Ch14 Testing.docx

Testing Chapter Objective: The purpose of this chapter is to identify for students the different types of employment testing, their purposes, their strengths and weaknesses and the means by which each type of testing may be regulated. The relevance of testing to cases of disparate treatment and disparate impact are also addressed. Scenarios - Points for discussion Scenario One: Depending on the type of store involved in these types of issues, in most cases the Federal Employee Polygraph Protection Act applies to protect employees from the harmful effects of polygraphs, which are renowned to have a large number of false negatives and false positives (does not apply to public sector employees). The act would apply to a food store. Employers are not allowed to require or to request a polygraph test of an employee. However, an employee may voluntarily suggest and submit to the exam in order to further support a claim of innocence. A private employer may only test if four conditions exist: First, the test must be administered in connection with a workplace theft or incident investigation. Second, the employee must have had reasonable access to the missing property or loss incurred. Third, the employer must have reasonable suspicion that this particular employee was involved. Fourth, the employee must have been given written information regarding the basis for the investigation and for the suspicion that she or he is involved. This is called the Investigation Exemption. Accordingly, Shefali may only test those individual employees who had access to the funds missing; she may only test those employees for whom she has a reasonable suspicion; and she must give the tested employee written information regarding that suspicion. Scenario Two: The purpose of this question is to discuss the validity of this type of test. This test would be considered under the question of content validity. Review that section with the students then return to this question. Scenarion Three: The Drug free Workplace Act applies only to Federal employees. Under the Act, employers are allowed to conduct pre-employment screening for drug and alcohol use and abuse as part of a rehabilitation program. Employee assistance programs are also encouraged. Testing however will be subject to 4th Amendment controls; i.e. the testing may not constitute an unreasonable search or seizure. In order to maintain reasonableness, the employer must distribute a policy statement explaining its stand against drug use. See National Treasury Workers v. Von Raab. Private sector drug testing is not restricted except by common law invasion of privacy concerns and some state law. LECTURE NOTES Background Pre-employment testing can help locate ideal employees, but may also land the employer in court. Managing the risk created by use of pre-employment tests requires an understanding of the types of pre-employment tests used, the benefits they offer, and their possible costs, beyond the monetary expenditures involved in testing. Given the incidents of resume fraud (a recent survey by Colorado-based Avert, Inc. of 2.6 million job applications revealed that 44 percent of the resumes contained lies) [fn. See Jeffrey Kluger, “Pumping Up Your Past,” Time, June 10, 2002, p. 41]. A. Pre-employment testing began in the 1950s as a response to the inefficiencies that were purportedly present in American business. Since that time, pre-employment testing has been considered a necessity to the selection process. B. Employers Believed that they would be more competitive if they could test applicants in order to "weed out" those who failed the tests. On the other hand, many of these tests were not validated and did not actually test for the characteristic sought to be removed from the work place. C. Testing in the work place has taken two forms: 1. Tests for the purpose of finding the best individual for a position. a. Such as achievement tests and personality indicators. b. The problems with this type of eligibility test is that while it may appear facially neutral, it may have a disparate impact upon a protected class. c. Pursuant to the Civil Rights Act of 1964, where adverse impact has been shown, the test may still be used if it has been professionally developed and validated (discussed below). d. If used properly however, a validated test will not only determine for the employer the most appropriate applicant for the position, but may also reduce the chance for discriminatory choices based on conscious or subconscious employer bias. 2. Tests to ensure that the individual is free of difficulties. a. Such as tests for drug and alcohol abuse, and other impairments which may limit an applicant's ability to perform. b. The problem of addiction has permeated almost every facet of our lives, including the work place. As technology has improved, impairment tests have become more efficient, less expensive, and therefore more prevalent. 3. In an effort to protect individual employee rights, courts do a balancing test in order to determine the legality of ineligibility testing. At some point, an individual’s privacy interests trumpet an employer’s efficiency concerns. That point is when the invasion of privacy is a substantially and highly offensive to the reasonable person. The courts weigh the conflicting interest of the employer in securing a problem- or substance-free work place against the privacy rights of the employee and protections against self-incrimination. As many of the protections afforded to the employee derive from the Constitution (Fourth Amendment protection against unreasonable searches and seizures, Fifth Amendment right against self-incrimination, and Fifth and Fourteenth Amendments protections of due process), generally government employees and contractors receive greater protection in these areas than do employees in the private sector. State constitutions can be a source of protection as well. Case Example: NormanBloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260 (9th Cir. 1998) Issue: Whether a clerical or administrative worker who undergoes a general employee health examination may, without his knowledge, be tested for highly private and sensitive medical and genetic information such as syphilis, sickle cell trait, and pregnancy. Facts: Employees of a research facility operated by Lawrence Berkeley Laboratory (LBL) brought an action against the facility alleging noncensensual testing for sensitive medical information pursuant to general employee health examinations in violation of Title VII, ADA, and the right to privacy guaranteed by the United States Constitution. The employees claim that the defendant tested, without their knowledge, blood and urine for intimate medical conditions, namely, syphilis, sickle cell trait, and pregnancy during the course of their mandatory employment entrance exam. They also claim that only black employees were tested for sickle cell trait and assert the obvious fact that only female employees were tested for pregnancy. They contend that they did not discover that the disputed tests had been conducted until approximately January 1995, and deny that they observed any signs indicating that such tests would be performed. LBL is a research facility jointly operated by state and federal agencies. LBL claims that the plaintiffs were informed of the tests conducted and moved for a motion to dismiss and summary judgment. The district court granted these motions and the plaintiffs appealed. Decision: Because material and disputed issues of fact exist with respect to whether reasonable persons in plaintiffs' position would have had reason to know that the tests were being performed, and because the tests were a separate and more invasive intrusion into their privacy than the aspects of the examination to which they did consent, the district court erred in granting summary judgment on statute of limitations grounds with respect to the Title VII claims and the federal and state constitutional privacy claims. The district court also erred in dismissing the federal and state constitutional privacy claims and the Title VII claims on the merits. The district court's dismissal of the ADA claims was proper. Case Questions 1. The court did not decided the final issues but only remanded it back to the trial court. If you were the judge, based on the facts presented, how would you decided the case? Class discussion 2. Would it make a difference if the plaintiffs consented to the testing? If the plaintiffs consented, they could not argue their right of privacy was violated, as they were aware that the results would be given to the employer. However, their Title VII claim could still be viable. 3. Do you think the fact that these tests were not being conducted after 1995 had any affect on the court's decision? Why or why not? Should it? If a defendant takes preventative measures, their actions may be considered in actions against them for the wrongful acts. LECTURE NOTES II. Legality of Eligibility Testing A. Eligibility testing comprises those tests which an employer administers in order to ensure that the potential employee is capable and qualified to perform the requirements of the position. 1. These tests may include intelligence tests, tests of physical stamina, and eye exams, and basically test for levels or achievement or aptitude, and/or the presence of certain personality traits. 2. Tests for ineligibility, on the other hand, test for disqualifying factors, such as drug and alcohol tests, polygraphs and HIV testing. Lecture Note: Ask students what types of tests they may have been subject to in the course of their employment histories? Do they think of the traditional lunch date during an interview as a test? For what positions might this more likely be considered a test than others? Are these tests to which your students are subject more eligibility tests or ineligibility tests? B. Title VII Implications: Certain tests may in their implementation have a disparate impact upon members of a protected class. For example, an employer's test for English language competency would have an adverse impact on individuals of non-English speaking origin. Where discrimination on the basis of national origin has been shown, the employer may continue to use the test only where it can establish that the requirement is a bone fide occupational qualification. 1. Title VII specifically exempts professionally developed employment tests of eligibility from disparate impact claims of discrimination, as long as the test is not designed, intended or used to discriminate on the basis of membership in a protected class. 2. Therefore, if a test has been validated according to strict validation standards, Title VII does not prohibit its use, even where disparate impact is present. 