to the gentleman
from Florida.
Mr. YOUNG of Florida. Mr. Chair-
man. I thank the gentleman for yield-
ing.
On the subject of accuracy and ef-
fectiveness of the polygraph, 2 years
ago this House and the Congress cre-
ated a temporary test program in the
Department of Defense for polygraph,
and a school for polygraph examiners
was established at Fort McClellan, AL.
Under this test program, poly-
graphers for the Department of De-
fense conducted 9,500 exams. The De-
partment of Defense did a random
survey of those people who took those
polygraph tests, and found that 99
percent did not think that the poly-
graph was unfair in any way, or that it
was objectionable or an unwarranted
invasion of privacy.
Based on this study, this House and
the conferees committee on the au-
thorization bill now have agreed, to
make the test program a permanent
program because they are satisfied it
works when you do it right.
We are trying to put in place the
same professional requirements that
the Department of Defense is using at
their school at Fort McClellan, AL.
Mr. DELAY. The gentleman from
Vermont did not refer to the other
studies done on postincidents, crime
detection, and others that were done
that were highly effective, so what the
gentleman is saying, and what most of
them are basing the invalidity of a
polygraph on is saying that there are
no major studies done on prescreen-
ing, but there have been many studies
done on criminal investigations, post-
incident investigations that show
time and time again that it is a valid
process.
You cannot have it both ways, where
it is not valid for prescreening, so it, is
not valid for anything.
It is valid, and we all know it is valid,
and it ought to be used to protect the
citizens of America.
Mr. NEAL. Mr. Chairman, I move to
strike the requisite number of words.
I would like to share with the Mem-
bers an article that I found in my desk
today. It is interesting, and I had not
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H 9594 CONGRESSIONAL RECORD - HOUSE November 4, 1987
Donald Davis is a 22-year-old worker, highly trained or qualified, would you words. I rise to speak in favor of the
and so on, and was grilled extensively want to subject your life, your future substitute.
by police after reporting his wife's dis- to this kind of gadget? Mr. Chairman. I will not take the
appearance on January 12. If you answer yes, I guess you can entire 5 minutes, but I must say in re-
He flunked every time he was asked say yes, this is just wonderful. sponse to my good friend, the gentle-
if he had killer her. I will skip down in Let us run ahead with these kinds of man from North Carolina. who is very
the article. tests, but this is a very dangerous eloquent, that I want to call to the at-
"They asked me if I killed my wife precedent. tention of the gentleman and the at-
with a gun or a knife or my hands. and It has been said over and over again tention of the House in the example
they asked me if I threw her off a today that we are being hypocritical that the gentleman used of a law en-
mountain or in a lake or a river or a when we say we ought to let the Fed- forcement lie detector or polygraph
rock quarry," he said. eral Government, the intelligence which later proved to be false is ex-
The polygraph report showed a long agencies of our country use these pressly permitted and authorized
list of questions, each asking if he gadgets but not let private business, under the bill that is before us: so if
killed the woman or knew where she and that is absolutely correct. you want to eliminate or to restrict
was, or if she was alive. If we let our intelligence agencies any abuses that you may see happen-
Beside each question was Davis' re- use these gadgets and rely upon them ing in law enforcement, then you
sponse of no, along with the word "de- for important national security ques- should vote against the bill.
ception." tions, we subject our country to great On the other hand, the Darden-
The story goes on to point out that danger. Young substitute that is before us
his wife returned. She left town, had I would urge the Members not to would establish minimum standards
gone to somewhere in Florida. She continue to let the intelligence agen- for polygraph examiners, require-
said she wanted to find out if she cies of this country use these gadgets meats that the questions be in writing
could make it on her own. She was in a way that might put our country in and a whole host of other standards;
gone 6 weeks, and somehow called great jeopardy. so if the gentleman is interested, as I
home and talked to a girlfriend; and There are mental techniques that know he is, in curing the problem that
the girlfriend told her about the prob- can be used, drugs that can be taken he specifically cited, that is, a poly
lems her husband was having. and be- so people can defeat these tests, and graph p that was used in a law enfoy-
cause she returned, he was not con- we run a grave risk. gent case and it used inoat a bo i-
victed of murder. The CHAIRMAN. The time of the correct, then he should turned utefor the
The article ends with a quote from gentleman from North Carolina (Mr. , then he will establish mini-
lying. Mr. Davis where he says, "I wasn't NrALl has expired. substitute rrc mum standards, improve those s f-
lying. It was that lie detector that was (On request of Mr. SwiwDALL, and by mum and establish star a the for anlying ? unanimous consent, Mr. NEAL was al- ards. examiners had andminafionpoly- .
