CONTENTS Bailey, F. Lee, attorney and polygraph advocate, Boston, MA. Bolton, John R., Assistant Attorney General, U.S. Department of Justice, Braxton, Mary C., Toano, VA, accompanied by Willafay McKenna, Esq.; and Page 133 Prepared statement of Mr. Wynn Hecht, Hon. Chic, a U.S. Senator from the State of Nevada; Hon. Pat Wil- liams, Member of Congress, State of Montana, and Hon. Stewart McKinney, Saxe, Dr. Leonard, associate professor of psychology, Boston University, Boston, MA; and Lawrence W. Talley, chairman, Georgia State Board of Markman, Steve, Assistant Attorney General for Legal Policy, U.S. Depart- Raskin, David C., Ph.D., professor of psychology, University of Utah, Salt Scheve, William, Jr., president, American Polygraph Association, Washing- ton, DC; Herbert R. Matthews, American Trucking Associations, Key Largo, FL; Donald Zale, chairman of the board, Zale Corp., on behalf of Jewelers of America, American Retail Federation, and National Retail Merchants Asso- ciation, Irving, TX; and Robert A. Ostrovsky, Gaming Industry Association of Nevada, Inc., and Nevada Resort Association, Reno, NV.... ADDITIONAL MATERIAL Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, from: Matthew, Herbert R., president, Benton Bros. Film Express, Inc., 19 Responses of Mr. Markman to questions submitted by Senator Quayle ........ Responses of Dr. Raskin to questions submitted by Senator Quayle. Responses of Mr. Wynn to questions submitted by Senator Quayle. Responses of Mr. Bailey to questions submitted by Senator Quayle.. Responses of Dr. Saxe to questions submitted by Senator Quayle. Responses of Mr. Scheve to questions submitted by Senator Quayle.. POLYGRAPH PROTECTION ACT OF 1985 WEDNESDAY, APRIL 23, 1986 U.S. SENATE, COMMITTEE ON LABOR AND HUMAN RESOURCES, Washington, DC. The committee convened, pursuant to notice, at 9:37 a.m., in room SD-430, Dirksen Senate Office Building, Senator Orrin Hatch (chairman) presiding. Present: Senators Hatch, Thurmond, Nickles, Kennedy, Wallop, Kerry, Simon, Dodd, Grassley, and Pell. OPENING STATEMENT OF SENATOR HATCH The CHAIRMAN. Today's hearing of the Committee on Labor and Human Resources will examine S. 1815, the Polygraph Protection Act, which Senator Kennedy and I introduced over here in the Senate, and we have the distinguished House leaders with us here today as well. The bill would provide needed protection, in our opinion, to working men and women throughout this country by barring the use of lie detectors in the private sector. Today, polygraph tests are quickly becoming the rule, not the exception. Over 2 million tests are given each year to employees in fast food stores, to bank tellers and miners, to grocery store clerks and factory workers, to truck drivers and exterminators, among others. But there is no conclusive proof that polygraph tests work. According to the Office of Technology Assessment, the Board of which both Senator Kennedy and I sit on: There is very little research or scientific evidence to establish polygraph test validity in screening situations, whether they be preemployment, preclearance, periodic or aperiodic, random or dragnet. The American Psychological Association has stated that: The scientific evidence is still unsatisfactory for the validity of psychophysiological indicators to infer deceptive behavior. Such evidence is particularly poor concerning polygraph use in employment screening. Nonetheless, each day Americans are being branded by the 15minute polygraph special, by ignorant and malicious examiners, and by employers who use the lie detector as a cover for improper acts. Critics of the bill claim they have never heard of a single person who has been victimized by a polygraph. They should meet Patricia DeFiore of Dix Hills, NY, who worked for 8 years at Fortunoffs, a department store. She was fired after refusing to take a polygraph exam, even though her supervisor said he knew she was not guilty of any theft. They should meet Dr. Bernard Schermann of Salinas, CA. He was a respected manager of a jewelry company, but was fired after flunking a lie detector test. Company officials admitted to him that they knew he had done nothing wrong, but felt they needed to use his failure to set an example for others. They should listen to Mary Braxton, who will testify today. Mary will explain how an examiner can coerce a statement from an employee, what it is like to tell your children you have been fired because of a 15-minute polygraph examination, and how hollow victory can be, even though you may win a judgment for $21,000. In each of these instances and many more which have been submitted to our committee, the employer chose to ignore the real human experience of years of dedicated and loyal service and relied instead on the findings of a machine. Employers should be able to hire honest, dependable and qualified employees and should be able to undertake reasonable measures to avoid or correct employee theft or chronic drug use. This is why the witnesses today represent a cross-section of opinions about the legislation pending before our committee. We expect to receive testimony which will address, among other things, three basic issues. First, can the polygraph examination be accurate