3. In order for an eligibility test to be legally validated as an effective gauge of performance, an employer must show that the test is a business necessity, as well as predictive of job performance. In other words, a test for intelligence must actually test intelligence, and intelligence but be necessary for adequate performance of the job in question. 4. Moreover, even where these two requirements have been satisfied, the test may still be challenged if there exists a less discriminatory alternative. 5. In order to satisfy the first requirement that the test is a business necessity, the employer must show that the quality which is measured by the test is a bona fide occupational qualification necessary to adequate performance in the position. 6. In order to satisfy the second requirement that the test examines that which it purports to examine, the employer must show that the test is valid, that it measures what it purports to measure and measures it accurately. A job applicant or employee can show adverse affects by different methods but the most common approach is the “applicants-statistics” approach. The approach compares the percentage of minority applicants successfully passing a personality or aptitude test to the percentage of majority of applicants. C. Test Validity Uniform Guidelines on Employee Selection Procedures 1. Where a selection test has been shown to have an adverse impact on a protected class the Guidelines direct that the test be validated. 2. The Guidelines identify different forms of test validation; the choice of validation strategy depends upon the type of inference the use wishes to draw from the test scores. The guidelines define an adverse impact on a protected class as any procedure which has a selection rate for any one group of less than 80% of the selection rate of the group with the highest rate (i.e. the "Four-Fifths Rule"). a. Criterion Related Validation. The most traditional type of validating a test is criterion related/empirical statistical validity. The test must be shown to accurately predict job performance as evidenced by the ability to do the job. 1) This form of validation collects data relating to job performance from a simulated exercise, then creates statistical relationships between measures of job performance and test scores. 2) The "criterion" is the performance score that one receives which says how well you did during the simulation. 3) The guidelines explain that the criterion on which the test is based may include measures other than work proficiency, such as training time, supervisory ratings, regularity of attendance and tenure. 4) Whatever criteria are used, they must represent major or critical work behaviors as revealed by careful job analyses. 5) In connection with criterion-based validation, it is important that the employer identify the proper criteria to be measured, identify the proper measurement, and establish a significant level of correlation between criterion measurement and job performance. b. Content Validation. A test which has content validity is one which specifically tests for those skills required by the specific position. 1) To be content valid, a test measuring a skill or ability should either closely approximate an observable work behavior, or its product should closely approximate an observable work product. 2) The closer the content and context of the test are to work samples or behaviors, the stronger the basis for content validity. The less the test resembles the work situation, the less likely the test is to be considered valid. 3) Contrary to criterion validity which attempts to predict performance, a test which is content valid specifically measures performance of certain position requirements. c. Construct Validation. This form considers the psychological make-up of the applicant and compares it to those traits necessary for adequate job performance. 1) Specific traits necessary for each position are identified through in depth research and analysis. One such trait may be the ability to work well as a team member. 2) Forms of construct valid tests may include personality or behavior examinations. 3) The main issue in connection with construct validity is not whether the test measures a specific construct, but instead whether that construct is predictive of or important to job performance. Subgroup Norming. The practice of adjusting testing to make scores equivalent across subgroup populations. Traditionally, the EEOC has required that a test must not only be valid for the overall population to be tested, but also must be valid for each separate minority subgroup. In the past, this goal was achieved through subgroup norming or “race norming.” The Civil Rights Act of 1991 added an additional provision to Title VII which prohibits employers from adjusting or altering test scores on the basis of membership in a protected class, and from using different cutoff scores on tests on that basis. Therefore, race "norming" that allows for (or required) the use of different standards and measurements on the basis of race, gender, religion, or national origin is no longer legal, and the portion of the Guidelines which permitted employers to use different cutoff scores for certain minorities is now invalid. 3) The Uniform Guidelines on Employee Selection Procedures also require that, where there is evidence of an adverse impact, employers of 100 or more employees must maintain specific records in order to ascertain the validity of tests and their impact on various populations. * See Box 14-3 d. Job-related Requirement. In addition to test validation, an employer must show that the specific trait for which the applicant is being tested is a bona fide occupational qualification. Case Example: Griggs v. Duke Power Co., 401 U.S. 424 (1971) Issue: Whether Duke Power's requirement of a certain level of education was sufficiently related to job performance to sustain a finding of its disparate impact? Facts: Duke Power Company required that its employees either have a high school diploma or pass an intelligence test in order to continue employment or to transfer positions at the company. Section 703(h) of Title VII allows the use of a professionally developed ability test, as long as the test is not designed, intended or used to discriminate. This requirement, however, operated to exclude African American workers from positions at Duke Power. The court found that if an employment practice that has a disparate impact on a protected class cannot be shown to be related to job performance, that practice is prohibited, notwithstanding the employer's lack of discriminatory intent. Decision: The court evaluated the objective of Congress in the enactment of Title VII and found that it was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. What is required by Congress is the removal of artificial, arbitrary and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. The court found that neither the high school completion requirement nor the general intelligence test was shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job performance ability. The evidence, however, shows that employees who have not completed high school or taken the tests have continued to perform satisfactorily and make progress in departments for which the high school and test criteria are now used. The facts of this case demonstrate the inadequacy of broad and general testing devices as well as the infirmity of using diplomas or degrees as fixed measures of capability. Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract. Case Questions 1. What did the court mean by "a subjective test of the employer's intent?" How would this be different from an objective test? A subjective test would seek to discover what the employer was actually intending while the objective test seeks to determine what a reasonable person would consider the employer to be intending. The difference is that, whether or not the employer actually intended to discriminate, if it appears that the employer discriminated then the objective test would find that indeed intent was present. 2. If Duke Power argued that the diploma requirement or intelligence test was a business necessity, how do you think they could have shown this? Duke would have had to show that, in order to perform this position, the employee must have graduated from a certain level of education or have a certain level of intelligence. It may have been able to do this by showing that individuals without this requirement are unable to perform or by showing that the responsibilities of the job are such that an individual without that level of intelligence is not able to perform them. 3. Would they have been successful in this showing? Given the job responsibilities in this case, it appears unlikely. Case Example: Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) Issue: Whether the tests used by the employer were valid tests for the jobs for which they were used and job-related? Facts: Respondents in this case were a number of African American employees of Albemarle Paper Company. They complained that the plant's employment testing program had a disparate impact on African Americans and served to lock African American employees in the lower paying job classifications. The testing program required applicants for employment in skilled labor positions to have a high school diploma and to pass two tests, the Revised Beta Examination (allegedly a measure of nonverbal intelligence) and the Wonderlic Personnel Test (allegedly a measure of verbal facility). The Supreme Court found that there was inadequate validation of the tests and that they may not be shown to be job related. Decision: The court explained the rules of testing as set forth by Griggs: Title VII forbids the use of employment tests that are discriminatory in effect unless the employer meets "the burden of showing that any given requirement has a manifest relationship to the employment in question." This burden arises, of course, only after the complaining party or class has made out a prima facie case of discrimination, i.e. has shown that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants. If an employer does then meet the burden of proving that its tests are "job related," it remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest in "efficient and trustworthy workmanship." Such a showing would be evidence that the employer was using its tests merely as a "pretext" for discrimination. The court then addressed the issue of this case: whether Albemarle has shown its tests to be job related. The question of job relatedness must be viewed in the