EMPLOYEE POLYGRAPH PROTECTION ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B01356R000200250006-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 72
• Document Creation Date: December 27, 2016
• Document Release Date: December 13, 2012
• Sequence Number: 6
• Publication Date: November 4, 1987
• Content Type: MISC

Declassified and Approved For Release 2012/12/13: CIA-RDP89B01356R000200250006-5
.4-
November 4, 14987 CONGRESSIONAL RECORD --HOUSE H 9527
Milne about 270 billion. This would
permit a global pact to coordinate
macroeconomic policy in which inter-
est rates would be cut end foreign
fiscal policies would be made more ex-
pansionary.
The price of failure will be high.
Sooner or inter, the nollek's continuing
slide Is likely to recreate the ?condi-
tions which led to the Wall Street
Panic 2 weeks ago. There can be no
room for a false sense of security. Our
efforts to reach a budget agreement
must not fail.
A QUESTION OF 'SINCERITY
(Mt DONALD E. LUKENS asked
and was given permission to address
the Rouse for 1 minute and to revise
and extend his remarks.)
Mr. DONALD E. LUKENS. Mr.
Speaker, we are all hopeful for evi-
dence of democratization in Nicaragua
under the peace-accord signed in Gua-
temala. As signatories, the Sandinis-
tas' support for the principles of those
accords ought to be clear and un-
equivocal. We should be concerned
when Sandinista Commandante
Bayardo Aree attacked the internal
opposition in the official Sandinista
Newspaper Barricade on October 20.
Arce said that the Freednut Fighters
had committed a grawe earorin believ-
ing the national dialogwas a forum of
equals, and stated that there was,po
alternative to Sandinista rule In Nica-
ragua.
Members will recall that this is the
same commandarate who said in 1084
that elections were a ploy for Consoli-
dating Marxist-Leninist rule. Mr.
Speaker, we should all be concerned
about the sincerity of Sandinista pro-
nouncements on the democratization
of Nicaragua.
LEGISLATION TO BAN USE OF
POLYGRAPH IN THE PRIVATE
SECTOR
(Mr. DARDEN asked and was given
permission to address the House for I
minute and to revise and extend his
remarks.)
Mr. DARDEN. Mr. Speaker, today.
this House will consider sweeping leg-
islation which seeks to ban the use of
the polygraph in the private sector. In
other words, government?State, local,
and national?may continue to utilize
this very effective investigative tool
but private industry cannot.
The Department of Commerce esti-
mates that internal theft and employ-
ee dishonesty throughout this Nation
totals more than 240 billion. Prices in
retail stores are 10 to 15 -percent
higher because of internal theft. More
than 10 times as much money is taken
from banks by dishonest employees
than is taken by bank robbers.
While there Is some potential for
abuse of the PolegraPh, the source of
those abuses should be addressed, in-
stead of banning polygraphs alto-
gether. Therefore, Mr. Tomer of Mori-
da and I will offer a substitute today
which establishes minimum Federal
standards for the use of polygraphs,
but preserves for private industry the
right to use polygraphs, along with
other legitimate Investigative meth-
ods, to prevent employee theft. At the
same time, the opportunity for honest
employees to be exonerated will be
preserved.
I ask my colleagues to carefully
study this issue and to vote for our
substitute.
IMPORTANCE OF SUGAR TO THE
STATE OF FLORIDA
(Mr. LEWIS of Florida asked and
was given permission to address the
House for 1 minute and to revise and
extend his remarks.)
Mr. LEWIS of Florida. Mr. Speaker,
I have recently, learned that a bill will
be introduced later this month which
- would effectively destroy the domestic
sugar Program. This action would
cause severe economic loss for thou-
sands of people in the State of Florida
and in any district.
Florida is the largest sugar-produc-
ing State in the United States. Grown
and processed In any district, sugar
generates $L5 billion in economic ac-
tivity per year lor Florida and ac-
counts for approximately 43,000 jobs,
But Stiffer IS more than lobs. Sugar is
? a way of life In the communities on
the south shore of Lake Okeechrobbe.
These communities would dry up with-
out the sugar industry because the
economic benefits of the sugar indes-
try has created an economic base for
Palm Beach County.
? I seriously doubt that those corpora-
tions who are lobbying for lower sugar
prices would generally lower the cost
of their products. History indicates
this has not happened in the past.
They would simply watch their profit
margins increase at the expense of the
American consumer.
I urge my colleagues to continue to
support the U.S. Sugar Program as
Passed in the 1985 farm bill. The farm
bill is working. Let us not tinker or
tamper with It.
The American farmer sees daylight
at the end of the tunnel, only because
of the 1985 farm bill.
CENSUS COUNT OF
UNDOCUMENTED ALIENS
(Mr. maktrAux asked and was
given permission to address the House
for I minute and to revise and extend
his remarks.)
Mr. DYMALLY. Mr. Speaker, re-
cently I celled to the attention of this
body my concern about misinforma-
tion on the effects of counting undoc-
umented aliens in the 1990 census.
Since my first statement on this
issue, it has come to my attention that
the constitutional argument in favor
of including all residents in the census
counts may be stronger than I first
imagined.
The distinguished chairman of the
Subcommittee on Civil and Constitu-
tional Rights, Congressman DON ED-
wawa of California, has pointed out
that because the 14th amendment spe-
cifically refers to an enumeration of
"Vereems," not "citizens," for purposes
of reapportionment, then it may take
a constitutional amendment to ex-
chide noncitizens from the census
counts.
Because the decennial census and
subsequent reapportionment of con-
gressional seats is governed specifical-
ly by the Constitution. the Census
Bureau cannot change administrative-
ly its policy of counting all persons re-
siding in the United States, regardless
of citizenship states.
And Congress is not in a position to
simply override the 14th amendment
by legislating an exclusion of undocu-
mented aliens from the enumeration.
I hope my colleagues will consider
this before cosponsoring any such leg-
bastion.
TRAGEDY OP U.S. MISSING IN
ACTION
(Mr. DORNAN of California asked
and was elven permission to address
the House for 1 minute and to revise
and extend Ins remarks.)
Mr. RORNAli of California. Mr.
Speaker, during the Indian wars on
the Plains, we had cavalry, buffalo sol-
diers taken prisoner by the Indians;
and some of them were kept for or 6
years.
That was a horrible existence. They
were tortured at night he the camp-
fire, and most were dead within a few
months, if not within a year, but a few
rare cases survived several years.
There has never been anything in
military, if not in an of our history, to
equal the tragedy of our missing in
action in Indochina, the suffering of
their families and the men, some of
whom I feel are still alive.
I commend this cover story 15 years
after the last We magazine cover
story on the men who were known to
be alive after they were captured,
what was called discrepancy cases.
That last Life cover was November
1972, and it had Lt. Comdr. Ron
Dodge on the cover, and he was never
returned home until his bones came
home a few years age, and I went to
his funeral at Arlington Cemetery.
My hest friend in the Air Force, and
I was the squadron intelligence officer
and also personnel equipment officer.
I issued him this jacket. We ferried
airplanes together in Europe. arid
David Iirdlieka was a known POW in
Laos for 5 years.
I commend an article by Bob
Eramers in the Register in Orange
County, and raise flags nationwide on
December 12 for these missing in
action.
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H 9528 CONGRESSIONAL RECORD ?HOUSE November 4, 1987
BRING HOME OVERSEAS IN-
VESTMENTS AND CREATE
JOBS IN AMERICA
(Mr. TRAFICANT asked and was
given permission to address the House
for 1 minute.)
Mr. TRAFICANT. Mr. Speaker,
America's top 100 multinational corpo-
rations have assets of $600 billion
overseas.
Their overseas profit alone was $27
billion in 1985. Think about it. If we
could bring home half of that invest-
ment, $300 billion, we would create 5
million new manufacturing jobs.
We could rebuild our factories and
start to cut our deficit, but let us face
It. As of now, the only program in
effect is to provide rustproof paint to
empty factories and empty buildings
with unemployed Americans in some
souplinesin the future.
0 1100
What bothers me is that if you
speak out on this issue, you are called
a protectionist. I say today that every-
one in this House is a protectionist.
You are either protecting America or
you are protecting workers overseas.
For years now we have been telling
our kids that America is the land of
opportunity, and unfortunately it is
still true, but only for those manufac-
turing plants in Japan, Taiwan, Korea.
Hong Kong, and Singapore. I think
America better do something about it.
INTRODUCTION OF RADIOAC-
TIVE MATERIALS TRANSPOR-
TATION ACT
(Mrs. MEYERS of Kansas asked and
was given permission to address the
House for 1 minute and to revise and
extend her remarks.)
Mrs. MEYERS of Kansas. Mr.
Speaker, this year there will be about
1300 shipments of high-level nuclear
waste and 2.8 million shipments of
low-level waste. In the future, this
number will increase as sites are
chosen for both high-level and low-
level waste disposal. This transporta-
tion of nuclear waste across our
Nation is fraught with the slim, but
very real, potential for catastrophe.
To lessen this risk, we must ensure
that nuclear wastes are transported in
as safe a manner as possible. Of the
safety inspectors employed by the De-
partment of Transportation, only one,
that's right one, is a specialist in nu-
clear matters. Therefore, I am intro-
ducing the Radioactive Materials
Transportation Act to mandate the
hiring of 20 additional safety inspec-
tors by DOT to specialize in the trans-
portation of nuclear waste.
This bill is simple and direct. It is in-
tended to prevent accidents by ensur-
ing that safety regulations are en-
forced and maintained. We need more
inspectors to license commercial driv-
ers, inspect the containment casks,
railroad tracks, major signals and de-
termine optimal transport routes.
Every State is affected by this issue.
I ask all my colleagues to support the
Radioactive Materials Transportation
Act.
U.S. CONTRIBUTIONS TO THE
UNITED NATIONS
(Mr. WEISS asked and was given
permission to address the House for 1
minute and to revise and extend his
remrks.)
Mr. WEISS. Mr. Speaker, today Con-
gressman JIM LEACH and I will be writ-
ing to our distinguished Foreign Af-
fairs Committee chairman, the gentle-
man from Florida, Mr. DANTE FASCELL,
supporting his efforts and urging the
conferees on the State Department au-
thorization bill to fully fund the
United States required contribution to
the United Nations.
Mr. Speaker, this issue trarviencis the
current budgetary situation. The
Reagan administration itself has
called attention to the fact that the
failure to meet our assessed contribu-
tion to the United Nations would
clearly violate our treaty obligations.
The situation is particularly embar-
rassing in light of the recent decision
by the Soviet Union to pay not only its
annual assessment to the United Na-
tions, but all its outstanding debts as
well. This leaves the United States as
the largest debtor to the United Na-
tions.
For the United States to be in this
situation represents a drastic depar-
ture from our historical role as a
moral leader in the company of law-
abiding nations.
Mr. Speaker, there is an urgent need
to strengthen respect for international
law and the capacity of the United Na-
tions to fulfill its responsibilities.
I urge my colleagues on the Foreign
Affairs Committee to join us in sup-
porting Chairman Fsscas. in full
funding for the United Nations.