There are several major problems lowed to proceed for 1 additional graph The House needs a understand
ions,
with this proposal to use widespread minute.) there are otwo us bile before us. The main
lie-detector tests, and the first one is a Mr. SWINDALL. Mr. Chairman, will d prohibit in are cases the main
very basic constitutional question: The the gentleman yield? bill a polygraph examination withus
question of our system of justice. Mr. NEAL. I yield to the gentleman of of l whether it meets withrut
Under our system we assume that from Georgia. regard not, except hit Government standa
work.
our public, the people of this country, Mr. SWINDALL. Mr. Chairman, .1 not wn s ent w w
k.
are innocent until proven guilty. The thank the gentleman for yielding to For t t, except for
are given in the bill work. all, or standor
. drugs
widespread use of lie-detector tests me, On the ohand, there is the
says to our public that you are guilty, First of all. what would the gentle- Darden-Young other f substitute that would
and you must prove your innocence, man do about the situation which I Dy that o g there had been abuses In
and how are you going to do it. addressed earlier where there is a con-
Lobe there are
stand d r adopt
You are going to do it with a gadget victed ex-con who desires to have a polygraphs,
that our now distinguished Senator polygraph to clear his or her good ought all cases.
from North Carolina called 20th-cen- name? those
Mr. HEAL. standards foMr. r Chairman. will the
tury witchcraft. These gadgets do not What would the gentleman do for
work. that person? gentleman yield?
I looked at some of the studies the Mr. NEAL. I would have to say to Mr. BARTLETT. Yes, I yield to the
distinguished gentleman from Texas that person, you cannot do it with gentleman from North Carolina.
was quoting. Every one of those stud- these gadgets, because they are inher- Mr. NEAL. Well, Mr. Chairman, I
ies I could find some weasel word, ently unreliable. would just like to make one point. I do
some way of qualifying that study to I have a hearing record of hearings not mean to be too facetious. I am
make it clear that these lie detectors held before the Committee on Govern- quoting from a statement by a distin-
are simply not reliable. ment Operations when we heard wit- guished Member of this House.
I have not seen these comments. but ness after witness testify to the point, I would say I would consider estab-
it has been said over and over again to the fact that these gadgets are not lishing standards for these so-called lie
today that the American Medical As- reliable: and for that reason, I would detector tests about like establishing
sociation is against the use of these have to say to the gentleman, you standards for the dunking stool, the
gadgets, that the American Psycholog- cannot depend on these gadgets to fi- rack, and the firing squad. These are
ical Association, the experts on test- nally determine innocence or guilt, all techniques for eliciting a particular
ing, are against using these gadgets. Mr. SWINDALL. Under that scenar- response, but I submit to my good
Let us pay some attention to these io, the person loses his job, so what friend and my distinguished colleague
experts in the field. We are running could be worse? that these lie detector tests are no
the grave risk of putting American more accurate than the gadget that
02045 they used to dunk people to determine
people at great risk in an attempt to
poor if Mthey r. BART L liars.
find some quick fix for a very serious lose Mr. thNEAL, eir jobs, Many junto like axe
TT I understand.
problem.
Let me close by asking the Members fellow here. This fellow could have Mr. HEAL. I would hope we would
to ask yourselves this question: Would ended up. "Lie Detector Tells Fib," the not proceed with those things in this
you like to subject your future, your headline says. This fellow could have modern-day era.
future, the opportunity to work and in ended up dead because of a faulty lie Mr. BARTLETT. I understand the
some instances to be free, to this little detector. gentleman's modernization. I did not
black box, this little gadget, plus some Mr. BARTLETT. Mr. Chairman, I make that statement and the gentle-
person, usually a person that is not move to strike the requisite number of man did not: but the bill that the gen-
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November 4, 1987 CONGRESSIONAL RECORD - HOUSE
tleman from North Carolina plans to
vote for and is speaking for establishes
no standards whatsoever for Govern-
ment uses, none, not one. If it is a gov-
ernment use, if it is a law enforcement
agency, if it is the Congress of the
United States, we will have no stand-
ards, not one; but under the Darden-
Young bill we would establish at least
some standards for all uses of the
polygraph.
Mr. NEAL. Mr. Chairman. will the
gentleman yield one more time?
Mr. BARTLETT. I yield to the gen-
tleman from North Carolina.
Mr. NEAL. It me say, Mr. Chair-
man, I share that concern and I would
hope that we would understand that
these gadgets are inherently unreli-
able and not depend on them for the
Government use. If we can stop their
widespread use, which I believe to be
unconstitutional and unreliable with
the American public, maybe we can
move to stop their use in the Govern-
ment also.
Mr. BARTLETT. I understand what
the gentleman is saying. That is not
the subject that is before the House.
We have two bills before the House.
We can choose one to prohibit all uses
in private industry and no standards
at all in the public sector, or two, we
can acknowledge that we should estab-
lish some standards, minimum stand-
ards, and some licensing requirements
for the use of the polygraph.
I urge the House to take the other
course, the Darden-Young course, for
the minimum standards.
Mr. OBERSTAR. Mr. Chairman, I
move to strike the requisite number of
words.
(Mr. OBERSTAR asked and was
given permission to revise and extend
his remarks.)
Mr. OBERSTAR. Mr. Chairman, if
the claims of its supporters can be be-
lieved, the polygraph is truly an amaz-
ing device. It is supposed to measure
our intangible thoughts: determine if
we are telling the truth or telling a lie;
it is supposed to help police and pros-
ecutors determine the truth of a sus-
pect's statements, and thereby deter-
mine probable guilt or innocence. It is
supposed to aid employers to weed out
those prospecti~e employees who
would be prone to he,, to cheat, and to
steal. If all those claims are believed,
the polygraph is truly an amazing
device. It can find that most elusive of
all human qualities: truth.