context of the plant's operation and history of the testing program. The Company made no attempt to validate the [Wonderlic] test for job relatedness, and simply adopted the national "norm" score of 18 as a cut-off point for new job applicants. The court then discussed Albermarle's attempt to validate the tests just before trial. Discriminatory tests are impermissible unless shown, by professionally acceptable methods, to be "predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated." Measured against the Guidelines, Albemarle's validation study is materially defective in several respects. See p. 396, bottom right, to see their concerns laid out. For these reasons, the court agreed with the Court of Appeals that the District Court erred in concluding that Albemarle had proved the job relatedness of its testing program and that the respondents were consequently not entitled to equitable relief. Case Questions 1. What could or should Albemarle have done in order to ensure that the test validation would hold up in court? Ask the students to look at p. 396-7 to see the problems with Albemarle's study identified by the court. Ask them how a defendant may have better designed a study or handled the validation, compared to Albemarle. Can you think of other situations or requirements which may serve to lock out one sector of the work force? A seniority program may serve to lock out individuals from a sector of the work force. Where a firm has been predominantly white, those are the individuals with seniority and, while it appears to be a facially neutral standard, this would allow only those who had been there the longest, i.e. the white employees, to move up to the better positions. 3. What are some examples of employment tests, such as that used in this case, which may hold up in court? Ask the class about their own experiences and whether they would hold up to the Griggs/Albemarle test. LECTURE NOTES III. Legality of Testing for Ineligibility A. Reasons to test for ineligibility. 1. The employer may wish to reduce workplace injury or to provide a safer working environment. Drug testing has been shown to drastically reduce the number of workplace injuries and personal injury claims. 2. Second, an employer may use to tests in order to predict employee performance. Personnel costs related to drug use, workplace crimes, and personality conflicts lead to great increases in costs to the employer. 3. Third, testing can reduce the employer's financial responsibility to the state workers' compensation system. The use of an illegal substance which contributes to the claimant's injury may serve as a defense to the employer's liability. B. Employees in the private sector, though not protected by the Constitution (no state action), do have some claims against testing. (See Chapter 17, as well.) 1. Portions of the constitutions or state statutes of certain states establish private sector requirements for workplace testing. 2. There is also some support for a claim of common law invasion of privacy in connection to private sector testing. In order to support a claim of invasion of privacy, the individual must show that her or his privacy was invaded by unreasonable intrusion upon her or his seclusion; appropriation of her or his name or likeness unreasonable publicity of her or his private facts; and publicity that unreasonably places the individual in a false light before the public. Of these causes of action, the ones most likely to arise in the employment context are intrusion and public disclosure of private facts. Some courts have adopted some or all of these causes of action while others have not. 3. Workers have also found support for claims based on reckless or negligent infliction of emotional distress. This would occur where the employee can show that the employer's intrusion into the employee's private affairs constitutes intentional (and in some states, even reckless or negligent) extreme and outrageous conduct, and would cause mental suffering, shame, or humiliation (be highly offensive) to a reasonable individual under similar circumstances. In determining the offensiveness or reasonableness of the invasion, courts will balance the employer's reason for the test with the extent or intrusiveness of the invasion of privacy. 4. An employee may be able to state a claim for defamation. The employee must be able to how that a. The employer disseminated his or her intimate information to the public and b. That disclosure was not reasonably necessary to serve the employer's legitimate business interest in the fitness of the employee to perform her or his job. c. This latter requirement would allow dissemination of the information to those persons who have a "need to know" the information in order to adequately perform their jobs. *The exception is lost where the employer disclosed the information on the basis of its malice against the employee. d. Once the test has been administered, whether it is a physical, a drug test, or a polygraph, it is advisable for the employer to secure the chain of custody of any data, samples, or both and to confirm the results with other examinations. 5. The employee may have a common law cause of action for wrongful discharge in violation of public policy. An employee may base her claim on the argument that the court should not condone certain employer activities because those activities would directly contravene some clear public policy. a. There are only two exceptions to the policy against testing: 1) where conducted by an employer based on a reasonable good faith suspicion of an employee's drug usage or 2) where an employee's job responsibility involves public safety or the safety of others. 6. Many courts hold strong to the theory that, in the private sector, and where there is no employment contract binding the parties to the relationship, the employer has every right to impose testing and, if the employee does not like it, she or he may simply leave that job. If enough employees refuse to submit to the test and instead leave the job, the employer will be forced to alter its conditions of employment to obtain or retain employees. Lecture Note: What do your students think of this last statement? Can the market work in this situation? Why or why not? Many students will feel that the employer always has the upper hand and that they must submit to whatever conditions the employer imposes. Push this resistance one step further and find out what the employer could ask these students to do that would make it so that they would leave their job. How bad does it have to get at a job such that they would refuse to work there and leave the job instead of submitting? Well, this is how these employees have felt about drug testing. They feel that the invasion of their privacy is too great and they would rather leave than submit. Case Example: Jennings v. Minco Tech. Labs, 765 S.W.2d 497 (Tx.Ct.App. 1989) Issue: Whether Monco's drug testing program was unlawful as a violation of the employees' privacy? Facts: Jennings had been working at Minco labs for 16 months when Minco announced that they intended to begin testing their employees for drug use. It worked like this: two months after this announcement, the company would begin to ask employees on a random basis to offer urine samples to be tested, with their consent, for evidence of the use of illegal drugs. Jennings claimed that the testing was unlawful and should be enjoined because the tests violated the employees' common law right to privacy. The lower court determined that the plan was lawful and that no unwarranted intrusion into her private life existed to justify the injunction she requested. The lower court based its conclusions on the fact that Jennings was an "at-will" employee who could have refused to comply with the tests and quit. Instead, she chose to stay and must therefore submit. The court of appeals held that the test was, in fact, lawful. Decision: Since Jennings was an at-will employee, it necessarily follows that "either party may impose modifications to the employment terms as a condition of continued employment." To be incorporated into the employment contract, however, any modification (such as the company's plan) requires the assent of both the employer and the employee. Jennings claims that she should not have to be subject to the proposed modification (testing) because: (1) her privacy interest will suffer an unwarranted invasion if the company is allowed to implement its plan, owing to the very nature of the plan, various defects in it, a want of any real justification for it, and to the absence of any considerations that outweigh her common law right of privacy; (2) the State may, in the public interest, regulate and qualify all employment contracts; (3) specifically, a Texas court may, when necessary to effectuate an important public interest, modify existing common law precepts to "at-will" employment contracts; and (4) the trial court erred when it declined to modify those precepts to secure her continued employment by the company, free of any obligation to submit to the drug testing plan and the accompanying invasion of her privacy. In the present case, the particular privacy interest at stake is Jenning's right to be free of unwarranted intrusion into her private affairs. The heart of this privacy interest is the individual's exclusive prerogative to determine when, under what conditions, and to what extent he will consent to divulge his private affairs to others. But, Jennings employer threatens no unlawful invasion of any employee's privacy interest; therefore it threatens no act contrary to the public policy underlying the common law right of privacy. The company's plan contemplates, rather, that an employee's urine will be taken and tested only if he consents. The plan therefore assumes, respects and depends upon the central element of the right of privacy and its attendant public policy: the individual's exclusive right to determine the extent and conditions under which he will disclose his private affairs to others. This consensual predicate to any test reduces Jennings' argument to her remaining contention. Jennings finally argues that she is poor cannot afford not to give her consent; therefore, the consent is illusory and not real. For that practical reason, she argues, the company's plan does threaten a non-consensual, and therefore unlawful, invasion of her privacy. The court does not accept this argument. A competent person's legal rights and obligations, under the common law governing the making, interpretation and enforcement of contracts, cannot vary according to his economic circumstances. There cannot be one law of contracts for the rich and another for the poor. Case Questions Are you comfortable with the court's response to Jennings' final contention? Are there situations where the court should consider the difference the impact of its decisions on someone who is wealthy as opposed to someone who is not? There are other circumstances where the court does look to these issues. For instance, where a contract is signed under economic duress (where the party believes that there is no economic alternative but to sign a sometimes outrageous contract), the court is more likely to find duress where the signing party is economically unstable. 