as it is currently being used in the private sector? Second, why have businesses been able to operate efficiently and economically in States where polygraph exams are already prohibited if the polygraph is so critical to the employment process? And finally, how can this committee address legitimate concerns raised by specific businesses or industries without jeopardizing the rights of employees? As we seek to resolve these difficult questions, I hope we keep in mind the fact that in this country, an indicted criminal suspect cannot be forced to take a lie detector test. And surely the American worker deserves comparable protection in the eyes of many people. Now, I have to admit this is a very difficult issue for me as chairman of this committee. I think there are two sides to this issue, and I have chosen thus far to come down on this side of banning polygraph examinations. On the other hand, I have met with people who say that without the polygraph examination, they may have very grave difficulties, and there may be safety concerns that really have to be considered. One set of businessmen came in and said they do not even rely on the polygraph examination, that the mere fact that people are attached to the machine causes them to tell the truth, and they are able to find the heavy drug users and others who have committed felonies and other acts of theft and deception. That certainly appeals to a lot of people in the business world and a lot of people who are examining this issue. On the other hand, we have evidence that there are at least 50,000 people in our society each year who are branded as liars by inadequate and improper polygraph examinations. So we are concerned about that, and that is why we are looking into this today. We are happy to have all of our witnesses here with us, and with that, I will turn to Senator Kennedy. OPENING STATEMENT OF SENATOR KENNEDY Senator KENNEDY. Thank you very much, Mr. Chairman. I express our appreciation for holding these hearings this morning. As you pointed out, what we are basically talking about is a condition of employment. That is the issue that is before our committee this morning, and whether the use of these various devices are sufficiently reliable to be able to be used in order to exclude individuals who desire such employment. The legislation which you and I have drafted meets, I think, some of the very important concerns dealing with vital security issues. I think we have addressed those in the course of the development of the legislation. I think all of us who are supporting this legislation have been impressed by the studies that have been done, in the most recent time, as you mentioned, by the Office of Technology Assessment, that has raised the most grievous questions about the degree of reliability of these kinds of mechanisms. And what we have seen is in the workplace across this country, a dramatic escalation of the use of these various devices, with the kinds of injustices which you have outlined here. So this is an important issue. We know the great interest that this has among working men and women across this country and the importance of protecting their rights, and I look forward to the witnesses that we have this morning and express our appreciation from this side for commencing these hearings today. [The prepared statement of Senator Kennedy follows:] PREPARED STATEMENT OF Senator KennEDY Senator KENNEDY. I want to commend the Chairman for introducing this important legislation, and for holding these hearings. The use and abuse of these so-called "lie-detectors" has reached truly alarming proportions. Over two million of these tests are administered annually. The scientific evidence is overwhelming, the conclusions clear: There is no physiological indicia capable of distinguishing truth from deception. We have known this for over 20 years. A House Government Operations Subcommittee concluded two decades ago that, and I quote: There is no lie detector, neither machine nor human. People have been deceived by a myth that a metal box in the hands of an investigator can detect truth from deception. One of the root flaws of these types of tests was probably best summed up by former Senator Sam Ervin, who said: A lie detector test to innocent citizens simply wanting a job reverses our cherished presumption of innocence. If an employee refuses to submit to the text, he is automatically guilty. If he submits to the test, he is faced with the burden of proving his innocence. Proving his or her innocence, I might add, with devices which clearly cannot detect either truth or deception. These tests do measure stress-but that stress can be caused by fear, anger, anxiety, hate, embarassment, nervousness, fear of being fired-or lying. Neither the examiner nor the machine can determine what triggered the stressful reaction. I look forward to the testimony of today's witnesses, and I especially look forward to working closely together with the chairman and the other distinguished members of this committee in fashioning and moving S. 1815 out of committee, and into law. The CHAIRMAN. Thank you, Senator Kennedy. We will turn to Senator Nickles at this time. Senator NICKLES. Mr. Chairman, thank you. |