QUESTIONS FOR CANDIDATE
GEPIKAR17T
(Mr. GINGRICH asked and was
given permission to address the House
for 1 minute and to revise and extend
his remarks.)
Mr. GINGRICH. Mr. Speaker, I
simply want to ask all of our friends
on the Democratic Party side and par-
ticularly those who support Dtcx GEP-
HARirr for President to talk with Con-
gressman Dan GLICKMAN about the
call-in show we did last night on C-
SPAN for an hour, to ask him about
the seven out of the nine callers who
said they would never vote Democrat
again, to ask about the tone of outrage
on the part of viewers who watched
last Thursday, who were disgusted to
see House Members raise their own
pay, give away tax breaks to every
Member of the Democratic leadership
and violate the spirit of the rules of
the House.
I would be glad to provide a tran-
script of the callers to the debate.
I think as the news media pays at-
tention and starts to ask Congresszom
GEPHARDT what he would do to clean
up the House, we will discover that
very rapidly it becomes impossible to
hide, raise your own pay, violate the
spirit of the =lea, give away tax
breaks to the big boys, and go home
and claim you did not mean to do it.
PUT THE TRADE DEFICIT ON
THE AGENDA
(Mr ALEXANDER asked and was
given permission to address the House
for 1 minute and to revise and extend
his remarks.)
Mr. ALEXANDER. Mr. Speaker, yes-
terday the dollat plummeted again
when traded against foreign cturen-
cies, losing several Increments in its
value in Japan, GermanY, and the
other major markets around' the
world. This was another signal to the
President end to Members of Congress
who are attempting the so-called eco-
nomic summit that we must pUt the
trade deficit on the agenda.
The budget deficit which has Cori-
Burned most 'of the attention IS only
part of the prObleint maybe half the
problem. TO 'address the entire prob-
lem, one must put the trade deficit on
the agenda in order to restore the eco-
nomic business of America.
EMPLOYEE POLYGRAPH
PROTECTION ACT
Mr. WHEAT. lifr. Speaker, by direc-
tion of the CoMtnittee on Rules, I tall
up House Restautlob 29$ and ask for
Its immediate consideration..
The Clerk read the resolution, as fol-
lows:
IL Ras 295
Resolved, That at any time after the adop-
tion of this resolution the Speaker may,
pursuant to clause 1(b) of rule XXIII, de-
chute the House resolved Into the Commit-
tee of the Whole Howie on the State of the
Union for the consideration of the bill (H.R.
1212) to prevent 'the denial 'of employment
opportunitles by , prohibiting the use of lie
detectors by employers involved in or affect-
ing interstate commerce, and the first read-
ing of the bill "ball be?dispensed with. After
general debate, which shall be confined to
the bill and which shall not exceed one
hour, to be equally divided arid controlled
by the chairman and ranking minority
member of the Committee on Education
and Labor, the bill shall be considered for
amendment under the five-minute rule. It
shall be in order to consider the amendment
In the nature of a substitute recommended
by the Committee on Education and Labor
now printed in the bill as an original bill for
the purpose of amendment under the five-
minute rule and each section of said substi-
tute shall be considered as having been
read. At the conclusion of the consideration
of the bill for amendment, the Committee
shall rise and report bill to the House
with such amendment'''. MAY have been
adopted, and any Member may demand a
separate vote in the House on any amend-
adapted In the' Committee of the
Whale to the bill or to the committee
amendment in the nature of a substitute.
The previous question shall be considered as
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November 4,1987 CONGRESSIONAL RECORD --HOUSE
ordered on the bill and amendments thereto
to final Passage without intervening motion
except one motion to recommit with or
without instructions.
The SPEAKER pro tempore. The
gentleman from Missouri [Mr. WHEAT]
Is recognized for 1 hour.
Mr. WHEAT. Mr. Speaker, for the
purpose of debate only, I yield 30 min-
utes to the gentleman from Missouri
[Mr. TAYLOR], pending which I yield
myself such time as I may consume.
(Mr. WHEAT asked and was given
permission to revise and extend his re-
marks.)
Mr. WHEAT. Mr. Speaker. House
Resolution 295 is an open rule provid-
ing for the consideration of ll.EL 1212,
the Employee Polygraph Protection
Act. The resolution provides for 1
hour of general debate to be equally
divided and controlled between the
chairman and ranking minority
member of the Committee on Educa-
tion and Labor. The rule further
makes in order the amendment in the
nature of a substitute recommended
by the Committee on Education and
Labor and now printed in the bill as
original text for the purpose of
amendment. The substitute shall be
considered for amendment under the
5-minute rule and each section shall
be considered as having been read.
Finally, Mr. Speaker, the rule pro-
vides for one motion to recommit, with
or without instructions.
Currently, numerous Americans are
being subjected to polygraph examina-
tions as a condition for obtaining and
maintaining employment. Studies con-
ducted by the Office of Technology
Assessment indicate that these exami-
nations are no better than 85 percent
reliable. Thus these tests are tuireli-
able in determining with full' accuracy,
the honesty or dishonesty of an em-
ployee.
H.R. 1212 would prohibit the arbi-
tory and indiscriminate use of poly-
graph examinations in preemployment
screening or in the conduct of employ-
ee relations. It would also prohibit an
employer's use of indirect suggestions
that an employee submit to a lie detec-
tor test as a condition for employment
and the bill would make it unlawful
for an employer to discriminate
against an employee because he or she
exercises their rights as provided
under this act. Finally, Mr. Speaker,
this measure requires that employers
post notices informing employees of
their rights under this act imposes up
to a $100 per day civil penalty for fail-
ure to comply with the posting re-
quirement, and imposes up to a
$10,000 civil penalty for other viola-
tions of this act.
Mr. Speaker, H.R. 1212, is a measure
which protects the rights of this coun-
try's citizens to work in an environ-
ment free of indiscriminate question-
ing. I urge that we adopt the rule so
that we may proceed to consideration
of this measure.
Mr. TAYLOR. Mr. Speaker, I yield
myself such time as I may consume.
Mr. Speaker, House Resolution 295
is an open rule under which the House
will consider a bill prohibiting the use
of lie detector tests by all private em-
ployers not involved With intelligence
and counterintelligence work for the
Government.
The rule makes the Education and
Labor Committee amendment for H.R.
1212 in order as original text for the
Purpose of amendment under the 5-
minute rule, and the committee
amendment is to be considered by sec-
tions.
Last, the rule provides one motion to
recommit, with or without instruc-
tions.
Mr. Speaker, this bill made in order
by the rule is highly controversial.
Judging by the number and wide vari-
ety of amendments that have already
been filed, it is apparent that the
House will spend a considerable
arnOunt Of tittiii perfeetbig the'bill. ?
Mr. Speaker, I can find no good
reason why private sector employers
should not be allowed to continue to
use polygraph testing when screening
potential -employees. Polygraph test
results are currently used by various
government agencies in the most sen-
sitive areas, such as national security
and criminal law enforcement.
Last year, when a similar bill was of-
fered, the House voted to permit poly-
graph testing in the private sector for
those that work in the private securi-
ty, utility, pharmaceutical, day care,
and nursing home industries.
Mr. Speaker, under this open
we will again have the opportunity to
amend the committee bill. I support
this rule, and urge its adoption so that
the House may proceed to 'bring up
the bill.
Mr. Speaker, I yield 3 minutes to the
gentleman from Wisconsin [Mr. Gulf-
DERSONL
(Mr. GUNDERSON asked and was
given permission to revise and extend
his remarks.)
Mr. GUNDERSON. Mr. Speaker, I
simply want to rise in support of the
rule and the opportunity that it pro-
vides for us to have an open consider-
ation of this legislation. As the rank-
ing Republican on the Employment
Opportunities Subcommittee which
has jurisdiction over this legislation, I
have had the opportunity over this
session and previous sessions to listen
to all the debate regarding this par-
ticular piece of legislation as it comes
before us.
There is no question, as the gentle-
man from Missouri said, that there is
a great deal of controversy surround-
ing this legislation. Polygraphs are
controversial means by which we ques-
tion employees and prospective em-
ployees in our society today. Forty-one
States have recognised that controver-
sy and have panted legislation. As a
reSult and deilpite that, the legislation
beforClis today Seeks to preempt every
State la** the land and to determine
that We at the top at the Federal level
knovi best how State legislatures, how
119529
local goVernments, and indeed how
private business across this country
Ought to conduct themselves in this
regard
Some would suggest that we ought
to regulate the testa Some would say
we ought to limit the exposure of the
tests. The legislation in front of us
today seeks to ban totally the use of
polygraphs In the private sector, with
only a couple exceptions.
I would suggest to my colleagues,
Mr. Speaker, that this is a good rule
because it allows us a long and open
debate on the legislation that is before
us. I would call to the attention of my
colleagues that it is an open rule
which brings to Us, however, a very
contentious and very controversial
piece of, legislation.
Mr TA.71,01t. Mr. Speaker, I have
no further requests for time, and I
yield back the hs,lance of my time.
_ Mr. WHEAT. Mt; Speaker, it is clear
that the rule does provide consider-
ation for a bill over which there is sig-
nificant disagreement, but the rule
provides ample opportunity for dis-
agreement and discussion of all the
issues involved.
Mr. Speaker, I have no requests for
time and move the previous question
on the resolution.
The previous question was ordered.
The resolution was ureed to.
A motion to reconsider was laid on
the table.
The SPEAKER Pro tempore. Ptusu-
ant. tit U(1100 1140014timi 295 and nue
=II; the Chalk declares the Rouge
In the Committee of the Whole House
911 the &ate of the Union for the con-
sideration of the bill, H.R. 1212.
0 1114
Is THE COMMITTEE OF THE WHOLE
Accordingly the House resolved
itself into the Committee of the
Whole House on the State of the
Union for the consideration of the bill
(H.R. 13121 tp prevent the denial of
employment opportunities by prohib-
iting the use of lie detectors by em-
ployers involved in or affecting inter-
state commerce, with Mr. GONZALEZ in
the chair.
The Clerk read the title of the bill.
The CHAIRMAN. Pursuant to the
rule, the first reading of the bill is dis-
pensed with.
Under the rule, the gentleman from
California Mfr. Mumma will be rec-
ognized for 30 minutes and the gentle-
man from Wisconsin [Mr. Gimuzasonl
will ne recognized for 30 Minutes.
The Chair recognizes the gentleman
from California (Mr. MARTINEZ].
? 0 1115
Mr. MARTINEZ. Mr. Chairman, I
yield myself such time as I may con-
sume.
(Mr. MARTINEZ asked and was
given permission to revise and extend
his remarks.)
Mr: MARTINEZ. Mr. Chairman, as
chairman of the Employment Oppor-
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953.
CONGRYSSIONAC WORD HOUSE Argetettee 4; Mir
trinities Subcommittee, I rise in sup-
port of H.R. 1.212 banning the use of
Ile detectors in the private workplace.