Unfortunately, the fact is that the
polygraph does not measure truth and
it does not measure falsehood. It can
only measure physical reactions such
as blood pressure, heart beat, perspira-
tion, and then technicians take those
reactions and measure them. against
research figures to determine if the
subject is uncomfortable enough to be
suspected of telling a lie.
What type of device is this to inflict
upon human beings, who as the gen-
tleman from North Carolina so elo-
quently said, under our Constitution
and under our system or jurisprudence
are presumed to be innocent until
proven guilty.
Polygraph testing has expanded in
recent years in the private sector, as
businesses have sought them out and
used these devices for preemployment
screening, for internal security investi-
gations to determine who gets hired
and who gets fired, who advances in
his or her career and who is set aside.
At the same time. the validity of poly-
graph testing has come into wide ques-
tion all across this country. The Office
of Technology Assessment has report-
ed that available research evidence
does not establish the scientific validi-
ty of polygraph testing for personnel
security screening.
Twenty-two States and the District
of Columbia have restrictions on the
use of polygraphs for testing for pri-
vate employment, but that is not
enough. Companies can circumvent
that provision by hiring people in
States that do not restrain or restrict
or prohibit polygraph testing and then
transfer their personnel into those
more restrictive States.
The numbers speak for themselves.
The American Polygraph Association
says that 98 percent of the 2 million
polygraph tests given each year are
given by private business. three-
fourths of those for preemployment
screening. I cannot think of a more in-
trusive and dangerous device to inflict
upon the people of this country than
polygraph testing on such a wide-
spread indiscriminate basis.
I think this legislation is a reasona-
ble approach, one that protects the in-
tegrity of the individual and it is a bill
that we ought to pass.
Mr. FRENZEL. Mr. Chairman, I
move to strike the requisite number of
words.
(Mr. FRENZEL asked and was given
permission to revise and extend his re-
marks.)
Mr. FRENZEL. Mr. Chairman, I am
one who has had some experience with
these particular kinds of machines in
private business and in all the cases
where I saw it applied, there was a
positive result. I have not heard
anyone claim a hundred percent accu-
racy for the process. I have not heard
anyone claim a hundred percent accu-
racy for interviews or drug tests or
even thermometers, as far as that
goes.
1 myself probably am a dangerous
weapon. I interview a lot of employees.
I am certainly not a skilled interview-
er. I am considerably less dangerous
than a polygraph.
But what this bill does is to bar the
use of polygraphs. It means you
cannot use them in connection with
any other system, machinery or proc-
esses, that you might want to use to
check on employees in which cases
you need some very strong security.
The bill is a little bit inconsistent be-
cause it does allow exceptions, and as
the gentleman from Florida has point-
ed out, you are going to have poly-
H 9595
graph use whether this bill passes or
not.
My personal preference would be
that there would be no messing
around in the private use of poly-
graphs by the Congress.
I understand 41 States have laws on
the books relating to polygraph use or
standards, and in my judgment it is a
splendid area in which the States
should legislate and a wonderful area
for the heroes of Congress to stop
messing; but if we are going to pass a
bill, we certainly should have the good
sense to accept the Young-Darden sub-
stitute, because at least there we have
some consistent principles that will
protect everyone, not just those who
were fortunate enough to get exclu-
sions from the bill.
I think any rule of good reason and
sanity would lead us to support the
Darden-Young substitute, if indeed we
have to legislate in this field at all.
Mr. WILLIAMS. Mr. Chairman, I
move to strike the requisite number of
words. I raise in opposition to the
amendment, but really for the purpose
of thanking my colleagues who have
been more than patient during what
has been really a good debate and has
focused by both the opponents of - my
bill and the supporters of my bill and
the opponents and supporters of the
substitute now before us have focused
on the merits and the demerits of the
lie detector.
We are now approaching just a few
minutes short of 10 hours on this bill.
It is interesting that we can pass a rec-
onciliation bill within an hour. We can
spend $100 billion within just a few
minutes with no debate, but it takes 10
hours to get passed an emotional issue
like this.
The debate has been good. The at-
tention has been good.
Mr. Chairman, orderliness of the
House has of course been excellent
and we appreciate everyone's involve-
ment in this.
I would also remind the Members
that we just finished voting on this a
year ago on this very substitute and
turned it down 173 to 241. I urge you
to turn it down again tonight.
Mr. BILIRAKIS. Mr. Chairman, I
move to strike the requisite number of
words.
Mr. Chairman. I yield to the gentle-
man from Florida [Mr. YotTNG).
Mr. YOUNG of Florida. Mr. Chair-
man. I thank the gentleman for yield-
ing. I will be very brief.
I listened to the debate of those who
say that the polygraph does not work.