2. If Jennings is arguing that her consent was not truly voluntarily given (as a result of economic duress), how do you feel about the court's final decision that it was voluntary? This question gets to the heart of the objective/subjective battle between judicial opinions. The court is saying that, objectively, Jennings signed the form and, to an outsider, it looks as if she consented. Jennings argues that, no matter what she did do, she did not voluntarily offer her consent (it was given instead because she felt she had no economic alternative). So, subjectively, there was no consent. 3. Is the court realistic in its understanding of the at-will employment environment here? Do you believe that Jennings could have imposed modifications to the terms of her employment in the same manner as could Minco? The court in this specific case tends to dismiss other courts' dicta which state that there is not equal bargaining power in the employment relationship and the employee has fewer rights or less ability to impose different, varying terms on the employment agreement than the employer. LECTURE NOTES IV. Forms of Testing A. Polygraphs, Truth-telling devices 1. A polygraph test measures three physiological indicators of arousal, rate and depth of respiration, cardiovascular activity, and perspiration. 2. The examiner asks a structured set of questions and the subject is evaluated as honest or deceitful based on the pattern of arousal responses. 3. The test has been criticized, however, as catalysts other than dishonesty may produce similar effects in an individual subject. For instance, if an individual is aware that the basis for the test is a concern regarding theft, she or he may become innocently aroused when asked questions relating to the theft. On the other hand, the individual who has actually committed the theft may not be concerned at all; if the person was capable of theft, she or he may be just as comfortable with deceit. 4. It is unclear why so many employers want to use polygraphs when one understands how unreliable they are. During the past decade, each year more than 2 million privatee sector employees were asked to take a “lie detector” test. In 1983, the Congressional Office of Technology Assessment conducted a study of polygraph reliability. The Office found that there is a dearth of research or scientific evidence that proves that the polygraph is valid for screening purposes. In fact, it has been found that accuracy rates range from 90% to 50%. 5. Because of the large number of false positives and inaccuracies of the polygraph test, a loud outcry from those wrongly accused of improper behavior has resulted in the enactment of the Federal Employee Polygraph Protection Act of 1988. This Act, to a great extent, puts an end to polygraph use in selection, and greatly restricts its use in many other employment situation. The Act provides that an employer may not: a. directly or indirectly require, request, suggest or cause any employee to take or submit to any lie detector test, e.g. a polygraph, deceptograph, voice-stress analyzer, psychological-stress evaluator, and any similar mechanical or electrical device used to render a diagnostic opinion about the honesty of an individual; b. use, accept, refer to, or inquire about the results of any lie detector test of any job applicant or current employee; c. discharge, discipline, discriminate against, or deny employment or promotion to (or threaten to take such adverse action against) any prospective or current employee who refuses, declines, or fails to take or submit to a lie detector test, or who fails such a test. 6. However, there are certain employers who are exempt from these regulations. These employers include: a. Private employers whose primary business purpose is to provide security services. Prospective employees may be tested if the positions to which they are applying involve the protection of nuclear power facilities, shipments or storage of radioactive or other toxic waste materials, public transportation, or currency, negotiable securities, precious commodities, or proprietary information. b. Employers involved in the manufacture, distribution or dispensing or controlled substances. Employers may administer polygraph tests to applicants for positions that would provide direct access to the manufacture, storage, distribution or sale of a controlled substance. c. Federal, state and local government employers. The federal government may also test private consultants or experts under contract to the Defense department, the National Security Agency, the Defense Intelligence Agency, the Central Intelligence Agency, and the Federal Bureau of Investigation. 7. A private employer may also test current employees if the following four conditions exist. This is called the Investigation Exemption. a. First, the test must be administered in connection with a workplace theft or incident investigation. b. Second, the employee must have had reasonable access to the missing property or loss incurred. c. Third, the employer must have reasonable suspicion that this particular employee was involved. d. Fourth, the employee must have been given written information regarding the basis for the investigation and for the suspicion that she or he is involved. An employer can not discharge, discipline, or otherwise discriminate against the test taker in any manner on the basis of the polygraph test results or refusal to take a polygraph test without additional supporting evidence. 9. Violations of the Act are subject to fines as high as $10,000 per violation, as well as reinstatement, employment or promotion, and the payment of back wages and benefits to the adversely affected individual. a. The Wage and Hour Division of the Employment Standards Administration of the Department of Labor has the authority to administer the Employee Polygraph Protection Act. b. Pursuant to the Act, the Department of Labor has issued the following poster for workplace distribution. (See Boxes 14-4 and 5.) 33 states have statutes which either prohibit or restrict the use of polygraph examinations for use in employment decisions. Where a state law is more restrictive than the Federal Act, the Act does not preempt the statute. A recently patented test, the “digital video functional capacity assessment” (DV-FCA), may evaluate whether an individual is falsely claiming an injury or impairment that isn’t revealed by an X-ray or other medical tests. The test involves videotaping the individual while he or she performs a series of 20 motions, including repetitive movements, walking, bending, and lifting. The filmed movements are then analyzed by a computer program, which generates graphs that allegedly show the individuals ability to perform each task. The biggest customers of DV-FCA are insurance companies. One customer stated that in approximately 100 uses, DV-FCA results were consistent with other tests physicians might use. (See Mary P. Gallagher, “A Verbal Threshold Lie Detector?” New Jersey Law Journal, (October 31, 2000). Case Example: Blackwell v. 53rd-Ellis Currency Exchange, 852 F. Supp. 646 (N.D. Ill. 1994) Issue: Did Miller have a “reasonable suspicion” of the plaintiff’s involvement in the thefts? Did Miller properly inform the plaintiff before administering the polygraph test? Facts: Yvonne Blackwell (Plaintiff), a former cashier for the 53-Ellis Currency Exchange, Inc.(Defendant) brought action alleging violations of Employee Polygraph Protection Act of 1988 (EPPA) based, in part, on Miller's failure to meet the requirements for the ongoing investigation exemption in that Miller did not have a reasonable suspicion of her involvement in the alleged activity. At the time the plaintiff was working for the exchange, a notary seal was discovered missing from the office. The owner of the exchange (Mr. Miller) announced that every employee would be required to take a polygraph test to see who had taken the seal, as well as to investigated various cash shortages. Yvonne too the test and she was informed that she had passed immediately afterward. Two weeks later, Yvonne was fired. According to Miller, Yvonne was fired for cashing several forged checks, misrepresenting the verification of a cashier's check and "acting" uncivilly toward Miller. Decision: Judgment for Plaintiff. The District Court held that the fact that employee had access to missing items was insufficient to provide employer with "reasonable suspicion" that employee was involved in taking items, and statement given to employee by employer prior to administration of polygraph test during investigation of missing items was insufficient. Case Questions: 1. What additional facts would you look for to support reasonable suspicion in a case such as this (beyond merely having access to the stolen items)? class discussion 2. Do you believe that the burden on employers under the EPPA is too great? class discussion 3. Do you believe that the EPPA adequately protects employees from unfair tests? class discussion B. Integrity and Personality Tests. 1 As employers have been restricted in their use of polygraph tests, many have resorted to subjective tests which purport to measure honesty or integrity through analysis of written or oral answers to numerous questions. 2. In addition, employers have resorted to analysis of handwriting and other non-traditional forms of employee selection and discovery of personality-related information. 3. Validity. While the validity of such tests in discovering useful employment-related information remain at issue, the tests have not been shown to have a consistently adverse impact on any one protected group. a. It is generally agreed that a basic intelligence test is too blunt an instrument with which to determine any specific employment-related results. Because of the use of these methods, several states severely restrict or prohibit various personality tests. 