H.R. 1212 came out of my subcom-
mittee and pained the House last pear
238-1V3. This year vamps from the
American Medical Association. the
American Psychological Association,
and the legal establishment all testi-
fied that there is no basis of scientific
validity -whatsoever that the Ile detec-
tor works. Last year We heard from
the bead researcher of The Congres-
sional Office of 'Technology Assess-
ment study on the issue who thor-
oughly debunked the stalidity of the
He detector. Scientifically, the evi-
dence is in. the polygraph no more
effective for discerning truth and tits-
honesty than a black 'voodoo box.
Gentleman, I, wish that there was Is
scientifically reliable measure, so that
businesses van effectiveiy deter the
loss of their preterity and profits.
However, / ran only 'offer 1012te Drag-
matte advise to employers who face
-this very real preiblere: the wand per-
sonnel and managernesst 'Methods of
therregh baekgstemd checks and
apply marrow audits of inventory and
cash. Not only are these methods
cheaper bet they can mere effectively
target theft than the isotherm& and
time-consuming lie debeceor emehines.
In midi*" companies all scold trou-
blesoraerlingstkin that are bah* won
mon and mote by lire eemitheirdng
employees.
Tni? prollfeestion of polygraph test-
? te 01ir itatkin is effecting 2 to I
otfilOn Americans llwma at s
gliperoent &meg vibe, which Is
widely dhputed, some MAN *Merl-
cans annually will be tale* mowed
cif crimes and thefts that they slid not
commit. The sad part is, the chronic
thief and
the which cavrently hair CisiUsleed-the
business consnainity into robing cow
histrument and proems that is Agony
flawed and causes lanotenek ham to
innocent workers. Polygraph- use is
available now, but it lam net effective-
ly deterred or detected the ongoing
theft in our wakening. -
Finally, I do want to point out that
lassos from theft in the workolace
should net be attributed &ley to the
dedicated workers of theconslimw. hist
often swe the remit of lasessenteat
level and whiee-cellar pilferage mad
onniessiement. Them managesamit
level and white-collar officials one eUr?
rently exempt from the practice of
polygraph testing.
awl sta consumes to =Wog Sla
on this bill and rote web* the weak-
ening amendments offered today.
Mr. CIIINI:411B8ON. Afr.litrairrann, I
yield easigt iltalautaa _ _
(Mr. OUNVERSON ask& one wee
given permiegois to min and extend
his remarks.)
Mr. ClIDIDER8021. Mr. Chairman,
this is not the most controversial piece
of legislation that we will deal with is
this Congress, but It is way controver-
sial, and it is not the most important
piece of legislation that we will deal
with in this Congress, but it is impor-
tant.
I would like to take a, little bit of
time today to provides seine back-
ground on where we are and where
suggest this bill may lead us. Pinot of
all, the bill before es, HA. 1212. is
wrong because of its approach. There
Is ao debate that the polygraph las
been lateit koarePerly *cress this coun-
try in certain cases. So we have vari-
ous options. We can regulate its use,
we Can limit its use or we can totally
baa it.
UnfortunatelY. the 10111114104 helm
us today token the absolute ultimate
extreme or totally thalling the We Of
PoInTillaae except An two belated ex-
emptions bi the private motor,
segoad.koribong this sasseaah it re-
Aga the fact that 41, of the le States
plus the Meth& of C lIu,..have al-
ready Ohio the Laktektit to regulate
in this area. It is one Wiwi for the
"edema Govenement to act when tibe
agates' am Miming to do their Joh But
when 41 States and the POWs& ektCe-
lumbia have already token it upon
thentselvea
to PrePorrlY regulate .as
they see lit for the conduct at business
In their ilitottk why 410 we ot the Feder-
at level mug to erase In ,to
State legigatages 41 43.wilenered you
are all mama we M the "Siva' 'awl
knew ;Altman* you. -
That seta Into my smond oeMento
which is hswortior- This hishiatle*
Oef0re 44$ *AM *MOWS the Ose Of the
polygraph for the highest national ge-
tarttlf in OW Muntry. We it tor
the Penirtotinat Of Defeeliem we Slow
it for the CIA, we say for the Root Iso-
try it *Olg to use the Peineraph. But
it is not OK for the private met& to
use It Maisie* illtooliDieftbac Aim
does one ?WO* that kind of ineotasist-
racy hack home to onesh consititheats?
We tell thePepartment of/Wow in
this leskilsipuoiat they aon use it be-
came nuclear we, is too risky., But
in this logielellas We tell *ear public
the ODUntal gaitainuatetwe It
In lienne of orAgeric power bemuse At is
Lae unreliable. We tell sitsA, yen can
use it totems oi high technology. but
we tell every grind* figment; *ileum
foundation in the country you ceassot
um, At in *ekes of Prittecgag the Atigh
technology in the higethaelegy of
your industry because it le ao waren-
What kind of 1110801110 de we send
hem toikur tfltk that kind at hitnoarkw
and inatlisdetoom7
4egialonag *Sara us today sloes
not 1e Anis inkat-.4we 4114,1visa
Sok sea-
it tneernot builds* thato.114 still
=Kb* 4 h. Ale 41 111?1541Teek
arso Of 41W11144 piehIIt..the me
Of tha: Otoknatabb00 owiwt our
musing imam Midelsta sad one 484Y
care young children. and in the aecari-
ty induitriot with those gentlemen
and women who carry rens in the pro-
tection of private badness and finan-
cial inaltritionsond btemployee theft.
There Is ever $411 bnlievi 'a year of em-
ployee theft in stir Nation, ,wd pt
this, over VASS a esthete 10 etedee by
etepleyeee train the menneles they
vett with. 'Vet this leghlatiOn stirs
evert after thaterstiloree is tel the job
and has She work record. we ,are net
taint te the polygraph as one of
the many iiireibiratorr took to trY to
get at that, kind of employee theft.
Then, sit I mentioned earner, the
Drug lentorcetnent Admirdstration.
which sweate The nse of the poly-
graph when properly admIlllstered,
will tell you that over 1 million doses
of drugs are stolen earth year, and yet
this legislation bans testing.
I "multi hope today during not only
the general debate but , during the
argendment process that we would t1:1,
to pursue the, sesponsible use of the
imintalth.lthich is and ought to be a
proper and lagItheate concern for each
andemry one of us. We should protect
against the abuses in testing. However,
at the same lime we must recognize
the findings of the Wide of Technolo-
gy Assamiment study of 1013 which
said megninyful scientifie evidence of
the 's validity could be
found in the area of itmestigatiess of
apecific eriminal incidents.
Jraziler this year. on May 11, we ito?
*Aphid an mwendreent or the gentle.
man from Pieria& to establish a per-
manent pyph Weal= tor nation-
al defense laY a Tote 44 to 44 On
Jens 16 at tale Fear hir soieOf 414 to
notialug we, sweated an. soneriswest
SY the gentleman:rem fleaddli.
On Juise le of this year by a gots of
414 to nothing we said that we ought
to establish minontimmtim embassy
auddiplomatic seetnity grogram
Mr. Clubman. them am einsoni to
sonsAder regulation. There Mato Asti-
:Motion to taketheegrane* the leg-
ligation before We-aak yen to listen
and debate, to participate and support
the imeiadinelate Apo that if we are
mini to hanossammdates as these 41
age legiaistures, west least do so on
a remonableand inanstent basis.
Mr. MARTROZ.. Mr. Chairman, I
Yield I blinks/twine gentleman from
Georgia Oft. Damn%
.(Mr. abiliDEN liked and was given
geriabilion tarot* and extend Ns re-
marlm.) ?
Ur. swum Mr. 'Chairman, I
thank the gbableaum feign California
feetlfieldisetwe this ham
Mr. Chairinan, I rise In atrOtIg and
alias* MIPadtion W the Petygraph
Peetettlen Ant. XX. 1212.
BOOM Leek bt. eine
? egeositionto the in itspresent
farm I waint *take* mornent to cam-
? M7 .40Ammto. the ? featileiman
from Montana, Mr. Poe Viragagia.
soy' good faisad? and the ottairman of
the Itroployment eintertstlitv Bah-
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November 4, .1987
CONGRESSIONAL RECORD -- HOUSE ' H 9531
committee, the gentleman from Cali-
fornia (Mr. MARTINEZ], for once again
bringing this issue to the floor of the
House of Representatives for debate.
There is no question that this is a sub-
ject that should and must be dealt
with by this Congress, and I look for-
ward to the debate. And even though
we disagree, Mr. Chairman, on a
number of the provisions in the bill,
and in fact we even disagree on the ap-
proach to be taken, I think special
commendation should go to the gen-
tleman from California (Mr. Mari-
NEE] and the gentleman from Montana
(Mr. Wn.usiss) for the very fair
manner in which they have permitted
the debate to go forward, especially in
the Rules Committee, where we have
now received an open rule so that
whatever is the result of this House,
those of us who oppose the Polygraph
Protection Act cannot say we have not
had a full and fair hearing.
So it is with this statement that I
would like to point out to the chair-
man of the full committee that the op-
ponents of this bill have been dealt
with fairly, and I am most grateful to
the gentleman from California [Mr.
MARTINEZ], the chairman of the sub-
committee, as well as the gentleman
from Montana [Mr. Wn.r.rams], for
giving us a chance to fully and com-
pletely debate this very controversial
topic.
Mr. Chairman, in the very famous
words of Alexander Haig, "This is not
an experience I haven't been through
before.' Or, in correct grammatical
terms, we have previously discussed
this issue at great length.
This House haS gone on record as
supporting the use of polygraphs. Last
year during debate of the Polygraph
Protection Act the House said poly-
graphs are proper for all employees of
government agencies, at all levels of
government, for consultants to the na-
tional security agencies, for employees
of drug-related firms, for security serv-
ice employees, employees at public
utilities, for children's day care center
employees and nursing home employ-
ees.
Incidentally, I will offer an amend-
ment at a later time to exempt em-
ployees of children's day care centers.
Just 8 months ago, Mr. Chairman,
345 Members of this House of Repre-
sentatives said polygraphs were legiti-
mate tools for ensuring our national
security. Just 5 months ago the House
voted unanimously to establish a poly-
graph program for diplomatic and em-
bassy security personneL
The argument that the polygraph is
some type of hocus-pocus, or witch-
craft, or a torture machine has firmly
been rejected by the Members of this
House. We may not want to admit it,
but by our previous votes we have le-
galized this machine. We have, and
there is no denying it.
Mr. Chairman, I submit that if the
polygraph is a legitimate investigative
tool for these few industries and for
all government employees, it is a le-
gitimate investigative tool for all pri-
vate industry.
The gentleman from Florida (Mr.
Youncl and I will once again offer a
substitute amendment which recog-
nizes the inconsistencies in the ap-
proach taken by the Committee on
Education and Labor. Our substitute
takes the necessary steps to correct
any abuses that may be occurring
while still granting the private sector a
decision.
Mr. Chairman, every individual in
this Nation is affected by the practices
of dishonest employees, just as we
would all be affected by individuals in
the Department of Defense or in the
Department of State who practiced es-
pionage. This House has taken steps to
ensure our national security is not
jeopardized, yet we are considering
eliminating the very tool used by these
departments by passage of this legisla-
tion.