If it does not work, I say to my dear
friends and colleagues, if it does not
work, why are you supporting a bill
that allows it to be used in all the Fed-
eral Government, every State govern-
ment, every county, every city, and
every political subdivision in America,
the FBI, contractors, security guards,
those involved in the drug industry? If
it does not work, why are you going to
support a bill that allows it to be used
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H 9596 CONGRESSIONAL RECORD -HOUSE November 4. 1987
without any professionalism in mil- measure would guarantee specific rights to Vies, citizens bast, And lM am demorlstratbrtg
lions and millions of cases? employees asked to take a . polygraph and ptalr ability to do i
I thank the gentleman for yielding. would impose stringent Federal standards on Further, it has traoNortaiy been the purview
Mr. BIURAKIS- Mr. Chairman. I polygraph examiners- In addition, the soloed. bf the States to regulate oc, ii nerCe vapor
endorse the gentleman's remarks and site respects the rights of State and local gov- p bounden. They have wipatNnwnx to
ask that we support the bill. ernments to impose their own more stringent certify that those who deir4w hesJth care serv-
Mr. PARRIS. Mr. Chairman, our national se- standards on the polygraph industry. loss to residents are qualified to do so. They
curity agencies repeatedly come to us asking Though not infallible, polygraphs have dam- Oversee ~Shoe and real estate brokers,
for authority to conduct polygraph examine- onstrated a o~ accuracy in determining a utility companies, doctors, lawyers, and den-
tions as part of their programs to guard our a 'g truthfulness, I do not believe an em- lists, to name just a few. to national security. ployer should be deprived of this useful tool The States are equipped regulate the
So tar this year, this body has voted twice as a means to hire trustworthy employees any services offered by polygraph examiners as
to support measures that provide for poly- more than he Should be deprived of the im- well, as most have demonstrated by Passing
graph testing by the Federal Government. On perfect techniques of a personal interview, ref- their own legislation.
May 11, the vote was 345 to 44 in favor of an erence or written application. All of these Assistant Attorney General John Bolton
amendment offered by the gentleman from tools Should be used together to select the sent a letter to the Congress addressing this
Florida [Mr. YOUNG] to the Defense Depart- most qualified candidate. I would We to point issue. He said:
ment's authorization bill. The measure estab- out that the Young-Darden substitute would Polygraph misuse may be more appropri-
fishes a permanent Polygraph program for na- assure that no employment decision would be stely deterred by restricting the conditions
tional defense agencies. under which polygraphs are administered
made based solely upon the results of a poly- rather than prohibiting their use attogeth-
'
bill. That amendment included language to re- examinations in the private sector, a number
was a unanimous vote to back an amendment take a polygraph.
offered by the oentleman from Florida [Mr. When the House passed in the 99th Con-
Then just 1 month later, on June 16, there graph examination or an employee
s refusal to er. The States are better equipped to make
The increasing prevalence of espionage
and deceit in our Government underscores
the need for polygraph examinations. And
these latest votes, which are only the latest in
a series, show our consistent backing for the
use of polygraph testing to protect our nation-
al security.
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 spe-
cific 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, in-
ventories, and assets of American business
and industry as well, and they also are entitled
to access to the polygraph.
We would be establishing a dangerous
double standard if we were to approve this
legislation to strip business and industry of
access to the same investigative toot that the
Government obviously finds to be so useful.
Private business and industry also have a
serious responsibility to protect people and
assets. The polygraph enables them to better
carry out these responsibilities to protect the
health and welfare of our citizens
I urge my colleagues to oppose the ban on
polygraph testing in the private sector and in-
stead to support the more reasonable. and
workable, measure introduced by the gentle-
man from Florida [M; YOUkG1 and the gentle
man from Georgia [Mr. DARDEN', to set natio^-
wide standards for testing and examiner quali-
fications. It the polygraph technicue is accept-
able in protecting nat,ona' secure; and other
Government interestr_ it s"tou;o a!sc on ac-
ceptable to protect the tnterests of business
and industry.
Mr DREIER o` Ca. Mr. Chairman. I
rise today it support, o' the Young-Darden
substitute tc the Polygraph, Reform Act. The
substitute better addresses the concerns of
employees and employers over abuse in ad-
ministehng polygraph examinations This
quire counterintelligence polygraph examina-
tions for members of the Diplomatic Security
Services.
of exemptions were added to the bill which
had the effect of permitting polygraph tests in
selected industries. While I supported these
exemptions, Congress creates a double stand-
ard by exempting day care facilities, nursing
homes, pharmaceutical firms, armored car and
security guard agencies. and the nuclear
power industry from the ban on polygraph ex-
aminations. By retaining the use of the poly-
graph for all private sector employers, the
Young-Darden substitute would treat all indus-
tries equally.
Mr. MONTGOMERY. Mr. Chairman, as we
debate the merits of the Polygraph technique
and its value in the workplace, I ask my col-
leagues to focus for a moment on a larger
issue at stake here. Namely: the Constitution.
it is our responsibility to protect and ensure
the proper balance of power between the
States and the Federal Government.
There is no constitutional basis for a Fader-
a) ban on polygraph testing in the private
sector. Article 10 clearly states.
The powers not delegated to the United
States by the Constitution, nor prohibited
by it to the States, are reserved to the
States respectively, or to the people.
Thirty-one States already have passed poly-
graph legislation. At least four of them chose
to outlaw polygraph testing completely. The
others have developed various regulatory ap-
proaches that allow polygraph testing under
certain conditions.
it is clear that the States are accepting their
responsibility to regulate this controversial in-
strument.
