April 7, 2004
Re: Use of polygraph and personal information in police applicant interviews
Dear Police Captain,
In the Legal Issues class I taught in your City, you asked about the appropriate areas of inquiry
when interviewing applicants for police department positions, specifically with regard to
polygraph testing. It is my understanding that personal questions involving marital status and
family situations may be asked at the beginning of the polygraph testing as “control questions”
that determine how an applicant’s response is calibrated and test results are interpreted.
Following is my legal research in this area, and my suggestions for compliance with the law.
Tennessee enacted the Polygraph Examiners Act in 1978, to govern the persons who conduct lie
detector tests. One provision of the Act, T.C.A. ' 62-27-123, prohibits an examiner from asking
“any question concerning a subject’s sexual behavior or orientation in a polygraph, unless such
matter is relevant to the examination. Before proceeding with such examination, the examiner
must obtain the subject’s written permission, and such permission shall be made a part of the test
record...” Prior to an amendment in 2003, the Act contained a requirement that if the examinee
is an employment applicant, that he be provided with a list of questions to be asked and further
shown a list of those areas of inquiry which the examination will not cover. T.C.A. ' 62-27-125.
Those requirements have been deleted by the 2003 amendment to the Act, however, and there
are no other restrictions placed on the subject matter of the examination in the Act itself. The
law does prohibit any employer from taking “any personnel action based solely upon the results
of a polygraph examination.” T.C.A. 62-27-128.
We must look to court opinions to determine how the Equal Opportunity in Employment Act,
The Civil Rights Act and other anti-discrimination statutes impact the questions asked of
applicants during polygraph testing.
The United States Supreme Court has ruled that the hiring process, and inquiries made by the
employer into areas of information which are impermissible under the law, is a legal job-related
process if the hiring criterion directly relate to a prospective employee’s ability to perform the job
effectively. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 1005, 108 S.Ct. 2777, 2794, 101
L.Ed.2d 827 (1987). In order to show job-relatedness, the employer does not need to show that
the practice is absolutely necessary or indispensable to the operation of the business, but rather,
that the practice substantially promotes the efficient operation of the business. Chrisner v.
Complete Auto Transit, Inc., 645 F.2d 1251, 1262 (6th Cir. 1981).
Public employers are given greater latitude in this area. In Tye v. City of Cincinnati, 794 F.Supp.
827 (S.D. Ohio 1992), the plaintiff was an unsuccessful applicant for the position of firefighter
and complained that he was discriminated against when the city asked about his arrest record
during a polygraph test, and such record was used as the basis for denying him employment. The
Court found the inquiry into the applicant’s arrest record to be job-related, stating:
We refuse to hold the City to a higher standard than we would any other employer. In
fact, a public employer hiring a firefighter is held to a lighter burden in demonstrating
that its employment criteria is job-related, because of the potential risk to public safety of
hiring incompetent firefighters....The uncontradicted testimony at trial was that the
polygraph examination intimidated many applicants to reveal further information about
their background. Certainly, some applicants may have consistently lied throughout the
hiring process, as Dr. Cranny noted. However, the polygraph examination did, on
average, help to reveal more information about candidates, which allowed the City to
make a more informed choice about its hiring decisions. (Emphasis added)
Tye at 833-834. The Ohio federal court that handed down the ruling is in the same appellate
jurisdiction as Tennessee federal courts.
The Sixth Circuit Court of Appeals, which has jurisdiction over Tennessee federal courts, ruled
that polygraph testing and questions asked of an applicant were appropriate in Young v. City of
Louisville, 7 F.3f 237, 1993 WL 337542 (6th Cir.). The plaintiff was denied employment by the
police department after taking a polygraph examination, during which time he was asked about
his affiliation with the Ku Klux Klan, about criminal conduct and personal characteristics. He
sued the city claiming that his freedom of association was violated, and that his affiliation with
the KKK was the reason he was denied employment. The city claimed that he was denied
employment due to the fact he was fired from another police department. The Court found that
either reason for the city’s refusal to hire the plaintiff was valid, and that use of the polygraph
was appropriate.
It appears from these cases that polygraph examinations of applicants for law enforcement
positions are legal, even if personal information is requested. This is based on the need for
police departments to determine an applicant’s truthfulness and fitness for duty in public safety
positions. There are some cases, however, that demonstrate how information received during
polygraph examinations may be abused, and result in violation of anti-discrimination statutes.
One such case is Thorne v. City of Segundo, 726 F.2d 459 (9th Cir., 1983), in which a female
police applicant was able to prove sex-stereotyping and unequal job standards when her
responses to certain questions asked in a polygraph were held against her and similar questions
were not asked of male applicants. The plaintiff passed the oral and written test, an agility test
and the mental evaluation during the application process, and was ranked the second highest
applicant until she took a polygraph examination. On one application form, the plaintiff reported
that she had been hospitalized for a “female problem,” and the examiner was instructed to inquire
about the matter. In the test, plaintiff revealed that she had suffered a miscarriage and was then
asked the identity of the father of the child. The plaintiff was reluctant to answer the question,
but finally revealed the father was a married officer currently working for the police department.
The plaintiff further testified that she was asked a large number of questions about her sexual
history, including when she first had sex and with whom. She was subsequently disqualified as a
candidate for hiring. The officers who participated in the decision admitted that her sexual
history and the affair were factors in the decision. No disciplinary action was taken against the
male officer with whom she had the affair. The court found for the plaintiff, and made the
following statement which is instructive:
We do not hold that the City is prohibited by the constitution from questioning or
considering the sexual morality of its employees. If the City chooses to regulate its
employees in this area or to set standards for job applicants it may do so only through
regulations carefully tailored to meet the City’s needs. The evidence established here that
the City had no policy. Rather, Johnson testified that he simply applied the moral
standards of the general society, as he saw them.
Thorne at 470. This case was decided by the Ninth Circuit Court of Appeals, which does not
have jurisdiction over Tennessee. Nonetheless, in my opinion, the Tennessee courts would
render a similar ruling if facts such as these came before the court.
If the polygraph is administered as a test of an applicant’s truthfulness and fitness for duty, and is
only used for such purposes, then the testing is legal. If the applicant is questioned about
personal matters, such as sexual history and religious affiliation, and the information received
becomes a factor in the employment decision, then the department would be in violation of the
law. Responses which reveal a criminal record or drug abuse would clearly provide information
upon which an applicant may be denied employment, as such facts render an applicant unfit for
duty. If the area of inquiry does not concern public safety, truthfulness or the potential criminal
activities of an applicant, however, the information received cannot form the basis for denying
employment. Police departments may use polygraph testing of applicants to determine
truthfulness and fitness for duty, not to expose personal information upon which an employment
decision will be made.
I hope this information is helpful.
Thank you for consulting with MTAS.
Sincerely,
Melissa A. Ashburn
Legal Consultant