Why is it acceptable, Mr. Chairman,
for the polygraph to be administered
to an employee of the Department of
Agriculture or the Federal Aviation
Administration and yet be disallowed
to the local grocery store owner? Why
can a city or county employee in my
district be polygraphed, but a bank
teller or bus driver cannot be poly-
graphed?
My Point, Mr Chairman, is that we
are extremely inconsistent to allow
the use of polygraphs in the public
sector on the one hand and to disallow
them in the private sector on the
other hand.
I say. Mr. Chairman, if there are
abuses in the system let us correct the
abuses. Let us not eleminate the
system.
I urge Members of this body to SIM-
port the substitute amendment as a
reasonable and measured approach to
this issue.
Mr. MARTINEZ. Mr. Chairman, I
yield 5 minutes to the gentleman from
North Carolina Mr. NEW,
(Mr. NEAL asked and was given per-
mission to revise and extend his re-
marks.)
0 1130
Mr. NEAL. Mr. Chairman, I have
several questions concerning the wide-
spread use of polygraph testing and I
would like to engage the opponents of
this legislation Ina little colloquy if I
may.
My concerns are on two levels. The
first level is this: It seems to me that
the widespread use of polygraph de-
vices turns the American system of
justice on its head. As we use these in
preemployment screening and even in
other areas, criminal investigations
and so on, it seems to me we are essen-
tially saying to people, "We assume
you are guilty and we want you to
prove your innocence."
And the other area of concern to me
is the wide body of literature indicat-
ing that these polygraph gadgets are
in fact rrot lie detectors, that there is
no clear indication that these things
do what they say they are going to do.
The fact is that polygraph tests are
not reliable.
The problem here is an obvious one;
that there are ways of fooling these
gadgets. So a person skilled in deceiv-
ing the gadget might be entrusted
with very important information, for
Instance, in the area of national secu-
rity or other important security infor-
mation.
I would welcome the chance to hear
an answer to these questions.
But first let me elaborate on this
concern: By depending on these gadg-
ets, which Senator Sam Ervin from my
State once characterized as "modern
day witchcraft," we will be letting
people into positions of high responsi-
bility and make available to very
clever people' our most important na-
tional security secrets, and on the
other hand, since these things are in-
herently unreliable we will be convict-
ing slot of innocent people.
Mr. DELAY. Mr. Chairman, will the
gentleman yield?
Mr. NEAL. 1 yield to the gentleman
from Texas (Mr. DELAY].
Mr. DELAY. I thank the gentleman
for yielding.
Mr. Chairman, I will attempt to ad-
dress the position of the gentleman
that the polygraph is fallible.
Did the gentleman vote ' for drug
testing? And does the gentleman feel
that drug testing is not infallible? Be-
cause if drug testing, as we know it, is
fallible, then the same idea should be
taken by the proponents of this bill
that we, ought to avow out drug test-
ing .because it is not 100 percent accu?
rate. -
Mr. MAL. I do not recall any votes
on drug testing at this moment, but if
drug testing is not reliable, and I just
do not know about that at this point,
and that is not the subject under con-
sideration this morning, but if it were
not reliable then I certainly would not
want to subject people to these unreli-
able tests.
? Let me say one other thing about
drug testing: Insomuch as we use drug
testing in a broad way to say to people,
"We are assuming you are guilty of
some illegal activity and it is up to you
to prove your innocence," I would be
very leery of it. We have a responsibil-
ity here, my friends, no matter what
the State legislatures around this
country have done, of protecting the
C,onstitution. And the Constitution is
clear concerning our system of justice.
It is what separates us from the totali-
tarian system.
We assume our people to be inno-
cent until proven guilty; under the to-
talitarian systems people are assumed
to be guilty and it is up to them to
prove their innocence. That is precise-
ly what I believe the widespread use of
lie detectors, so-called lie detector
tests, would be doing.
Mr. DELAY. If the gentleman will
yield further, does not the polygraph
give the opportunity to those employ-
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119532 CONGRESSIONAL RECORD =IIOUSE
ces who have been wrotwftdly accused
of stealing or raping or 'Whatever they
have been accused of, the opportunity
to nee this test procedure Von with
other. types Of extuninatioast Does not
the polygraph give the opportuety, as
it has in this Nation for yeas, to clear
their item% keep then out of Jail,
keep their Me and to keep their repo-
team? II think It abottld be knave
that the polygraph can also be teed as
a tool to prove that son ?are lanseent.
Mr. NEAL. I ant net mare of that.
Let rae ask the gentiewernto desedbe
that scenario. Do you noon where an
emplayee teeniest' a lied:et/chit test2
her..DelskY. That isciterect.
Mr. MAL. That Is a different glee-
Mr. Dada. No, the gentleman
would destaoy any industry that relies
en polygraph testing. You would not
be able to seek employment ozith a
company that facilitates PoltgraPh
testing becalms these will not be any
companies in business,
Mr. NM. Well, k is my under-
standee this legislation prohibits the
screening use of thelleiletector test..
M. ,OIMIDER80)1. Mr. Chairinan. I
yield 4 minutes to the dialleguiehed
rankingan o3ember of the ComMittee on
and lather. the gentleman
from -Vermont (Mr. 3srrotiltsl.
(Mr. JEPTORflS *eked acid was
given permistion to revise and extend
his inputs.
Mr.701.ORDS, I thank the gentle-
man for yielding time to me.
Mr. Chairman, I rise in /Aro= sup-
port Of the bill beihre ns. The proteC,
tions ft vitt provide or aortae ave
long overdue. My only regret is that
our colleague, Stew liclOcute.v, is not
with )as tcradd his voice to ens.
He *ems the:spice of this came,
a good friend. We ere here 'today
largely due to his hard work over
moor Yeas.
There Will 1:10 &ROA bet let of dis-
cussion through the 'course of today,
as we debate this Mil and the varlets
amendments, but it all regliebeihr
down to one ample question. DO noty-
graphs werk?estwehilir in =reemployMy -
ntent screening/
reavonte, and the response of
every obieetive scieetifie Observer,
that they do not work in the employ-
ment totting.
We are not here today to debate
whether to not there is crime In the
workplace. There is crime; by vitae
collar workers 'as well as blue. But the
fact there is crime does net 'edify the
unbridled ese of the polygraph.
On just about every other Ishbr
you -will hear the calla to extend the
blirs 111'0,18t012$ to Congress. I any this
not to ireiltrielltere efforts. became
helMen -to beget of them. eat the id6
lenee eat this polygraph ism is deaf.
ening. No one seems to mantle -require
preemPloyment sereerting or Met:there
of Congress-
Thk. in fact, is where the ewe
Mit:, of polygraph teats ere
tered by private employers. Such
screening amounts to a tinting expedi-
tion, and often not a very lengthy one.
This bill would prohibit the 10-minute
quickie and all other polygraph tests.
But the Darten-Yeung substitute and
the various industry exemptions that
' will be offered do absolutely nothing to
prevent the cheap, quick' polygreph
teat.
The substitute, for example, says
that no more than etw earn can be
scheduled per hour. But that language
raises mere questions than ft answers.
There is nothing' ht that language to
compel that the test lest for an hour,
and preetnnably unsehedUled wafic-eit
business coed be Conducted.
The 'fact is that you cannot vegetate
the use of -eortirgraplis. It has been
tried by the States, and these efforts
have failed. lietforeentent is virtually
hoes:able, enteneloyers circumvent
the Ian by teeing employees' in one
State and then transferring them to an-
other. Negulating the polygraph does
nothing to retirees its inherent flaws.
In feet; Pelegraph usage may actualty
increase once emideyers believe the
Clover:intent belt Stole er Pederaklias
omelette. Stange. The 'Darden-Young
substitute ticloneWledges the problems
With polOgraphit,4itg seeks to Denver
tate their/use* theprivate sector.
-
One of the most troubling things
about polygraphs Is their goreetse
impact.; 'The geinatific 'evidence in&
eateethey ave seem likely to tar an in-
nocent pergen Oa gun* than are ote
Mentify a thief:, de b)nest persist is
concerned about telling the tenth, a
Mar built. Vinyls/um the lam ids
weild - pima gigolpgraph With fiyiag
agora. Decree Wadmington might
have had trouble.
Iasi the stens tindaseental question
ex Why try toregulate assachinie that
does not nark? The Office of Tecentol.
ogy Assessment thoroughly studied
the polyginger Med lona no :evidence
that it lautang ealiclitrin the ernieleir-
ment setting..Aside-faella ilitateduby
the potrumph indent% we *bitable
scientistilundetind it to be suchiotwe
accurate than flipping a coin. Theit is
why both the American Medical Asso-
ciation and the American Psychologi-
eel Al etepeekthe JAIL
The eeisetifle 'theory * bathed by
our real weir* eXpeeionee. Althouldt
you twin bear statiothe an the losses
suffered by benne 'essall' these tomes
are very real?the one statistic you all
net hear ?is how meek the pargetph
reduces those loam. Detail theft is no
rester in Vermont. Where the pep.
graph is banned, Montt Is 43earght,
where it regetlerbed; Dante %Owes are
no greater in New 7erser,' Whew polyi.
graphsare outlet/ed. than the, are in
Nevada,-WhIch heir fogrentrietions.-
' There are deal, letter ways ,t?
limit theta froth both entployer
and an employers nerepectire.. Than
by etrWa' aerneauelfritelreberaltk
At I eNtnet,ftlierttente challer sitorrar-iim-pasofitnifilliiirt an thellart-of
' Iliket4ematireseent
cooperation.- the grentift -use of ger.
, , ?
November 4, Isar
graphs in the private sector seems to
head to in exactly the wrong direction.
Indeed, many employers have deliber-
ately banned their use. We do not
need wilygraphe in a free society like
Ours. I urge you to Ian twin Moat-
ing H.fl Int end refrain!' Vreakenhts
amendments.
The CHAfitigA.N. The gentleman
from California IMr. Mawrzaszi has 17
minutes remaining And the gentleMan
from Wisegist3 Mr Ourtegraort3 has
20 minutes nettudning
Mr. MAETINEZ. Mr. Chain:Ian. 2
yield 3 soinuteeand 70 seem* to the
gentleman from Texas IM. 13noona
-(Mr. BROOKS asked and Vas Oren
permission to sense and extend Ms re-
nt/aim)
Mr. BROOKS. I thank the gentle-
man for yielding.
Mr- Chairntan, I rise in strong sup-
port of H.R. 1142?the Imployee Pair.
graph Protection Act of 1917. This hill
will eliminete the widespread and
growing tee sr abcalled lie defector
teats as a-condition of employment in
America. it oral not Work their nasty
laW ealtoreratent agendas for *chill
twestigations. Rather, it is alined at
Mopping the growing abuse a 'di-
graphs used tie screening tette- torero,
pioyment. lirivate employers Inereao.
trey are lording their employees to
take such testa as a condition of 'em-
ployment even tweet they ;are not
ettePeeted of any wranidoing. This
practice is un American?It alsoteeit
Overtone to be guilty until they Prove
Their innocence.