The approach presented to us today to ban
the polygraph is an overreaction that under-
mines the hard and careful work. that the
States are doing to develop their own bodies
of law. The principles of federalism cae on us
not to intervene in matters that are the re-
sponsibility of the States and in which there is
no ovemd;ng need for a unitorrr, national
policy.
In fact, the heated debate among scientists
and academicians about the validrt of the
polygraph is evtdenne that this issue has not
been resoveo to the point. trial. any national
polcy Could be tormiletec_ This appears to be-
an aporcp'?cte 8'ea to which to allow the
States to c`eveop various approaches tnat suit
those determinations.
He suggested that the States can provide
avenues for appeal if someone feels his or
her rights have been violated. States also can
regulate the kinds of questions that are asked,
the equipment that is used, and the qualifica-
tions of examiners.
I agree with Mr. Bolton that the Federal
Government should not prohibit the use of the
polygraph in the private sector. There should
not be a flat, nationwide ban on the poly-
graph, but its use should be regulated on a
case-by-case, and State-by-State basis, as
provided by the Constitution.
The CHAIRMAN. The question is on
the amendment in the nature of a sub-
stitute offered by the gentleman from
Florida [Mr. YOUNG].
The question was taken; and the
Chairman announced that the noes
appeared to have it.
RECORDED VOTE
Mr. YOUNG of Florida. Mr. Chair-
man, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic
device, and there were-ayes 169, noes
242, not voting 22, as follows:
[Roll No. 4131
AYES-169
Anderson
Dannemeyer
Hefle~
Archer
Darden
Hefner
Armey
Daub
Berger
Badham
de Is, Garza
Biter
Baker
Delay
Hochbrueckncr
Ballenger
Derrick
Holloway
Barnard
Df'A .rte
Hopkins
Bartlett
Dickinson
Huckaby
Bateman.
DioGUardi
Hurter
Bennet*
Dornar (CA
Hutto
Bentley
Doaay.
Y' It
Bereuter
Dreier
Inhofe
Rex ill
Edwards 'OK
Ireland
Bilrakc,
Emerson
Jenkins
?tiiiry
Ertrei(h
Jone. (TN
Boaster
Faun 1,
Ka.u c r.
Broorn.fieto
Fhe12<
Kour.su
Buechner
Fnppn
K yl
Bunning
F`rerizc?:
Laenrnarsin(:
Burton
Galled}
Byron.
G i.:.
'air. (TX'
Ca?!ahan
C-"-)d-1:1r
Lc
Canipbel!
Gracuscr~
Leut CA
Chandler
Gnu,:
Lewis (F.
Chapman
GurtdP r_-(n:
Lit r,t 7 oa,:
Ch&ppe i+
Hal: 'OH -
L:.rr:F-tc^
Cheney
H 'TR.
lanai'. (::A'
coat.-
rn id'
Luis,
Coblr
Hans(n
l.ul.rru. r)cr ai
Colema:: ;NO'
Ti-, e..
Corntl-".
Haim,
N,a^h
Craig
Hayes (LA,
MatKa)
Declassified in Part - Sanitized Copy Approved for Release 2011/12/19: CIA-RDP89GO0643R001200010021-0
 Declassified in Part - Sanitized Copy Approved for Release 2011/12/19: CIA-RDP89GO0643R001200010021-0
November 4, 1987
CONGRESSIONAL RECORD - HOUSE H 9597
Madigan
Ravenel
Solomon
Marlenee
Ray
Spence
Marlin (NY)
Rhodes
Stangeland
Mc endless
Roberti.
Stenholm
McCollum
Rogers
Stratton
McEwen
Roth
Swmp
McGrath
Roukema
Sundquist
McMittae (NC)
Rowland (GA)
Sweeney
Meyers
Salki
Sw}ndall
Mica
Schaefer
Taur.in
Michel
Schuette
Taylor
Miller (OH,
Schu ze
Thomas (CA)
Montgomery
Sensenbrenner
Thomas (GA)
Moorhead
Shaw
Upton
Morrison (WA)
Shumway
Valentine
Myers
Shuster
Vander Jain
Nelson
84014
V uranov ich
Nichols
Skeen
Walker
Oren
Slaurhter(VA)
Whittaker
Oxley
Smith (NE)
Woll
Piwkard
Smith (TX,
Wortiey
Perri-
Smith Denny
Wylie
I?ashayan
(OR)
Young (FL)
Pickle
Stn th. Robert
Porter
(NH)
Quilien
Smith. Robert
(OR,
NOES-242
Ackerman
Po hetta
McMillen (MD)
Akaka
Foley
Mfime
Alexander
Pord (Mn
Miller (CA)
Andrews
Ford (TN)
Miller (WA)
Annunzio
Frank
Mineta
Anthony
Frost
Moakley
Applegate
Gallo
Mollohan
Aspin
Garcia
Moody
Atkins
Gaydos
Morelia
AuCotn
Ge,drnson
Morrison (CT)
Barton
Gibbons
M rarek
Bates
Gilman
Murphy
Beitenson
Ohckman
Murtha
Berman
Gonza!v .
