On Appeal from the United States District Court for the Eastern District of Pennsylvania, Civil Action No. 86-7571.
Sloviter, Stapleton, and Mansmann, Circuit Judges.
STAPLETON, Circuit Judge:
This case brings before us the controversial subject of polygraph testing. The district court held the use of the polygraph for pre-employment screening by the police and correctional departments of the City of Philadelphia to be a violation of the due process and equal protection rights of the plaintiffs. Because we conclude that the polygraph requirement does not violate the plaintiffs' constitutional rights, we will reverse.
Pennsylvania law forbids the use of polygraph testing for pre-employment screening by any private or public employer, with a few specific exceptions; among the exceptions are public law enforcement agencies. The relevant section of the Pennsylvania statutes, 18 Pa. Cons. Stat. Ann. § 7321 (Purdon 1983 & 1987 Supp.), reads:
(a) Offense defined. -- A person is guilty of a misdemeanor of the second degree if he requires as a condition for employment or continuation of employment that an employee or other individual shall take a polygraph test or any form of a mechanical or electrical lie detector test.
(b) Exception. -- The provisions of subsection (a) of this section shall not apply to employees or other individuals in the field of public law enforcement or who dispense or have access to narcotics or dangerous drugs.
As permitted by state law, the police and prison departments of the City of Philadelphia have chosen to make polygraph testing an element of their hiring procedures. The plaintiffs in this case are unsuccessful applicants for employment as City police officers or correctional officers. The reason for the plaintiffs' lack of success in obtaining the employment they sought is their disqualification from consideration for such employment upon their failure to pass the polygraph test.
Like other public agencies, the City law enforcement departments base their hiring on the results of a competitive civil service examination conducted pursuant to 4 Pa. Code § 95 et seq.; individuals passing this test are placed on a certified eligibility list. As openings occur in the police and prison departments, individuals high up on the certified eligibility lists for positions in those departments are notified. Each notified individual must then pass a number of additional tests before being found qualified for employment by the hiring department. The additional tests required by the police and prison departments include a medical examination, a psychiatric examination, a background investigation, and, usually last in the process, a polygraph test.
The background investigation includes completion of a Personal Data Questionnaire (PDQ), which contains questions about family and financial status, driving record, educational and employment history, criminal record, use of alcoholic beverages, and use, sale, and possession of illicit drugs. Before candidates come in to fill out the PDQ and to have their initial background investigation interview, they are notified in writing of the content of the PDQ, including the questions relating to illicit drugs, and are informed that they will have to take a polygraph test that will cover the PDQ questions on their use, possession, and sale of illicit drugs.*fn1 Candidates are also informed that deception or falsification in answering PDQ/polygraph questions may result in rejection. Applicants may defer taking the polygraph test, if they wish, or may request to be reconsidered at a later time. The police and prison departments will hire otherwise qualified individuals who admit to having used or possessed drugs over six months before completing the PDQ and taking the polygraph.
The polygraph testing procedures currently used by both the police and prison departments were developed in 1983 in the course of settling class actions by blacks and Hispanics who had brought suit alleging that the Philadelphia Police Department's hiring and promotion policies were discriminatory. See C ommonwealth of Pennsylvania v. O'Neill, 100 F.R.D. 354 (E.D. Pa. 1983), aff'd without opinion 746 F.2d 1465 (3d Cir. 1984); Alvarez v. City of Philadelphia, 98 F.R.D. 286 (E.D. Pa. 1983). These settlements require the above-described prior notification concerning the PDQ/polygraph questions, and require that if during the test the polygraph examiner finds the applicant "deceptive", the applicant must be told immediately and given a chance to explain, deny, or admit the deception. If the applicant denies being deceptive, or if the explanation is found unsatisfactory by the examiner, the applicant must have the opportunity to retake the test with a second examiner. The second examiner does not review the results of the first prior to readministering the polygraph. If the second examiner finds no deception, the applicant is considered to have passed; if the second examiner also finds the applicant deceptive, that finding is ordinarily final and preclusive of employment. The applicant may, however, appeal to either the Police Department's Review Panel or to the Superintendent of Prisons or the prison review panel, and the reviewers may decide to give the applicant the opportunity to take a third test. If the applicant is found deceptive on a third test, he or she will not be hired. Deception is found on about half of all the tests given.
During a pre-test interview, applicants are asked if there is any other information they would like to provide. During a post-test review, if deception is indicated, they are asked again if there is any information they are withholding. Admissions to disqualifying information were made during these interviews by 315 of the 1028 applicants for positions with the Police Department in 1985, and 251 of the 619 applicants in 1986.
According to Police Commissioner Tucker, an applicant must pass the polygraph test in order to be hired by the Philadelphia Police Department. Prison Superintendent Owens has stated that if an individual could convince the prison review panel that the polygraph was unfair, he or she might be hired by the prison department notwithstanding failure of the polygraph. In no case has an applicant who failed to pass a polygraph test been hired by either of the departments. The results of the tests are not made public, but are used only within the departments for evaluating the suitability of the applicant for employment.
There is considerable controversy about the validity and reliability of polygraph testing. The polygraph measures stress or anxiety, which in many cases may not correlate very well with deception. In 1983, Congress' Office of Technology Assessment put out a Technical Memorandum on polygraph testing, which read in part as follows:
There are two major reasons why an overall measure of validity is not possible. First, the polygraph test is, in reality, a very complex process that is much more than the instrument. Although the instrument is essentially the same for all applications, the types of individuals tested, training of the examiner, purpose of the test, and types of questions asked, among other factors, can differ substantially. A polygraph test requires that the examiner infer deception or truthfulness based on a comparison of the person's physiological responses to various questions. . . . Second, the research on polygraph validity varies widely in terms of not only results, but also in the quality of research design and methodology. ...