MY views nflnOlignuiha have been
Orel:Urea over many seers. as a
Member of the Mouse amendment
Operations Conamittee. This comt-
tee has ovemeen the Governments
Polignoah DrOgrelas .since the early
3.900% and- Asietronelif recommended
against the use at polygraphs for
screening to the Federal Government
An tour seinamte`twoorts.
Serena yews .A.4 the Office of
Technology Amessment surveyed the
scientific literature on polygraph oar
Why tor the Government Operations
Committee. le its report, the OTA
cerrolnded *at there was no scientifi-
cally imeevtabie seedy to support the
Me of Prditerehe for scosiming puz.
poem mid that any gelidity that the
polygraph Seel gray hare for specific
incident use would likely derease dm-
heasereentegeenteet.
Ina regret nye*" iturOTA beached
similar concludes. Intact. they eked
new steam width aerkessly question
the weidiW if nelygrapit testing.
Using figures groat *National Ilecidin
&goner grogram, politgraphs generate
ad armor relati01 Xi percent. That Is,
errors twee swede *early one-third of
the time.1Purther, other laboratory re-
search indicates that thole 'trained in
simple etvingeeimastues to boat the
pegysraph eteenseenfulla feedbag the
test er preineing on ineceelustre
result 115 ger:mg of the time.
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November 4, 1987 CONGRESSIONAL RECORD ? HOUSE
Since OTA's studies, many propo-
nents of polygraph use have backed
away from their claims of high poly-
graph validity. Instead, they argue the
concept of utility. They point to nu-
merous instances when the polygraph
exam, or the threat of the exam, has
been useful in eliciting important in-
formation or even confessions.
We should not confuse validity with
utility. There is no question that the
polygraph can be a very intimidating
tool and may have some utility in that
regard, lust as the dunking stool, the
rack, and the firing squad have had in
past centuries.
That would convince you to confess
to damn near anything, would it not,
Congressman?
Mr. DARDEN. Bir. Chariman, will
the gentleman yield, the distinguished
chairman of the Committee on Gov-
ernment Operations?
Mr. BROOKS. I yield to the gentle-
man from Georgia (Mr. Mumma
Mr. DARDEN. I thank the gentle-
man for yielding.
Mr. Chairman, would the distin-
guished chairman of the Committee
on Government Operations agree that
as the chairman of the Committee on
Government Operations the chairman
has very broad power* and could well
have brought legislation in this body if
he believed so strongly that the poly-
graph is witchcraft and torture, to
eliminate its use throughout the coun-
try, not just in the private sector but
for Government employees as well?
And why has not the distinguished
chairman brought legislation here to
abolish the use of this machine to pro-
tect Government employees?
Mr. BROOKS. I would in one
second. We did not have that jurisdic-
tion. We had jurisdiction to examine
what they are doing, but not to pass
the legislative authority.
Now the Labor Committee has got it,
and Judiciary may be able to get into
it by eliminating the production of
this kind of junky equipment, as being
illegal advertising, you know, holding
out that it would do something. I am
looking for another way to introduce
the bill.
As former President Nixon said
about polygraphs on the Watergate
tapes, 'I don't know how accurate
they are, but I do know that they'll
scare the hen out of people."
This elaborate con operation should
not be allowed to be institutionalized
as a feature of our Nation's workplace.
It is inherently offensive to American
concepts of justice.
Last year, the world's largest associa-
tion of psychologists condemned the
widespread use of polygraph tests for
screening purposes. The American
Psychological Association concluded
that conducting such tests by psy-
chologists could be unethical. The
group found the scientific evidence re-
garding the validity of pdlygraphing
to be "unsatisfactory and particularly
poor concerning polygraph use in em-
ployment screening." They recognized
the "great damage to the innocent
persons who must inevitably be la-
beled as deceptors" Ia such screening
situations.
Recently, a scientific council of the
American Medical Association has also
questioned the use of polygraph test-
ing.
We should not allow passing some
bogus lie detector test to become a
condition of employment in this coun-
try. I urge you to vote for R.R. 1212
and against all weakening amend-
ments.
0 1143
Mr. MARTINEZ. Mr. Chairman, I
yield 1 minute to the gentleman from
Minnesota (Mr. Przeryl.
(Mr. PENNY asked and was given
permission to revise and extend his re-
marks.)
Mr. PENNY. Mr. Chairman. I urge a
"yes" vote on H.R. 1212. the Employee
Polygraph Protection Act and a "no"
vote on the Darden-Young substitute
and other amendments.
R. 1212 prohibits the use of a
polygraph in most employment situa-
tions. Currently, 10 States have simi-
lar statutes. In addition. 12 States go
even further by effectively banning all
use of such tests by employers.
Plain and simple?if you believe a
polygraph is at imperfect tool and
that its results may be unreliable?
then you should support If.R. 1212
and oppose amendments.
The Darden-Yournr stibstittite allows
the use of polygraphs in most in-
stances but institutes a Govermnetit
regulatory systein. Oct that?Govern-
ment regulations! I can't believe the
business community prefers this tub-
stitute.
The rights of America's workforce
are at stake in this vote.
We should make it clear that the
polygraph is an Inappropriate job
screening mechanises.
Vote "no" on the Darden-Young big-
government and redtape substitute
and vote "yes" on the bill to protect
employee rights.
Mr. GUNDERSON. Mr. Chairman, I
yield 4 minutes to the -distinguished
gentleman from Iowa Mr, GaMorl, a
member of our subcommittee.
(Mr. GRANDY asked imd?was given
permission to revise and extend his re-
marks.)
Mr. GRANDY. Mr. Chairman, I
thank the gentleman for yielding time
tome.
Mr. Chairman, today the House Is
considering an issue baaleto the Amer-
ican tradition of civil rights. The pre-
sumption of innocence until guilt is
proven has been a right Americans
have long protected. It la a presump-
tion which lies at the very heartof the
American legal system.. Furthermore,
It is a right to which this body Is
obliged to uphold.
I am sure we are all .aware of the
many violations et privacy rights
which have ooeured front the abuse- of
the polygraph. The lives and repute-
H 9533
tions of countless huMeent individuals
have fallen victim to the?harrit
eelI-
tiea of an imperfect and, perhaps even
imperfectable teat...The Committee on
Education an Labor heard testimony
from several organisations which
pointed out the explosive use of these
tests over the past several years. Al-
though estimates on the validity and
accuracy of the tests vary. it can be
stated unequivacally that many inno-
cent people have failed the exam. In
point of fact, the exam has failed in-
nocent people. Interestingly enough,
this exam has also failed by proclaim-
ing certain guilty individuals to be in-
nocent.
Clearly, the time has come for Con-
gress to address this issue. I believe
that the amendments that will be of-
fered by the ranking minority member
of the Employment Opportunities
-Subconunittee, the gentleman from
Wisconsin (Mr. Otrimgasortl would
serve to protect the American worker
while maintaining the ability of em-
ployers to control workplace crime.
The amendment to which I refer
woUld prevent preemployment testing,
which has proveri to be the most inac-
curate type Of polygraph test adminis-
tered today. At the same time, the
amendment Would &noir the use Of
polygraph testing' When it has proven
to be an effective tOol In uncovering
nalnely, after a Speak crime
has been committed., By permitting
the polygraph to be used in a COA-
trolled- environment with restrictions
on the questions askek minimum re-
quiver:dente for the length of the Lest,
and by Platting pie PolYgrei)b. in
proper perspective as only- one tool
ampng many, we will Mohr see a great
Improvement In the accuracy of poly-
graph testing.
I urge my consegues to support the
Gundersen.amendment and extend to
the American worker the lights which
criminalaalready have.
Roving said that. Mr. Chairman. I
would also have to fay that although
support 4heir efforts. 1 will oppose all
exemptions to this bill for obvious rea-
sons. It the test is ineffective for day-
care, it Mon also be Anettoctive for
nursing homes, and if we are going to
exempt day cam, are we not going to
exeinpt kindergartens?
? U we are gMan to exempt fluorine
homes. are ? we not ming to exeunt
nurses or home health one deliverers?
In other sends. Members have a
choice intim= it:eruptions of-sehecting
between a sin of ornislion and a sin of
conunission. Then is no way to work
this bin =len we pass the Chinderson
amendment
? Mr. Chairommlet us support maws-
cy. Let us support the test that does
work and reduce the false positives.
H.R. 1111 without' the, Gunderson
amendment is unatesptablebecauselt
Is a iniatume of globate* for the
Amatcan Wetter end naillishissat for
the American businessman.
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11 9534 CONGRESSIONAL RECORD ? HOUSE
Mr. NEAL. Mr. . Chairman, will the
gentleman yield?
Mr. GRANDY. I yield to the gentle-
man from North Carolina.
Mr. NEAL. Mr. Chairman, I would
like to ask the gentleman how he can
support the amendment which encour-
ages an increased use of polygraphs if
he says, as he did in his opening state-
ment, that he thinks the polygraph
test is inherently inaccurate.
Mr. GRANDY. Mr. Chairman, I
thank the gentleman for asking that
question because it plays into the data
that we received in testimony on the
Employment Opportunity Subcommit-
tee which shows specifically that when
the test is administered for incidents
specific after the fact, the increase in
accuracy raises dramatically. So in
that case we have perhaps an accepta-
ble gauge to judge. crime in the work-
place. As a preemployment tool, I
probably agree with the gentleman.
Mr. NEAL. Mr. Chairman, let me ask
the gentleman this: The accuracy
raises to what level?
Mr. GRANDY. Mr. Chairman, I am
sorry. Will the gentleman repeat that?
Mr. NEAL. The gentleman said the
level of accuracy is raised considerably
when the test is not used for preem-
ployment screening but in fact used
for crime-specific purposes. What is
the level of accuracy?
Mr. GR,ANDY. Mr. Chairman, I
think the gentleman is asking me
whether it is a hundred percent,', but
that 'clearly it not it. It is higher than
the 40 to 60 percent that we have seen
as a preemployment figure.
? The CHAIRMAN. The time of the
gentleman from Iowa Mr. Clammy)
has expired. ? '
Mr. GUNDERSON. Mr. Chairman; I
yield 3 minutes to the gentleman from
Florida (Mr. Yourral. ?
Mr. YOUNG of Florida. Mr. Chair-
man, if this bill becomes law in its
present form or with additional
amendments to exempt certain phase
of the economy or with the substitute
to be offered by the gentleman from
Georgia (Mr. Diaings) and myself,- or
If it -becomes law just like it is written
today, there will be the use of poly-
graphs throughout America. Let us
understand that.
The substitute that the gentleman
from Georgia (Mr. DARDawl and I will
offer answers to Meat of the com-
plaints that we have heard from those
Members who support the They
are concerned that the polygraph at-
amination will not be given properly
or that it will be done hurriedly. The
purpose of our substitute is to guaran-
tee that wherever polygraphs are used
In America, they will be used by
trained professionals with numerous
safeguards to the person being exam-
ined.
Again I say there is going- to be the
use of the polygraph under this bill,
no matter what form it takes when it
Is passed. Someone has called it a
gadget. Maybe it is. It is a piece of
equiPMent. ActuallY. the Polygraph is
only as good as the examiner.