Nag](,
Bit bray
Gordon
Natcher
Boehiert
Grandy
Neal
Boggs
Gray- (IL)
Nielson
Boland
Gray (PA)
Nowak
Bonior
Green
Dakar
Bonker
Gregg
Oberstar
Borak-
Guanni
Obey
Bosco
Hamilton
Olin,
Boucher
Harris
Owens (NY)
Boxer
Hawkins
Panetta
Brennan
Hales (IL)
Patterson
Brooks
Henry
Pets,
Brown (CA)
Hertel
Pei osi
Bruce
Horton
Penny
Bryant
Houghton
Ptpper
Bus'amante
Royer
Perkins
Card!:
Hubbard
P,tri
Carper
HuFthec
Pickett
Clarke
Jarot--
Price (II.)
Cltngeor
Jettords
Price (NC)
Coel(u
Johnon 4CT)
Pursell
Coleman (TX)
JoiGLOn (SD)
Rahal)
Cull:.--
Jon;
Ran)".]
Conti
Kar'orsk,
Regina
Conyers
Kaitenmeter
R ic!mrdson
Coop,-r
Kennedt
Rids(
Coughlin
Kenneli3
R)ualde
Courser
Kilo-(
RI)Ccl
Coyne
F. b:nsor:
Crorget;
Kt..Pt-
Rod no
Da, t- !IL)
Ko"ter
R ce
D:_:,(MI)
Kostn.ay-er
R n(
I), _ate
La' c,,:,
Rce,)enkowski
L- 'time
lame-aster
Rouiand (CT)
Ro3 bal
Din".cll
L_.:.,!,,IA)
R1, -u
Lint)
Lehmar (CA)
Sabo
Dc n(1:3
I.e rns (FL!
S.?.: ec
Dusan (ND)
Lear
nr"
sate yet
Dca ?x,
Levi
dI
Se.c;;a,
L:_rutr
Lec.nt iCA~
S..heu, r
r,w?r
Lt? (G-)
S-r.n(ider
D:: rna1!3
IA,.t
w .'!1Meder
Dt
Le. -t (.SA)
Sr),umer
F *!
LL4_^r: Thomas
s`
Ert. -'
Matt: *}
S t,or:;ki
F)-,vi,!-or-(CA)
Mart-,)
F
M.MLLn,
1..~_.
M'-
si:ax:!,ter (Nr)
MatToaie::
sti::, n ,> L
F....,.
N az u'
I.:rhpr.
McCio.>krt
Sm.tp (NJ'
~-..`
McCurdy.
Snowr
F,ELI '
h' Dade
Sc:lt:ri
Sprau
St Germain
Torricelil
Wheat
Statcgera
Towns
Whitten
8tahings
T-aficant
Williams
Stark
Trader
Wilson
Stokes
Venw
Wise
Studd.
VLseloske
Wotpe
Swift
Volkmer
Wyden
Synar
Watrtren
Yates
Talton
Watkins
Yatron
Tauk.
Web?r
Young (AK)
Torrta
Weldon
Biaggi
Gingrich
Owetu (UT)
Brown (CO,
Howard
Roemer
Carr
Jones (NC
Sharp
Clay
Kaptur
Udall
Crane
Kemp
Waxman
Daniel
Lipinski
Weise
Duncan
Lott
Gephardt
Molinari
0 2110
The Clerk announced the following
pairs:
On this vote:
Mr. Roemer for. with Mr. Gephardt
against.
Mr. Brown of Colorado for, with Ms.
Kaptur against.
Mr. Lott for. with Mr. Weiss against.
Mrs. BOXER changed her vote from
"aye" to "no".
Mr. CAMPBELL changed his vote
from "no" to "aye."
So the amendment in the nature of
a substitute was rejected.
The result of the vote was an-
nounced as above recorded.
The CHAIRMAN. The question is on
the Committee amendment in the
nature of a substitute, as amended.
The Committee amendment in the
nature of a substitute, as amended,
was agreed to.
The CHAIRMAN. Under the rule,
the Committee rises.
Accordingly the Committee rose;
and the Speaker pro tempore [Mr.
FoLEY] having assumed the chair, Mr.
GoNZALEZ, Chairman of the Commit-
tee of the Whole House on the State
of the Union. reported that that Com-
mittee, having had under consider-
ation the bill (H.R. 1212) to prevent
the denial of empioyment opportuni-
ties by prohibiting the use of lie detec-
tors by employers involved in or af-
fecting interstate commerce, pursuant
to House Resolution 295, he reported
the bi.3 back to the House with an
amendment adopted by the Cornmit-
tee of the Whole.
The SPEAKER pro tempore. Under
the rule, the previous question is or-
dered.
Is a separate vote demanded on any
amendment to the Committee amend-
ment in the nature of a substitute
adopted by the Committee of the
Whole-, If not, the question is on the
amend.7ient.
Thy arne-ndrttent w agreed to.
Tn. S-P KER pro tempore. The
is on the en ossr nent and
_..,
.
i(
.
_
thit-(L re ndinr of the b;.,".
Ti.( b v. s:_ ordered to be ene'rossed
an Ie .d i third tire, anc was read
the thi7-.'
Thi. Sr _, aKER. pre tempore. The
question is on the passace of the b'111
llxml niD van
Mr. GUNDERSON. Mr. Speaker, I
demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic
device, and there Were--ayes 254, noes
158. not voting 21, as follows:
(Roll No. 4141
AYES-254
Ackerman
Garcia
Ortiz.