4. Personality tests should not be confused with intelligence tests, which have suffered a great deal of criticism in connection with their potential for disparate impact discrimination against various minority groups. Case Example: Soroka v. Dayton Hudson Corp., 235 Cal.App.3d 654 (1991) Issue: Whether the tests administered by Target serve a compelling, job-related interest. Facts: Appellants Sibi Soroka, Sue Urry and William D'Arcangelo sued Dayton Hudson claiming that its practice of requiring Target Store security officer applicants to pass a psychological screening (called the "Psychscreen") discriminated on the basis of race, gender, religion, and physical handicap. The appellants took the test. Soroka was hired; Urry, a Mormon, and D'Arcangelo were not hired. The main functions of the store security officers (SSO) is to observe, apprehend and arrest shoplifters. The SSOs carry handcuffs and are allowed to use force against a suspect in self-defense. Target contends that good judgment and emotional stability are important skills for the SSOs. The purpose of the Psychescreen, Target argues, is to screen out applicants who are emotionally unstable, who may put customers or employees in jeopardy, or who will not take direction or follow store procedures. The test used is a combination of two different accepted psychological tests. The resulting test includes questions about the applicant's religious attitudes, such as "my soul sometimes leaves my body . . . I have no patience with people who believe there is only one true religion. . . Everything is turning out just like the prophets of the Bible said it would." The test also includes questions regarding the applicant's sexual preference, such as "I have been in trouble one or more times because of my sex behavior . . . I am very attracted to members of my own sex . . . I like to talk about sex . . . many of my dreams are about sex matters." Although the tests are scored by outside consultants and applicants are rated as to emotional stability, interpersonal style, addiction potential, dependability and reliability, and socialization, Target does not receive individual responses to the questions. . Hiring decisions may be made on the basis of these recommendations, although the recommendations may be overridden. Decision: While California law holds employers to an even more stringent standard, under the lower federal standard, employees may not be compelled to submit to a violation of their right to privacy unless a clear, direct nexus exists between the nature of the employee's duty and the nature of the violation. While Target unquestionably has an interest in employing emotionally stable persons to be SSOs, testing applicants about their religious beliefs and sexual orientation does not further this interest. To justify the invasion of privacy resulting from the use of the Psychoscreen, Target must demonstrate a compelling interest and must establish that the test serves a job-related interest. [The court found that Target did not do so.] Case Questions Why do you think that Target administered this test? What did it learn about each applicant as a result of the test? Target probably believed that this test, though it provided other non-job-related information, also provided target with the best information with which to reach employment decisions. Its purpose in administering the test is to determine whether the individual was emotionally stable and sufficiently responsible to carry out the responsibilities of a store security officer. Instead, it learned a great deal more about the applicant than it should have, and probably very little about the applicant's ability to carry handcuffs and use self-defense. Is there any relevance between the responses to the questions asked and the individual's ability to perform the job? You may find that many students will feel that employers have a right to know these things about their employees, i.e. whether they are emotionally stable and so on. They would probably disagree that the employer has a right to learn about the applicant's sexual orientation, religious beliefs and so on. Certain responses to certain questions may, however, offer employers a good idea about how applicants may handle certain situations (like patience, etc.). 3. If Target's main purpose was to determine emotional stability, what other method could it have used to obtain this information about its applicants? There exist psychological screening devices which are not so focused on areas relating to discrimination. I might suggest, perhaps, a conversation with a sociologist/psychologist, however even there I am concerned about the potential for invasion. Perhaps the best possible method is to place the individual in the type of situation which she or he might face during employment and seeing how she or he responds. LECTURE NOTES C. Physical Ability Testing. Physical Ability Tests are administered to applicants seeking particularly physically demanding jobs. This type of test is used to increase the likelihood candidates will be able to perform the essential physical functions of the job in question. Because the ADA calls for the testing of essential functions, general tests of fitness may no longer be an appropriate means of testing for physical fitness. Under current laws, physical ability testing usually results in some type of job simulation. Intelligence Testing When testing cognitive ability, employers strive to hire the most intelligent applicants, right? The answer to this seemingly obvious question is: Maybe not! Case Example Facts: The plaintiff applied for employment in the defendant’s police department, and was rejected. He was told that he had not advanced to the interview stage because he did not “fit the profile.” After filing an administrative complaint, the plaintiff discovered that he had been rejected because of his high score on the written cognitive ability test he had taken earlier in the hiring process. The Second Circuit Court of Appeals upheld the federal trial court’s decision allowing the police department to reject a candidate who scored above the median for any of its listed occupations. Issue: Did the city’s use of an “upper cut” violate the Equal Protection clause? Holding: No. Grant of defendants’ motion for summary judgment affirmed. Court’s rationale: Under the “rational basis” standard of review, even without a strong statistical correlation between high test scores and job turnover, it is enough that the City believed it be so based on other evidence such as materials prepared by the test maker indicating a connection. It does not matter whether the city’s decision was correct: what is important is that it was rational. Case Questions How does the police department defend its decision not to interview Jordan based on his high score on the “WPT?” Do you agree with the police department’s reasoning? Why or why not? [Student response]. The plaintiff learned from a city administrator that he would not be interviewed because he “didn’t fit the profile.” How else could the city administrator have responded to an inquiry by an unsuccessful applicant? [Student response]. The court does not require a statistical correlation between high scores on the intelligence test and job turnover due to a lack of job satisfaction: it is enough that an employer believes this connection to exist. Would you base an adverse employment decision on unproven assumptions regarding testing results? What is the potential danger of such an approach? [Student response]. E. Drug and Alcohol Testing. 1. Based on the 1998 Annual National Household Survey, 73% of all current illegal drug users 18 or older were employed in 1997. In response to the growing problem of drugs in the workplace (70% of all illegal drug users are employed), and related injuries and accidents, President Bush enacted the Drug-Free Workplace Act in 1988 which authorized the drug testing (or "biochemical surveillance") of federal employees under certain circumstances. a. Pre-employment screening of job applicants and testing as a part of a rehabilitation program are allowed by the Act. b. In addition, the Act requires that federal contractors and grant recipients satisfy certain requirements designed to eliminate the effects of elicit drugs from the workplace. c. In response to the Act, all federal agencies established individual drug-use testing programs designed to ensure the safety and security of the government and the public. d. The Act also provides that, in order for a drug-use testing program to be legal, covered employers must posts and distribute a policy statement explaining that the unlawful manufacture, distribution, dispensation, possession, or use of controlled substances is prohibited. e. Discipline or sanctions against the offending employee is left to the employer's discretion. f. However, if a criminal conviction arises from a workplace substance abuse offense, the employer is required to administer an employment sanction, or advise and direct the employee to an approved substance abuse treatment program. g. In order to protect the employee's right to due process, the employer must educate the work force of any drug/alcohol policy and testing procedures. h. In addition, laboratory and screening procedures must meet certain standards. Case Example: National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) Issue: Whether a urine-based drug testing program violated federal employees' Fourth Amendment protections? Facts: The United States Customs Service implemented a drug screening program which required urinalysis tests of service employees who wanted to be transferred or promoted to positions where there might be some contact with drugs, such as confiscation, or where the employee might have to carry a firearm or handle classified material. The program provides that the results of the test may not be turned over to any other agency without the employee's written consent. The petitioners, a federal employees' union and one of its officials, sued claiming a violation of the Fourth Amendment. The district court agreed and enjoined the program because the plan was overly intrusive without probable cause or reasonable suspicion. The court of appeals vacated the injunction holding that this type of search was reasonable in light of its limited scope and the service's strong interest in detecting drug use among employees in certain positions. The Supreme Court affirmed in connection with positions involving contact with drugs and/or firearms but vacated and remanded the decision in regards to those positions which require handling of classified materials. Decision: The court referred to Skinner v. Railway Labor Executives Assn., decided on the same day, where it held that federal regulations requiring employees of private railroads to produce urine samples for chemical testing implicate the Fourth Amendment, as