If the Members allow us to adopt
the Darden-Young substitute, we are
going to require trained professional
examiners who know what they are
doing and who have a law to go by
when they administer these examina-
tions.
Someone else said there is nothing
In the Darden-Young substitute to
prevent a quickie polygraph exam.
That is not accurate. That speaker has
not read the substitute, because we
provide in the substitute that the ex-
aminer shall set aside a minimum of 1
hour to conduct that examination.
Now, there are those who say that
the polygraph does not work_ and
should riot be used. In the State of
Florida, for' the last 20 years poly-
graph examinations have been used.
There were 300,000 last year alone.
Before , ft polygraph examination can
be administered in the State of Flori-
da, the examinee must be advised that
he has the right to complain if he is
not satisfied, with the conduct of the
examiner, and he is told where to com-
plain and to whom.
There Were 300,000 examinations
last year in Florida, Mr. Chairman,
and there was one complaint. In the
Year before that there were in excess
of 300,000 Polygraph tests adminis-
tered in the State of Florida. and
there was one complaint. As a matter
of fact.. poiida's Secretary Of State at
the time *tilled before the other
body last year about the polygraph,
and take that information fro Ihis
statement,
Mr. Chairman, I would like to say
something to the Members, in cage
they missed it about what one of our
colleagues said. When our colleague,
the gentleman from Texas (Mr.
Bacamml, took the microphone, he said
something very key to this debate. lie
said that his committee has put out
four reports- suggesting that the poly-
graph should be outlawed totally, in-
cluding for the Government. Let us
understand what he is saying. Mr.
Chairman. When he bays we should
exclude them from the Government,
he is saying that the Central Intelli-
gence Agency cannot use them, the
Defense Department cannot use them,
and that none of our national security
agencies -Mil use them. He is saying
that hone of our intelligence secrets
can be protected by the use of the
polygraph.'
The CHAIRMAN. The time of the
gentleman from Florida EMr. Yoinial
has expired.
Mr. MARTINEZ. Mr. Chairman, I
Yield 2 minutes to the gentleman from
Indiana LMP. Vractosgrl.
(Ur. VISCLOSICY asked and was
given permission to revise and extend
his remarks.)
Mr. VISCLOSKY. Mr. Chairman, I
rise in strongsuPPort of H.R. 1212, the
Employee Polygraph Protection Act,
and I also rise in strong opposition to
November 4, 1987
any amendment that might be offered
to weaken the bill.
I speak from practical experience. I
was the subject of a polygraph exami-
nation, if you would, when I was in the
Manhattan district attorney's office in
New York City during the summer of
1972. Each of us was given a polygraph
examination, not as a condition of em-
ployment but to inform us of its oper-
ation, its use, and its validity or lack
thereof.
In our group there were four individ-
uals. We controlled the questions that
were asked, and we answered in a neg-
ative fashion to each. Two questions
Were true, two questions were false. In
my instance, I flunked that examina-
tion because the examiner mispro-
nounced the name of the high school
that I graduated from. A woman in
Our group also flunked the ekamina-
tion because apparently she had a re-
action when the examiner mispro-
nounced the place of her birth. So out
of that group, in a very controlled cir-
cumstance, we had a 50-percent ratio.
I am adamantly opposed to the use
of these devices in our society. They
do not have a place in our society.
Mr. Chairman, ray support for H.R.
1212 is not due exclusively to My anec-
dotal experience The hard, tmc.ontest-
ed truth is that, in an employment sit-
nation, there is no scientific data to
validate, the use of polygraph ma-
chines. All agree that test validity is
primarily affected by the. examiner,
the subject and the setting. The fact
remairia that no one regardless of ex.
Perience, can -determine from a poly-
graph chart WhY a subject reaPonded
in a certain way, whether out of guilt,
fear, anger, humiliation, or intimida-
tion. The ironic truth is that lie detec-
tor tests have a built-in bias against
truthful people. The more honest
workers are, the more likely they will
fail the polygraph because of their
heightened sensitivity to having their
honesty challenged.
While polygraphs are unfair to all
workers, I am concerned about their
impact on minorities. In testimony
before the Subcommittee on Employ-
ment Opportunities, the Legal Action
Center reported that the tests have a
substantial discriminatory effect on
minority Job applicants and employ-
ees. There are two reasons for this
-finding. First of all, the polygraph is a
measure of physiological functions.
. and there is research evidence of
ethnic and group dfffereuces in physi-
ological reactivity to stress which may
affect the polygraph's validity when
used on particular groups. Second, the
inherent subjectivity of determina-
tions based on the polygraph creates
extensive opportunities for conscious
or unconscious biases and cultural
stereotypes to affect the decisions
made by polygraph examiners.
So what do we know about poly-
graphs? We know that there is no re-
search to validate their "findings." We
know that they do not gauge what
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November 4,1987 CONGRESSIONAL RECORD -- HOUSE
they are perceived to, and we know
that there is growing evidence to indi-
cate that they are used in a discrimi-
natory fashion. There are lees drastic,
more effective ways to deter employee
theft and abuse that do not infringe
upon an individual's civil rights. I do
not understand why criminal's are pro-
tected from polygraph testing, but
American workeraaremet.
In conclusion. I can only observe
with redress that we are faced with an
administration that wants everyone to
take a polygraph test tenet a lob. and
take a drug test to keep the job, accept
a minimum wage for the job. I urge
my colleagues to join with me and sup-
port H.R. 1212 and to oppose attempts
to weaken it.
Mr. GUNDERSON. Mr. Chairman,
will the gentleman yield?
Mr. VISCLOSICY. I am happy to
yield to the gentleman from Wiscon-
sin.
Mr. GUNDERSON. Mr. Chairman,
Is it the gentleman's intent, then, to
offer an amendment during the debate
today that will prohibit the use of the
polygraph for national security pur-
poses or prohibit its use for our for-
eign policy personal as will?
Mr. WSCLOSKY. It is not, because
at this point I do not believe that the
majority of my colleagues in this
Chamber agree with me on that par-
ticular subject. I am disappointed at
that, and I regret that disappoint-
ment.
Mr. GUNDERSON. Why did the
gentleman vote for the Mica amend-
ment?
The CHAIRMAN. The time of the
gentleman from Indiana (Mr. lirscr.o-
ssyl has expired.
Mr. GUNDERSON. Mr. Chairman, I
yield 2 minutes to the gentleman from
Utah (Mr. Ninsor43.
(Mr. NrELSON of Utah asked and
was given permission to revise and
extend his remarks.)
Mr. NIELSON of Utah. Mr. Chair-
man. I rise in support of H.R. 1212,
the Employee Polygraph Protection
Act.
I am committed to protecting the
welfare of businesses and the consum-
ers. Many of my colleagues and those
in the areas of commerce feel that
polygraph testing is necessary for pre-
ventive and prosecutorial measures.
As a former professor of statistics,
however. I am very concerned with the
validity in which the polygraph can
accurately detect truth or deception.
Taking Information published by the
17.8. Congress Office of Technology
Assessment, it is surprising how Inac-
curately these testa have been inter-
preted. The results can be summarized
as follows:
For guilty persons:
Shown to be guilty: 65 percent.
Shawn to be innocent 18 percent.
Those Who had inconclusive tests: 17
percent.
For innocent persons:
Shown to be guilty: 19 percent.
Shown to be innocent: 69 percent.
Those who had inconclusive testa: 12
percent.
It is easy to see that polygraph test-
ing acts in icdeiretteritalwatvlor inno-
cent persons.
As an example, assume that 5 per-
cent of the people being screened are
actually guilty. Also assume a very
high validity rate of 90 percent. In this
situation, the polygraph would only
have a 33 percent predictive value,
since for every person correctly identi-
fied as deceptive, two innocent people
would be wrongly classified as decep-
tive. It is a matter of simple mathe-
matics that in order to catch 90 per-
cent of the guilty individuals, 68 per-
cent of the people who fail the poly-
graph test will have been innocent.
The irony is that by basing more and
more important social decisions on the
results of polygraph tests, we may be
producing an effect opposite to that
Intended, firing the most honorable
police officers, refusing to hire the po-
tentially most reliable employees,
while staffing sensitive positions with
those lucky or clever enough to know
how to beat the polygraph.
I urge my fellow colleagues to vote
In favor of H.R. 1212.
0 1290
Mr. MARTINEZ. Mr. Chairmen, I
yield 1 minute to the gentlemen from
New York (Mr. Braocul.
(Mr. BIAGGI asked and was given
permission to revise and extend his re-
marks.)
Mr. BIAGGI. Mr. Chairman, I thank
the gentleman for yielding me this
time.
Mr. Chairman, I rise as an original
cosponsor and strong supporter of
H.R. 1212, the Employee Polygraph
Protection Act.
As New York's ranking member on
the House Education and Labor Com-
mittee, I have heard the testimony
about the abut*, misuse and overuse
of polygraph testing in the private
sector. However, I believe this legisla-
tion offers an effective and responsible
solution to that problem. Simply put,
It provides labor with important and
much needed protections.
As a 23-year police veteran, I believe
there are certain very specific situa-
tions where the polygraph can and
should be used to help prevent crimes,
and to detect criminals once a crime
has been committed. This bill already
has some specific allowances for those
situations, and I will be supporting ef-
forts later today to ensure that other
exemptions are added as well, includ-
ing one for certain segments of the
private security industry.
Those exemptions will provide for
the responsible and necessary use of
the polygraph, while allowing the re-
maining provisions in the bill to pre-
vent the abuse, misuse and overuse of
the lie dector test. This is a very fair
and balanced approach and one that
deserves our full support.
Finally, Mr, Chairman, I want to
commend the author of the bill, Mr.
H9535
WILLIAM% and the distinguished chair-
man of the Employment Opportuni-
ties SubcoMMIttee. Mr. Mattruniz, for
their untiring efforts on behalf of this
frepertant piece of legislation.
Mr. oftranteopz. Mr. Chairman, I
yield 2 minutes to-the gentleman from
flhlfiols '(Mr. Fraviu3.
(Mr. FAinizaJ, asked and was given
permission to revise and extend his re-
marks.)
Mr. FAWELL. whir. Chairman, I
thank the gentlemlin Ow yielding me
this time.
Mr. Chairman, '1 in opposition to
H.R. 1212, which wo
polygraphs in the private and
urge my colleagues to support the Ser-
ious amendments snitch 'will be of-
fered later today to allow the use of
polygraphs under regulated and limit-
ed circumstances.
The polygraph is an important tool
for deterring employee theft. Employ-
ee theft, which amounts to a hidden
tax on all products purchased by con-
sumers, is estimated at $48 billion per
year. A 1980 University of Minnesota
study concluded that de percent of the
employees surveyed from nine retail
orgardaations admitted to stealing
front their employers.
If anything, the polygraph at least
serves as a tool which deters many em-
ployees from ever oonsidering to steal
from Their employers. H.R. 1212, by
banning tk0f polygraphs alto-
gether in the tft8Ctcr, takes
away this deterrent.