Akaka
Gaydos
Owens (NY)
Alexander
Oejdenson
Panetta
Anderson
G,bbons
Pashayan
Andrews
Gilman
Pease
Annunzio
Glickman
Pelosi
Anthony
Gonzalez
Penn3
Appteyrate
Gordon
Pepper
A.spm
Gray (IL)
Perkins
Atkins
Gray (PA)
Petn
AuCoin
Green
Pickle
Bates
Gregg
Pries (IL)
Be; Jenson
(:uanni
Pn,-r .NC)
Bent try
Hamilton
N)rs, 11
Berman
Harris
(,uitleu
Becill
Hawkins
hahall
Bilbray
Hayes tier
Rangel
Boehlerk
Hayes (LAI
Regula
Dogs
Henry
Richardson
Boland
Hertel
Ridge
Boniur
Rochbrueckner
Rinaldo
Bonker
Horton
Ritter
Borski
Houghton
Robinson
Bozo
Royer
Rodi no
Bow-her
Hubbard
Roe
Bo W ter
Hughes
Rose
Boxer
Jacobs
Rostenkowski
Brennan
Jeffords
Rowland ( CT)
Brooks
Johnson (CT)
Roy'bal
Broomfield
Johnson (SD)
Russo
Brown (CA)
Jontz
Sabo
Bruce
Kanjorskl
Sat age
Bryant
Kast.enmeier
Sawyer
Bust=ante
Kennedy
Saxton
Byron
Kennelly
Scheuer
Campbell
Kildee
Schneider
Carden
Kietzka
Schroeder
Carper
Kuper
Schuette
Clarke
Kostmayer
Shays
Clinger
LaFalce
Sikorski
Coelho
Iar)cast er
Skaggs
Coleman (TX)
Lantos
Skelton
Collins
Leach (IA)
Slattery
Conic
Lehman (CA)
Slaughter (NY)
Conyers
Lehman (FL)
Smith (FL)
Cooper
Leland
Smith (IA)
Coughlin
Levin (Ml I
Smith (NJ)
Courser
Levine (CA'
Snows
Corns
Lewis (GA)
Solari
Cra,Met t
Lloyd
St Germain
Davaa (IL)
Lowry (WA)
Staggers
Davis (MI)
Laken. Thomas
Stallings
DeFazio
Manton
Stark.
Lie (lams
Markey
StUket.
D:cF=
Martui (IL)
Stratton
Dtnrell
Matt inet
Studds
Mstsu,
Sa ift
DorutsIly
Msvroules
8) riar
L o'can i ND)
Mt-_t o
1suee
Dc,ede
McGcnkey
Ta wiles
Dot. net.
McC:rdt
I orres
D.rbr:
Torricelli
Dyer
McHw-!.
'I owns
MLM.lten (MD.
T ra.`icant
M'umt
Traxter
Far
N. :'le.' (CAI
Upton
E.Aar'
Malt r (RA,
Vander Jag(
Ear arm. (CA)
Mine t s
v470)
Leath (TX)
Smith (NE)
Ccrnbcs;
Lent
Srnkh (TX)
Cray.
Lewis (CA)
Smith. Denny
Danneme>er
Lewis (FL)
(OP.?
Darden
Lightfoot
Smith. Robert
Dauc
Livingston
(NH)
de la Garza
Lowery (CA)
Smith. Robert
Delay
Luian
(OR)
Derrick
Lukens. Donald
Solomon
De?Wme
Lungren
Spence
Dickinson
Mack
Sprats
DioGuard.
MacKay
Stangeland
Dornan (CA)
Madigan
Siennoim
Dreyer
Marlenee
Stump
Edwards (OK)
Martin (NY)
Sundquist
Emerson
McCandless
Sweeney
Fawe11
McCollum
Sw:ndall
F)elds
McEven
Talon
Frenzel
McGrath
Taylor
Frost
McMIPar. (NC)
Thomas (CAt
Galiegly
Meyers
Thomas (GA)
Gekas
Mica
Val?-none
Gingrich
Michel
Vucanovich
Goodling.
Miller (OH)
Walker
Giad;s)n
Montgomery
Weldon
Grandy
Moorhead
Whittaker
Grant
Morrison (WA)
Wolf
Gunderson
Myers
Wortley
Hall (OH)
Nelson
Wylie
all (TX)
Nichols
Young (FL)
ammerschmidt Oxley
NOT VOTING-21
iapgi
Gephardt
Molinari
l:rows (CO-
Howard
Owens (LIT)
Carr
Jones INC)
Roemer
ClasL
Kaptur
Schumer
Crane
Kemp
Sharp
Daniel
Lipinski
Uds.il
Duncan
Lott
Waxman
0 2125
The Clerk announced the following
,sirs
On this vote:
Mr. Gephardt for, with Mr. Brow of Col-
orado against
Mr. Kemp for, with Mr. Crane against.
Ms. Kaptur for. with Mr. Lott against.
So the bill was passed.
The result of the vote was an-
nounced as above recorded.
A motion to reconsider was laid on
the table.