those tests invade reasonable expectations of privacy. In view of our holding in Railway Labor that urine tests are searches, it follows that the Customs Service's drug testing program must meet the reasonableness requirement of the Fourth Amendment. In explaining the balancing test required in these cases, the court explained that, where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context. Even where it is reasonable to dispense with the warrant requirement in the particular circumstances, a search ordinarily must be based on probable cause. Customs employees who are directly involved in the interdiction of illegal drugs or who are required to carry firearms in the line of duty likewise have a diminished expectation of privacy in respect to intrusions occasioned by a urine test. Because successful performance of their duties depends uniquely on their judgment and dexterity, these employees cannot reasonably expect to keep from the Service personal information that bears directly on their fitness. The court therefore held that the Government has demonstrated that its compelling interests in safeguarding our borders and the public safety outweigh the privacy expectations of employees who seek to be promoted to positions that directly involve the interdiction of illegal drugs or who are required to carry a firearm. Case Questions An approved drug-use test must be conducted within reasonable parameters. In Capua (excerpted above) the court determined that a urine collection process may not be reasonable if "done under close surveillance of a government representative “as it” is likely to be a very embarrassing and humiliating experience." Courts will generally balance the employee's rights against the employer's stated basis for the test and determine whether the cause of the test is reasonable and substantial. For instance, in Skinner v. Railway Labor Executives Assn., the court stated that the railway employees had a reduced expectation of privacy due to the highly regulated nature of the industry. In addition, societal interests, such as safety and security of the railways, may outweigh the individual employee's privacy interests. When might this be the case? The court, in Skinner and in this case, believes that it is relevant to its decision the extent to which the employee expects that its privacy will be maintained or intruded upon during the course of employment. In cases dealing with the carrying of firearms or the protection of public safety, perhaps those employees have a lower legitimate expectation of privacy than a schoolteacher. 2. Why do you think the court made a distinction between positions involving contact with drugs and/or firearms and positions which require handling of classified materials? The latter, arguably, is not an issue of public safety to the same extent as the former. On the other hand, depending on the type of classified documents, many pieces of paper may lead to less safe situations than a gun (think about the classified papers to which a government employee may have access.) Discuss here the recent spy cases and the fact that at least ten U.S. agents were killed as a result of "mishandling," "misappropriation" of classified documents. LECTURE NOTES 2. Types of substance tests a. The most common form of employee drug-use screening test is an immunoassay test. 1) The typical test kit will include a number of solutions (reagents) which are added to a urine sample. When the reagent containing a drug antibody is mixed with the urine, any drug-infected urine will become more dense. When the change in density is visible, the test result is positive. Confirmatory tests should then be administered. 2) The test costs between $4.50 and $25.00, depending on the number of drug for which the employer wants to test. 3) The immunoassay test has several limitations. a) First, the test is subject to cross reactivity, where the test detects small amounts of similarly structured drugs, some of which are not illegal. b) Second, the test does not evidence the time or quantity of ingestion, or the effects of the impairment on job performance. c) In addition, the test only investigates the presence of one drug at a time. b. A second form of drug testing, testing hair follicles ("radioimmunoassay of hair"), has therefore become more popular among employers. This test works on the theory that substances are absorbed into the bloodstream and incorporated into the hair as it grows. 1) A hair follicle test can purportedly determine the chronology and degree of the subject's drug use by reporting that which was in the body at the time the hair was formed in the follicle. 2) Any positive response is confirmed by a more sensitive gas chromatography/mass spectrometry test. 3) The procedure involves cutting a small amount of hair from the subject, approximately one and one-half inches in length from the back of the head so as to remain physically unnoticed. The sample is placed in a collection envelope which is immediately sealed and transported to a testing facility. 4) Because of the sampling technique, hair follicle testing is slightly less intrusive than are urinalyses. a) Many urinalysis examinations are monitored in order to prevent tampering or contamination; this type of intrusion into personal activities would not be required in a follicle exam. b) In addition, the window of detection opened by a follicle test is much greater than that of a urinalysis. The follicle test is reliable up to a period of approximately three months, compared with the one to three day window of reliability for urinalysis. c) On the other hand, many of the arguments which arise in connection with urinalysis drug testing can be repeated here. Hair follicle testing provides much quantifiable information regarding the amount of drugs ingested, and the period of time over which the drugs were taken. d) Given its ability to reveal extensive information, follicle testing has been attacked as an unreasonable intrusion into the subject's private life in connection with unregulated and unrelated off-work activities. 3. Application of the Americans With Disabilities Act. a. The Act, which applies to private sector employers, provides that individuals who currently use illegal drugs are not considered individuals with disabilities. b. However, if an employee or applicant is pursuing or has successfully completed a rehabilitation program and demonstrates that they have a disability based on prior use, she or he is covered by the Act and therefore entitled to reasonable accommodation. (See Chapter 14 regarding the ADA.) 4. Private Sector Employees a. The Drug-Free Workplace Act does not apply to private sector employers; nevertheless, private employers have generally followed the guidelines set forth in the Act in the institution of their own programs, and such programs have generally been upheld where reasonable procedures are followed. b. Occupation-Specific Regulations: Restrict or require drug testing of certain employees. 1) Where the government requires or actively encourages testing by the private sector, the testing may be subject to Constitutional scrutiny. 2) For instance, the Department of Transportation (DOT) requires private sector transportation employers to randomly drug test employees in safety or security related positions. a) In addition, under certain circumstances, DOT requires pre-employment and periodic testing, testing where reasonable cause exists and subsequent to any accidents. b) An employee who tests positive is removed from her or his position and can only return after successful completion of a rehabilitation program. c) These requirements must meet Constitutional requirements of privacy and due process, even though the testing is actually carried out by private employers. 3) The Drug-Free Workplace Act of 1998 is aimed at providing small businesses, who often lack the resources and infrastructure to conduct employee drug tests, financial resources and technical assistance in implementing drug testing program. The three purposes of the Act are to a) educate small business concerns about the advantages of a drug free workplace; provide financial incentives and technical assistance to enable small business concerns to create a drug free workplace; and c) assist working parents in keeping their children drug free. The DrugFree Workplace Act of 1998 provides a $10 million grant program for nonprofit organizations that have the ability to provide technical assistance to small businesses in establishing drugfree policies. 4) 23 states have enacted legislation designed to protect the privacy of private sector employees. These state laws vary in their approach; some states offer a great deal of protection for employees and may be classified as pro-employee (such as Connecticut, California and Minnesota), while other states allow testing after satisfaction of only modest burdens and are classified as pro-employer (such as Utah). F. Medical Testing. 1. Many employers require pre-employment, post-offer medical tests in order to ensure that the applicant is physically capable of performing the requirements of the position. 2. Medical examinations are prohibited only prior to the offer in order to protect against wrongful discrimination based on a discovered disability. 3. Pursuant to the Americans With Disabilities Act and the Vocational Rehabilitation Act, an employer may not reach an employment determination on the basis of a disability, where the applicant (or employee) is otherwise qualified for the position, with or without reasonable accommodation. For more on disability discrimination, see Chapter 14. a. Medical examinations subsequent to the offer of employment but prior to the actual employment are allowed under the Acts for the purpose of determining whether an employee is able to perform the job for which she or he has been hired. b. The Acts require, however, that all employees within the same job category be subject to the medical examination requirement; individual applicants may not be singled out. c. In addition, all information generated through the examination process must be maintained in confidential files, separate from other general personnel-related information. 4. Subsequent to the applicant's employment, no medical examination may be required unless the test is job-related and justified by business necessity. G. Genetic Testing. 1. Genetic testing is a scientific development that involves the use of laser and computer technology. Scientists make diagnostic predications by locating a specific disease-associated gene on an individual's chromosomes. 