Proponents of H.R. 1212 also -ques-
tion the vantlitcv of Poi/graphs and the
accuracy of test results. Yet, the burs
proponents underiniatt ir argument
when they allow Fedoate, and
local governments to ootrtitien to use
polygraphic. If the bill's proponents
think that the result of polygraphs
are not valid in the private sectoz, how
can they possibly be valid in the public
sector?
Ironically, the House already this
year has vicopnlzed the validity of
polygraphs whel it approved an
amendment to the defense authoriza-
tion bill which would estoblish a Per-
manent polygraph prograM for nation-
al detente agencies. The House en-
dorsed that amendment, and the valid-
ity of polygraphs, by a vote of 345 to
44.
Either polygraph results are valid or
they are not? We can't have it both
ways.
If there are problems with the way
polygraphs are administered in the
private sector, H.R. 1212 is the wrong
response. Because Congress has al-
ready recognized that polygraphs do
work in the Federal Govenunent, at-
tempts to ban their use in the private
sector is high-handed hypocraey.
Instead of banning polygraphs alto-
gether, my colleagues should support
the Young-Darden substitute amend-
ment. The substitute is a reasonable
and responsible alter:Wive which
allows private-sector employers to eon-
the use of
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U.. I - LI L
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CONGRESSIONAL RECORD.-- HOUSE November 4, 1987
tinue to use polygraphs under strict (Mr. DaLAY asked and was given - Mr. NEAL. Does the gentleman have
guidelines, permission to revise and extend his re- any evidence?
The Young-Darden substitute estab- mitiiii.) Mr. DELAY., Mr. Chairman, reclaim-
Babes minimum Federal standards for Mr. DrLAY. Mr. Chairman, I thank Mg MY time. iux1 I will tell the gentle
the use of polygraphs in the private the gentleman for yielding me this man how accurate they are.
sector and doe.. not preempt more re. time. They are not from some study the
strictive State laws. Individual rights Mr. Chairman, this debate is incredl- gentleman cut out from the Institute
are also protected. An employer could ble. If the Members look at the , bill of Justice, but accuracy of the practi-
and the cosponsors of the bill, it will cal marketplace.
not deny employment, discharge, or
discipline an individual based solely
show the Members the irony of H.R. If they were not accurate, companies
on
the results of a polygraph exam.
1212. would be wasting their money using
The substitute also places strict re-
It seems interesting to me that the them. They use them because they are
proponents of the bill, most of them, 85- to 95-percent accurate.
Quirements on polygraph examiners.
criticize ?the CIA, the FBI, law-enforce- Mr. MARTINEZ. Mr. Chairman, I
Examiners are prohibited fro asking ment agencies for Gestapo tactics. yield 2 minutes to the gentleman from
questions pertaining to an in hey me the very agenci that Texas Mr. Annazwill.
religious, racial, or politi are exempthsg in . this b
union affiliation, of sesual-,preferentE. g0 to allow to We this libMr.iANDREW8. Mr. Chairman, I
Tougher training standards -are re- intrusive polygraph. the gentleman for yielding me
quired for examiners, end Sr; examiner - These are also the very People that this time.
could net give more than 10 polygraph claim they protect labor, and by doing Private industry does have a real
teats per day, , so, protect Jobs. Yet, by pairing this problem, and that is in screening em-
More importantly, the substitute bill, No. 1, they are destroying 140 000 ,
continues to respect the 'right'of jobs by putting ' out and Wiping Mit PloYees and trying to avoid theft.
'The' anaster, I believe, does 'not lie
States . to regulate the use of poly- 10,000 businessea that adniinister poly_ with the polygraph machine, with a lie
graphs, whereas H.R. 1212 imposes an graphs, detector.
outright Federal ban on their use in No. 2, polygraphs vindicate employ- We know from the estimates we
the private sector. ees from accusations that could cost have heard here in the debate today
I urge my colleagues to reject H.R. them their jobs and their reputations, that they are only accurate some-
1212 as a hypocritical and irrational and they are going to wipe That out. where between 8 and .10; and. 25 per-
response to the so-called polygraph The same proponent.; of thig; hill are cent of the time they are fallible.
problem and, instead, support the also the very ones that say they are They do not work. -
Young-Darden substitute as a respon- consumer advocates. Yet this bill will The response tor business is to do it
Bible alternative. remove one of the tools that is used to the aid-fashioned way, to carefully
Mr. MARTINEZ. Mr. Chairman, I fight theft that results in ' higher screen their Prospective -employees, to
yield 1St minutes to the gentleman Prices. We ought to call this bill the examine their recommendations, to
from Ohio (Mr. TRAnclura Criminal Protection Act of 1987. talk to their previous employers, but
(Mr. TRAFICANT asked and was The advocates also claim to be the not a fallible lie detector.
given permission to revise MI **tend Protectors of children, elderly, and of ' 1 sersed.4Wearelittite &harlot *Star-
his remarks.) ? ,'? ' - .vi3Orierl- Yes, thole_ are__ _ _PsoPIT. -Imes office' in the Houston area: Moat
' Mr. TRAFICANT. mt. Ws.....,t lvt____arkr, tIr...._sss._,e?syMiserthe IP' 015,,424 of that time I worked in prosecuting
- thank the gentleman for -y1 musk as-rp boy MUM OM vs; we .organised oriole mifecood, major drug
this time ______centers keep
MT
Mn'. Chairman, I find this d
AlidecAy- out. I am telling the Members, time and
ou of Pria
eight nurses, and he was not forced to polygraph. Nei Me- sild luteP the
thieves OU enal residences. workable and fallible, and was not a
veryintereating. Richard Speck kill tev time swats the lisrdeteetor proved un-
take a Neither was Charles I have an, mnendment that will useful tool, even in the very most coin-
Manson or the Son a Sam. exempt pest-wmtrol? companies, and I petent hands.
will use this amendment to show the In One instance I tried a defendant
Your 18-year-old daughter going out Members how ridiculous this bill is,
for her first job, never accused of any- who robbed a camera store in a Email
and show dm Mothers example after shopping center. He was covered In a
thing, is going to have to take a poly- example.
graph. hood in a jumpsuit, and at the point of
In one case in San Antonio, there
Companies that rely on polygraphs' a gun in about 3 minutes he robbed a
was a rapist that was kept from being
have more theft than those that do hired by a pest control company be young woman a the money in the
not. The polygraph will never replace cause of the polygraph exam andsthre?
good personnel management and back- other test procedures. If you as home-
He had six alibi witnesses, and he
ground screens; and if this Congressowners want to take away the ability
took three polygraph testa. Two were
can continue to fortify the rights of of screening people, rapists and administered by the police depart-
Speck and Manson, we should assist thieves, out from, being able to come ment. He paased all three.
the American workers in some basic into your home, then you should sup_ The State* was prepared to dismiss
civil rights, too. port .thiabill, It you do not, and if you ,tile, Me, :0,14: the Yoking woman over
What about the workers coming into want to keteu,theeopeople out of thege and over again *4 inat this Is the
the company that pays minimum wage homes. and _they do come in =attend_ Man that rabbed me. ,
and says, we find out that you could ed.i then sou for my amendment. The case Was tried, and I wOhdered
afford to pay more. We have a cones- Please remember that there are all whether the guilty verdict And,the 15
tion bargaining agreement. kinds of example.; of horror stories of years that the jury gave that defend-
Will the company have to take a lie people going In to-service a home and ant were correct. Two weeks later they
detector test? This is a rights vote, and not only raping but stealing, brought the defendant into the court-
what separates us from the Soviet Mr. NEAL.,IIIr. Chairman, will the room manacled and ready to be sent
Union is the debate that is going on in gentleman yield? , away.
this House today. Mr. DELAY4 yield to the gentleman Everyone in the room but the jury
It is a rights vote. I support this bill, from North Carolina. knew that that man had passed those
and any amendment to weaken it, I Mr. NEAL. Mr. Chairman, I thank lie-detector testa. He leaned to the
will speak out against it. the gentleman for yielding. bailiff, and he whispered to him, "You
Mr. GUNDERSON. Mr. Chairman, I Is it the gentleman's position that know, if I had killed that young
yield 3 minutes to the gentleman from these things are accurate? woman, today I would never be in this
Texas (Mr. DELsr). Mr. DELAY. Absolutely. mess now."
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CONGRESSIONAL RECORD ? HOUSE H9537
They are fallible, they do not work,
and it is very important by this bill
that we limit their use as much as we
can.
Mr. GUNDERSON. Mr. Chairman, I
yield 1 minute to the gentleman from
Texas [Arr. DELAY].
Mr. DELAY. Mr. Chairman, I thank
the gentleman for yielding.
I wanted to ask the gentleman from
Texas (Mr. ANDRZWS], my good neigh-
bor and friend from Houston, does the
gentleman believe that drug testa are
100 percent infallible?
Mr. ANDREWS. Mr. Chairman, will
the gentleman yield?
Mr. DELAY.! yield to the gentleman
from Texas.
Mr. ANDREWS. Mr. Chairman. I
thank the gentleman for yielding.
Of course not, but we can be rela-
tively sure that they are more accu,-
rate.
If I could answer the gentleman's
question?
Mr. DELAY. Are they 80 percent in-
fallible?
Mr. ANDREWS. If I could have an
opportunity to answer your question?
Mr. DELAY. Are they 80 percent in-
fallible. 90 percent?
Mr. ANDREWS. If the gentleman
would stop interouting me and let me
answer the question, the American
Medical Association has stated over
and over again that a lie-detector test
Is just about as accurate as a flip of
the coin.
That is not true with drug testing.
Mr. DELAY. There are studies that
refute that.
I am just asking the gentleman if
drug testa are fallible. Is the gentle-
man suggesting that we require 100
percent accuracy on all tools to stop
criminals?
Is the gentleman for or against drug
testing?
The CHAIRMAN. The time of the
gentleman from Texas [Mr. DELar]
has expired.
Mr. ,GUNDERSON. Mr. Chiarman, I
yield myself 30 seconds.
Mr. Chairman. I point out to the
Members that the gentleman from
Texas who just told the story did not
point out that the gentleman was the
prosecutor, the one obviously who was
involved and supportive of the admin-
istration and the results of those poly-
graph tests; but now after the individ-
ual referred to was convicted, now the
gentleman chooses to believe the
person who Was convicted.
I just suggest that we put this story
in its proper perspective. I am not sure
I believe someone who is convicted of
this kind of a crime, is this type of
person the one we ought to be relying
on in determining whether a poly-
graph is or is not valid.
Mr. MARTINEZ. Mr. Chiarman, I
yield 5 minutes to the gentleman from
Montana [Mr. Wzrzurtsl.
Mr. WILLIAMS. Mr. Chairman, I
thank the gentleman for yielding me
this time.
Mr. Chairman, I urge support for
this legislation. I am the prime spon-
sor of this bill, '
The Members are going to be voting
today on whether or not to hilt what
is an absolute epidemic in the growth
of the use of the lie detector gadget in
the American workplace.
One hundred eighty-two of the
Members have joined me in cosponsor-
ing this legislation. It has the support
of the American Medical Association,
the American PsYcological Associa-
tion, the AFL-CIO, the American Civil
Liberties Union.