1
AUTHORIZING THE CLERK TO
MAKE CORRECTIONS IN THE
ENGROSSMENT OF H.R. 1212,
EMPLOYEE POLYGRAPH PRO-
TECTION ACT
Mr. MARTINEZ. Mr. Speaker, I ask
unanimous consent that in the en-
grossment of the bill, the Clerk be au-
thorized to make corrections in section
numbers, punctuation, and cross-refer-
ences and to make such other techni-
cal and conforming changes as may be
necessary to reflect the actions of the
House in amending the bill, H.R. 1212,
the Employee Polygraph Protection
Act.
The SPEAKER pro tempore (Mr.
DURBIN). Is there objection to the re-
quest of the gentleman from Califor-
nia?
There was no objection.
GENERAL LEAVE
Mr. MARTINEZ. Mr. Speaker, I ask
unanimous consent that all Members
may have 5 legislative days in which to
revise and extend their remarks on
H.R. 1212, the Employee Polygraph
Protection Act, the bill just passed.
The SPEAKER pro tempore. Is
there objection to the request of the
gentleman from California?
There was no object ion.
REPORT ON RESOLUTION PRO-
VIDING FOR CONSIDERATION
OF HOUSE JOINT RESOLUTION
394, FURTHER CONTINUING AP-
PROPRIATIONS, FISCAL YEAR
1988
Mr. PEPPER, from the Committee
on Rules, submitted a privileged
report (Rept. No. 100-419) on the reso-
lution (H. Res. 302) providing for the
consideration of the joint resolution
(H.J. Res. 394) making further con-
tinuing appropriations for the fiscal
year 1988, and for other purposes.
which was referred to the House Cal-
endar and ordered to be printed.
REPORT ON RESOLUTION PRO-
VIDING FOR CONSIDERATION
OF H.R. 435. UNIFORM POLL
CLOSING TIME FOR PRESIDEN-
TIAL ELECTIONS
Mr. PEPPER, from the Committee
on Rules submitted a privileged report
(Rept. No. 100-240) on the resolution
(H. Res. 303) providing for the consid-
eration of the bill (H.R. 435) to amend
title 3, United States Code, and the
Uniform Time Act of 1966 to establish
a single poll closing time in the conti-
nental United States for Presidential
general elections, which was referred
to the House Calendar and ordered to
be printed.
RESIGNATION AS MEMBER OF
COMMITTEE ON GOVERNMENT
OPERATIONS
The SPEAKER pro tempore laid
before the House the following resig-
nation as a member of the Committee
on Government Operations:
HOUSE OF REPRESENTATIVES.
TT"cshington. DC, November 4, 1987.
11on. JIM Water::.
Speaker of the House, H-204 Capitol, Wash
ington. DC.
DEAR MR. SPLAKER: Effective today, I
tender my resignation from the House Com-
mittee or. Government Operations.
with kind regards. I am
Sincerely,
P R3IE I O?NYV,
xefnber Qf Congress.
The SPEAKER Pro tempore. With.
out objection, the resignation is ac-
cepted.
There was no objection.
RESIGNATION AS MEMBER OF
COMMITTEE ON MERCHANT
MARINE AND FISHERIES
The SPEAKER pro tempore laid
before the House the following resig-
nation as a member of the Committee
on Merchant Marine and Fisheries.
HOUSE OF REPRESENTATIVES,
Washington, DC, November 4, 1987.
Hon. JIM WRIGHT,
Speaker of the House, The Capitol. H-204,
Washington, DC.
DEAR MR. SPEAKER: I am writing to inform
you that I hereby resign from the House
Committee on Merchant Marine and Fisher-
ies effective this date.
Sincerely,
JOSEPH J. DIOGUARDI,
Member of Congress.
The SPEAKER pro tempore. With-
out objection, the resignation is ac-
cepted.
There was no objection.
ELECTION AS MEMBERS TO CER-
TAIN STANDING COMMITTEES
OF THE HOUSE
Mr. KOBLE. Mr. Speaker, by direc-
tion of the Republican Conference and
on behalf of the Republican leader I
offer a privileged resolution (H. Res.
304) and ask for its immediate consid-
eration.
The Clerk read the resolution, as fol-
lows:
H. REs. 304
Resolved, That the following named Mem-
bers be. and they were hereby elected to the
following standing committees of the House
of Representatives:
Committee on Merchant Marine and Fish-
eries: Mr. Konnyu of California.
Committee or, Government Operations:
Mr. Shays of Connecticut.
Committee on Science. Space and Tech-
nology: Mr. Shays of Connecticut.
The resolution was agreed to.
A motion to reconsider was laid on
the table.
VACATING OF APPOINTMENT OF
ADDITIONAL CONFEREE ON
H.R. 2713. DISTRICT OF COLUM-
BIA APPROPRIATIONS, 1988
The SPEAKER pro tempore. With-
out objection, the Chair's prior ap-
pointment today of Mr. WATKINS of
Oklahoma as a conferee on the bill
H.R. 2713 is vacated.
There was no objection.
The Clerk will notify the Senate of
the change in conferees.
Declassified in Part - Sanitized Copy Approved for Release 2011/12/19: CIA-RDP89GO0643R001200010021-0