2. By testing an applicant's gene's, researchers are able to ascertain which applicants can be expected to experience negative reactions to various chemicals. In a study by the OTA concluded in 1983, the office found that "none of the genetic tests evaluated by the OTA meets established scientific criteria for routine use in an occupational setting. However, there is enough suggestive evidence to merit further research." 3. Today, with the tremendous advances in medical and technological fields, employers who choose to use genetic testing would have humongous amounts of information at their fingertips. Governments and private sector firms are rushing to map the entire human genome for the purposes of preventing and treating countless health problems. However, there does not yet exist any Federal legislation or regulations restricting the use of this personal, private and potentially volatile information. The fear includes the concern that an employer might discover something about an individual's genetic makeup that points to the potential for a debilitating disease and therefore may choose not to hire the individual based on that potential, even though the person may never develop that disease. In addition, the individual might have no previous knowledge of their disposition towards the disease and, in fact, might not want to know. Should the employer let that person know the reasons for their failure to get the job? Taken to an extreme, genetic testing might allow society to separate individuals on the basis of their potential for disease - a result that is not taken lightly. Simply because we have the ability to test for something, does that mean that we should? 4. Moreover, genetic testing is far from perfect. Researchers have found that some of the genetic differences found in the test might be due to damage to the genes from the test itself. Similarly, the tests (in their present technological state) evidence only the response of the sample to the presence of a certain toxic agent. The results show merely that the subject is more susceptible to that toxic agent than someone else. Only infrequently can the test show more than this mere susceptibility or potentiality 5. One additional issue raised by genetic testing is based on the fact that genetic irregularities which may substantially impair a major life activity may be considered protected disabilities under the Americans With Disabilities and Vocational Rehabilitation Acts. a. A genetic test may only encourage discrimination based on myths, fears and stereotypes about genetic differences. 6. In addition, at least 21 states prohibit or limit genetic testing as a matter of law. Except to determine an employee's susceptibility or level of exposure to potentially toxic chemicals in the workplace, employers in several states are prohibited from using genetic testing as a condition of employment, including New Hampshire, Illinois, North Carolina, Rode Island, Vermont and Wisconsin. Many states prohibit discrimination and employment decisions based on genetic information. H. HIV/AIDS Testing. 1. Employers unreasonably fearful about the onslaught of HIV in the workplace and the effect it will have on their work forces are anxious to test their employees or applicants for the presence of HIV. However, the HIV test in the workplace is inappropriate for two reasons. a. First, in order for the test to be justified, it must serve a legitimate business purpose. As HIV is not transmitted by casual contact of the sort that takes place in a work environment, an HIV test is improper for most positions. b. Second, the test only reports the subject's status as of several weeks, if not months, in the past. The test does not determine the HIV status of the individual as of the day of the examination. c. Therefore, unless the employer monitors and restricts the employee's off-work activities prior to the test and in between testing, the inquiry is inefficient and ineffective. d. In addition, an employer may not take an adverse employment action against an employee merely based on the knowledge that the individual is HIV-positive. 1) That employee or applicant is protected by both the federal Vocational Rehabilitation Act as well as the Americans With Disabilities Act. 2) These Acts provide that an employer may not make an employment decision based on the individual's HIV status, where the person is otherwise qualified to perform the essential requirements of the position. 2. Frequently called the "AIDS Test", the HIV test does not actually test for AIDS. Instead, it tests for the presence of antibodies to HIV in the blood. If the first test performed - called the ELISA (Enzyme Linked Immunosorbent Assay) - is positive, a second ELISA test is performed in order to confirm the results. If that is positive, an additional test, the Western Blot, is conducted. One's body may take as long as six months to produce the HIV antibodies. A negative test result may be irrelevant if taken less than six months since the subject's last transmissive activity. 54 Healthcare workers (HCWs) exposure to AIDS. As of June 30, 1998, the Centers for Disease Control and Prevention (CDCP) was aware of 54 health care workers (HCWs) in the United States who have had documented HIV seroconversion following occupational exposures, which means they tested negative for HIV infection around the time of exposure, but tested HIV positive within a year after the exposure. Another 133 HIVinfected health care workers have been classified as having possible cases of occupational transmission. These 133 health care workers have a history of occupational exposure to blood, other body fluids, or HIVinfected laboratory material and report no other risk factors for HIV infection, but do not have documentation of seroconversion after the occupational exposure. Lecture Note: The book here discusses the concept of HIV testing of health care workers. There is a great deal written in this area on both sides of the issue and I always find it interesting to assign several students to prepare and to argue each side, then for the rest of the class to vote on what they believe to be right. Case Example: Glover v. Eastern Nebraska Community Office of Retardation, 686 F.Supp. 243 (D.Nb. 1988), aff’d 867 F.2d 461 (8th Cir. 1989) Issue: Whether HIV testing is appropriate at this particular employer? Facts: Eastern Nebraska Human Services Agency implemented a policy, called the Chronic Infectious Disease Policy, which required certain employees to submit to mandatory testing for tuberculosis and HIV. The policy was enforced at all branches of the Agency, including the Eastern Nebraska Community Office of Retardation (ENCOR), which provides residential services for the mentally disabled. Staff members at ENCOR consistently deal with clients who bite, scratch, throw objects, hit, pinch and have otherwise violent outbursts. The rationale for testing employees in certain positions at ENCOR is that these positions involve extensive contact with clients. A number of employees filed suit to enjoin the enforcement of the policy. Decision: The court evaluated the evidence available and concluded that the evidence establishes that the risk of transmission of the AIDS virus from staff to client, assuming a staff member is infected with HIV, in the ENCOR environment is extremely low, approaching zero. The risk of transmission of the virus from staff to client due to the staff member attending to a client's personal hygiene needs is zero. Further, there is no evidence of drug use or needle sharing at ENCOR, nor is there a problem of sexual abuse of clients by staff. In short, the evidence in this case establishes that the risk of transmission of the HIV virus at ENCOR is minuscule at best and will have little, if any, effect in preventing the spread of HIV or in protecting the clients. Further, from a medical view, this policy is not necessary to protect clients from any medical risks. Individuals have a reasonable expectation of privacy in the personal information their bodily fluids contain. Compulsory administration of a blood test "plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment." Case Questions Note that the court, in Anonymous Fireman v. City of Willoughby, 779 F.Supp. 402 (N.D.Oh. 1991), upheld the city's policy of mandatory HIV testing for fire fighters and paramedics as part of their annual physical examination and, in doing so, found no Constitutional violations. Given the disparity among different courts' application of the Fourth Amendment to various factual situations, how would you construct your company's policy? From an employer's perspective, the employer should evaluate the actual potential risk of transmission in the work place. The balance of liability is the responsibility of the employer to protect its clients, customers and other employees, versus the invasion of the employees' privacy. Where, as in almost every work place, there is little if absolutely no risk of transmission, there is apparently no justification for an intrusion in the employees' private lives or fluids. 2. Given the fatality rate of HIV-positive individuals, is it relevant that the court found a "low probability" of infection following a positive response on the blood test? Is it critical to this decision that an individual may not want to know whether she or he is HIV-positive? Couldn't the hospital test, then not disclose to the person tested? Is that ethical? Should an individual have the right not to know her or his HIV status, and a policy of testing would require that the individual find out? Failure to disclose to an individual whether they are HIV positive or negative may not be ethical where the testing party knows that this individual is positive and continues to engage in transmissive activities. If ENCOR is not allowed to test for HIV, how should it protect its residents from possible transmission? Given the fact that the HIV test is fallible and that the test is only valid up to a certain point before the test is administered, employers actually do not know for sure at any given time which, if any, of their employees are HIV positive. Given that fact, employers should act as if anyone with whom they come into contact or hire may be HIV positive. While this should not alter the environment of the work place, it may help to be aware of this fact. LECTURE NOTES Lecture Note: Take a look at Boxes 14-8 and 9 and ask for student response. Chapter-End Questions 1. Eule Ford was a police officer with the City of Pagedale, Missouri, Police Department. After working there for four years, he was appointed Pagedale's Acting Chief of Police. One year later, Leatrice Dowd was appointed Mayor and Alvin Wilson succeeded Ford as Permanent Chief of Police. Ford and Dowd did not have a good relationship; Dowd instituted disciplinary proceedings against him and fired him on several occasions (but the Pagedale Board overturned the decisions each time). After Dowd heard a rumor that Ford was associating with a reputed drug dealer, she ordered that Ford undergo urinalysis testing and told him that failure to comply would result in serious disciplinary actions. The Order requiring the testing stated that Dowd understood this rumor to mean that Ford was involved in "some type of illegal drug use and/or abuse." Ford complied with her order and all tests were found to be negative. However, Dowd's Order remained in Ford's personnel file. When he later left the Department and sought work elsewhere, he was unable to find employment as a result of this Order in his file. Ford filed suit claiming damages as a result of the City's wrongful and vengeful testing program. Ford v. Dowd, 931 F.2d 1286 (8th Cir. 1991) [Any Government imposed order for drug testing must be reasonable as such testing constitutes a search subject to the Fourth Amendment. The court held that the Fourth Amendment does not permit a search based upon an unsubstantiated rumor, and where there is no independent, more specific allegation that the officer was known to have used drugs.] 2. After proposing a drug testing program, the FAA concluded that while drug use is not widespread among commercial aviation personnel and there is no overwhelming drug problem in the industry, nevertheless, it did conclude that there is concrete evidence of drug use in the commercial aviation sector. Consequently, the FAA decided that "in order to ensure that aviation safety is not compromised by a failure to detect drug users in the industry," it would establish a comprehensive random drug testing program. Aviation employees contested the testing, claiming a violation of their Fourth Amendment rights, given their contention that the tests were to be conducted without any reasonable basis for the search. What result? Bluestein v. Skinner, 908 F.2d 451 (9th Cir. 1990) [Where a search serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context. Since the FAA provided evidence of drug use among aviation personnel in safety positions, and given the harm that could be caused by an airline crash, the Governmental interests appear to outweigh the individual's interests in privacy.] 3. Sarah Borse alleges that she was employed by Piece Goods Shop, Inc. as a sales clerk for fifteen years until she was fired on February 9, 1990. In January 1990, Piece Goods Shop, Inc. adopted a drug and alcohol policy requiring all employees to execute a consent to urinalysis screening for drug use as a precondition for continued employment. This consent also authorized the company to conduct searches of an employee's personal property located on company premises. Borse refused to sign the consent form, arguing that her employer's drug and alcohol policy constituted an unreasonable interference with her right to privacy and a violation of her right to be free from unreasonable searches and seizures as guaranteed by the Constitution. Borse v. Piece Goods Shop, Inc., 758 F.Supp 263 (E.D.Pa.1991) [The court evaluated Pennsylvania's public policy exception to employment at will and determined that the exception in that state is extremely narrow. As a matter of fact, the Pennsylvania Supreme Court had yet to recognize a wrongful discharge cause of action in a case before it. Given the state's obvious hesitance to declare public policy exceptions, and the fact that no state action was involved, the court held that a violation of a Constitutional Amendment is not necessarily a violation of a clearly mandated public policy. 4. School bus attendant, Juanita M. Jones, was discharged because of her alleged marijuana use. She sued, challenging the constitutionality of drug testing by urinalysis. She believed the school system's mandatory drug testing of employees by urinalysis was a violation of the Fourth Amendment. The school contends that it maintains a responsibility to its students to ensure their safety on school buses by maintaining drug-free employees. Jones v. Jenkins, 878 F.2d 1476 (D.C.Cir. 1989) [School system's mandatory drug testing by urinalysis of employees, including bus attendant, involved in transportation of handicapped children did not violate Fourth Amendment; drug-testing program had close and substantial relation to goal of deterring drug use on job.] 5. Herman Smith was employed by Greyhound Lines for approximately 13 years as a clerk, and was subject to the collective bargaining agreement of the union. He was responsible for receiving packages to be shipped from customers and either accepting cash or charge the transaction to the customer. On one occasion, Smith accepted two packages from a salesman and marked the receipt "charge." The salesman's company later claimed that the salesman had paid cash. Smith's terminal manager, Howard Kratovel, conducted an investigation which seemed to show that the cash discrepancy was indeed Smith's fault. Smith was given a notice for discharge, but he was told that if he took a polygraph test and passed, he would be reinstated with back pay. Smith signed a release, took the test, and he failed it. Smith filed a complaint against the company alleging wrongful discharge, defamation, and invasion of privacy. Smith v. Greyhound Lines, Inc. 614 F.Supp. 558 (D.C. Pa 1984) [Defendant's motion for summary judgment is granted with respect to the wrongful discharge count because protection against polygraph exams was designed solely for the protection of at-will employees, and Smith was not considered an at-will employee.] 6. Duke Power, in North Carolina, implemented selection requirements in 1965 that stated that a potential employee needed to pass a mechanical aptitude test and a general intelligence test and have a high school diploma. There was no definitive attempt on part of the company to relate these new requirements to job requirements since they did not affect current employees in any way. A lower district court did rule that the new requirements were permissible because there was no evidence of discriminatory intent on Duke's part. However, statistics showed that 34% of white males in North Carolina at that time had high school degrees as compared to only 12% of black males that had high school degrees. Duke Power did emphasize the fact that Title VII allowed them to use the two tests as long as the tests were professionally developed. Were the new selection requirements discriminatory? Griggs v. Duke Power Co., 401 U.S.424 (1971) [The Supreme Court ruled that the absence of the intent to discriminate was not enough to initiate selection requirements that discriminated or had the potential to discriminate against a race. Since there were current employees who did not fulfill these new requirements but were performing their jobs adequately, the requirements could not prove to be job-related and thus were discriminatory.] 7. The District of Columbia's Police Department was charged with administering a racially discriminating test (Test 21) in recruiting new police officers. The charge was based on the fact that although the Police Department did not have "intentional discrimination," Test 21 bore no relation to the job, and it screened out a disproportionate number of black applicants. The test had never been validated for job relevance, and a higher number of blacks did fail the test. The number of black officers on the police force was also not proportionate to the population mix in D.C.; however, the Police Department did show that over 44% of the new recruits had been black, and this figure was very close to the population mix within a 50 mile radius. The Department also showed that it had consistently tried to enroll more blacks, but many of those who passed the test often failed to report for duty. Was Test 21 responsible for the low black population on the police force? Washington v. Davis, 426 U.S. 229 [The Supreme Court ruled that Test 21 was not racially biased, and that it would not damage the chances of any qualified blacks. Because the test was deemed to not be racially discriminating, there was no need for the Department to validate the job relevance of the test or prove that the test would be an accurate indicator of future performance.] 8. Spurlock, a black flight officer, applied for a job with United Airlines and was rejected on his lack of two of the job requirements: a college degree and a minimum of 500 hours of flight service. Spurlock charged that these two requirements were discriminatory towards blacks because the percentage of blacks in this country with college degrees was quantifiably less than the percentage of whites with college degrees, and since whites had been in the industry longer, they would have a better chance of having the minimum 500 hour requirement. United defended its requirements by stating that both of these selection criteria were job related. United showed statistics that claimed that applicants with a college degree were more apt to succeed in the class- room format of the pre-employment training, and 500 hours minimum was a reasonable predictor of employee success in the vigorous training program. Spurlock offered evidence on his behalf by showing that out of United's 5900 flight officers, only 9 were black; thus, there had to be some inherent discrimination in the selection process. Spurlock v. United Airlines, 475 F.2d 216 (10th Cir. 1972) [The court ruled that United did in fact prove the job-relatedness of the selection requirements which made the requirements non-discriminatory.] 9. In response to the Drug-Free Workplace Act, the Department of Labor instituted its Drug-Free Workplace Plan which designated certain DOL positions as sensitive in regard to public health and safety or national security. Employees in these positions, called "testing-designated positions," could be subject to drug testing, including testing based on a reasonable suspicion of on-duty or off-duty drug use. The American Federation of Government Employees sought to enjoin this type of testing. Will the DOL's plan hold up in court? AFGE v. Martin, 969 F.2d 788 (9th Cir. 1992) [The court held that reasonable suspicion of both on-duty and off-duty drug use was acceptable under the Fourth Amendment. Employees' interests in privacy in this case were outweighed by the DOL's interest in preventing on-duty or off-duty drug use from impairing these employees in the performance of their duties.] 10. How would you devise a drug testing program for a private sector workplace? What would be the necessary components and what concerns would you have about its legality?