These organizations join me in op-
posing all specific exemptions and
weakening substitute.
Similar legislation passed this House
last year by a vote of 236 to 173; and it
had, as data; this bill, broad bipartisan
support.
Cl 1215
Yes, there is an epidemic explosion
In the growth of the use of lie detector
in the United States. The American
Polygraph Association tells us that
last year there were 2 million lie detec-
tors tests given in the United States,
and that number has tripled in just
the past 10 years,
Now, when folks hear that there
have been 2 million tests given, they
say, "Well, sure, that's the FBI. the
CIA, the National Security Council,
and local police giving those tests."
Not true. Ninety-eight percent of the 2
million tests given last year were not
given by public agencies. They were
given by private employers against
their employees and 75 percent of
those 2 milliOn tests were given
against people who were only applying
for a job'. They had not been accused
of any wrongdoing. It is the 18-year-
old who wants to be a stenographer,
and they say, "Come here, sit down.
We are going to strap you in and make
you prove that your are not guilty of
something."
Only about one-fourth of the tests
are given to investigate workers who
might be accused, usually wrongly ac-
cused, of some crime or other.
The broad support for lie detectors
stems from the simple fact that there
Is no scientific evidence that shows
that these gadgets, these so-called lie
detectors work. Employers in this
country have been deceived by the
myth that a metal box plugged into a
wall socket can detect truth from lies.
If you believe that somehow all liars
have universal physiological responses,
that is, they all perspire about the
same rate, their respiration increases
at about the same rate, their heart
beat increases at about the same rate,
across all liars in the United States,
then you think the gadget works. I
suggest that that is like believing in
Pinnochio. You believe that When you
lie something physiological happens to
you. In the case of Phulochlo, his nose
got longer. In the case of the accused,
you start to perspire more.
There has been much made here on
the floor of the House about the use
of the lie detector by the Federal Gov-
ernment. Yes the Federal Government
uses them. Two percent of the tests
given last year were given by all public
agencies, including the Federal Gov-
ernmentliut the Federal Government
gives them in ways far different than
private employers do.
The Departraent of Defense is a user
of lie detectors but this Congress
limits the number of lie detector ex-
aminations that can be given by that
Department, The Department of De-
fense *el( has regulations that in.t
volve the preinte.rview, the test itself is
given Under specific controlled condi-
tions, poetinterviews, end again they
limit ths number they give. Then they
forbid themselves) down at. the Depart-
ment of Defense to use the lie detector
as the sole determinant as to a per-
son's questionability Or lack or QUO&
tionability.
Do they Work? Well, they might be
85 percent effective, according to the
people who support the gadget.
Now, let us see what that means. Let
us say that an employer has 1,000 job
applications and the employer sus-
pects that 10,percent, or about 100 of
those 1,990 job applications, are dis-
honest people, about 10 percent. So he
gives the lie detector tests.
Now, if it works at the maximum, at
85 percent, that means that 85 out of
the 100 people that they suspect, 85 of
them will be correctly identified by
the lie detector, but remember, 15 per-
cent of them, or 135 prospective em-
ployees, will be misidentified.
Thus, here is what happens. The lie
detector will accuse out of the 1,000, it
will accuse 220 suspects, of whom 61
percent will be wrongly identified.
Out our way in Montana, we like
western music, and I will close with
this for now, my friends. There is a
song by a Western singer called Tom
T. Hall and there is a line in that song
that says: "If you hang them all, you
will get the guilty."
Mr. GUNDERSON. Mr. Chairman, I
yield 4 minutes to the gentleman from
Texas [Mr. Barnarrl.
(Mr. BARTLETT asked and was
given permission to revise and extend
his remarks.)
Mr. BARTLETT. Mr. Chairman, I
rise in opposition to H.R. 1212 and to
urge a "yes" vote in support of many
of the amendments that will be of-
fered to help to do what some of the
sponsors of the bill say that they want
to do.
I would like 'for the House in these
remaining minutes to back up just a
little bit and cut through the smoke
and the haze and talk about what H.R.
1212 actually does.
Now, some of the proponents and
the speakers have said that they be-
lieve that the polygraph either never
works or almost never works and thus
they would prohibit it. They would say
it should never be used. Yet the bill
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11 9538
- ? CONGRESSIONAL-RECORD ? HOUSE November 4, 1987
itself provides, authorizes the use of
the polygraph by Government agen-
cies.
Others would say that. the poly-
graph is AA imperfect tool and some-
Umos does not work, and yet this bill
before us. and make no mistake about
It, prohibits the use of the polygraph
by SAY employer other than a Govern-
ment &sena. Prohibits them In post-
emplovment, prohibits it in the case
of theft, prohibits It in the case of
preemployment, prohibits no matter
what the occupational needs are of
those employees.
Let us bank up to a few facts. First,
this bill in Its term today does not
clarify the use of the polygraph, it
does not limit the use of the poly-
graph. It does not correct abuses. It
simply twoldbits the use of t poly-
graph examination which Is currently
being used us one tool, es one deters&
mutt in preerardoyment and postern-
tdoyment theft
So we de sot hose before as ? bin
that somehow corrects abaft. We
have a bill before us that eliminates
the use at the polygraph in an but
Oovermanot sancies.
arierrad, it does ham low enforce-
ment hnplicatiosss. and I thhdt we
aught to understand that U alls de
not believe that or do not umignami
It., welt call Your iseataidlima idenamt,
meat or Itatzededonse nentmactor
who has to tay amass= statimmaina
The fact is that adieu a theft era
breed) or a violation of health or
nide ha agnitaged in it intraing hate
Ord banker asialense sentaaalan that
amploner miss a variety of deteemalp
nate to determine who they am
elintinste a suaneOla end then turns
the canard sae over to ?IwpsMCe.
Take ewer that toOl, sad you take
away the OM *atonement allencrs
ability to Wawa the law.
Third. let we ,extunine the civil rights
argument that. kap often trotted out
and is awornaed IS is somewhat trite.
It has ban said OVA the petal:rata
Is not permitted as eviderice in serial-
nal case in a court of ism. end Abet le
true; but the fast is that When emploY-
TS hire filreleYear we bow Ion un-
aerstood that those entilleYera use all
kinds of testa that are not *Mewed in a
spurt of law. They use litssuAr tests
sometimes if it is part of tia lob
fications. They use hammy evidence
by awaiting references. They Inter-
view employees without the presence
of an attorney.
Reterenow are used. IlearnlY evi-
dence is used. Iota:wawa Are used
without the rules of evidence.
Now. the Loa is that the Dabialinb
has changed sad that In tedsies *arid
the use of the PalgraPla 101 int hoed
by industry as a ado datmaninget be-
cause industry is trying to hire and to
find qualified employees. Industry
uses and business uses today, and we
have evidence and testator:I, in the
hearing reword, Industry Mel the Pe
lYgraith as one determinant as one in-
dicator, just like they use references,
lust Like they use personal interviews,
just like they sometimes use written
examinations. They use it as one de-
terminant.
This bill does not say that they
could use it as one determinant. This
hill would say that under 110 annul-
stances can a polygraph be used as lag
Indication. That is not fair to the
other employees and It Is not fair to
the customers and it is not fair to the
Individual homeowners who those em-
ployees 'will be entering their homes at
ail times of the day or night, and it is
not /air to the consumer.
Mr. Chairman, I urge a "yes" vote
for the Darden-Young substitute
which does what many of the propo-
nents of H.R. 1213 efs7 they want to
do, and that in to limit *bums, for/act
abuses, provide a framework, adopt
urbanist standards. If that leaflet we
want to do, let us adopt minimum
standards.
Mr. MARTINEZ. Mr. Chairman. I
yield myself the balance of the 30 sec-
onds I have left.
Mr. CONYERS. Mr. Chairman, wil
the gentleman Odd?
Mr. MARTNN- I yield to the gen-
from M' (Mr. Casual
(Mr. 00111113/11 asked and was ghee
permission to revise and eatend his re.
- ?
^ Mt DOWER& Mr. Chmignen. AO 00 sill
allande am** Ind nada restogeon far
hasugads of *Buganda If yeas* who we
snigkehed sash year by unreable and Saw
siva palms" *sag.
Conaffere ,0011/Welne es
salsa teams dada movement a *arta a
Oh Wawa. Addikasally. them is mooting
evidence that they mamma a eon wore
swims danger to black workers. What the
new Minieriat indicates is that the **(PA
as not arty a asigt to the pomiar 01 vit bid
a special threat* equal egoortuoily for black
Americana.
Naas of this evidence may Nomad can.
claim prat that polyp:oohs discrinamie
alogg mold Irma the it certainly Cormailas
Important danger signs. The data akas
something that M already wide* accepted:
thetas awn imports* dateerninent at the no-
maw/ at polygraph, tasting is the tsar. What
this new data is that testers lust
bring Asir ohm biases to the proc-
esa
The fight for 41901 raPloymeni oppodungy
in this country has sot been a es* ens. hid
we line made much pogrom in recent years
We cannot alkild to sae those gam eroded
through Wick door roans.
The areal* and inhalant= a pay-
pato is mason woough to pas KR 1212.
The mason that they ars Mao racially
biased makes kabflolutelY iMPataiNs-
) gat attaching to tbarte ramerks the taw-
keg decuwesis Mich are part a( that mown
iqg body of midi* of She racially than**
toll akin Of the polygraph:
The apinitio of :the II& District Court for
the NertheM District of awe* Owosso of
Moon v. -Goa *way Paaori aad Varaollows
Mail a ossi Ma ZS C 1572 Wpm 18, i.
The mat *ors had that the plaintiffs ad
presented sufficient` midence to establish that
the defendant's preemptOrleht PolY9,8Ph test
faded blacks W a siggifnently higher rata *an
whiles. The awe aatiled slier *is court ruling
and the 'savant iocluded as agreamem to
eiiminato the polygraph requirement.
The complaint hiiialwaran 4e. Alessaaars
No.. SI Civ. Sat Mad Dac..12, 1916, in
the US. District Court for
As-
blot a New York.? chsrlfell- that **WWII
tests have a.? sada* discriminator/ afoot
Paragraphs 30 wad 21 a the agroplaint de-
scribe the cgs aids by the New York
&NW GAAWOR- of Nun= Rights Wore the
case was tiled in Federal asst. The division
found the charge of disaigastirio appoiled
* probable Game. The age as salted for
825,000.
A statistical report by Jobe Voe RP* chair-
man of Columbia University's Department of
Statistics. Tad in support at the aimplaint In
Johnson swam Aimandsea The inadetiCal
analysis is hosed on data on polygraph tests
outcomes arida by the defendant Over a
15-month period, during which more than
.1.000applicants :wore *stet 73.4 percent of
the whites' passed the test, while only 83.8
percent of the-tacks passed.
EEOC Nation No. 79-44, February a,
1979. The ? Equal Erntrilmainnt OPP0dunbv
Commission deterrnined that a call,90 01 div-
elimination use suMated b/ among,*
close ins case where the oppikantwas re-
Leda on "psychologies:grounds" tor fing a
polygrath ust thp ifddithCa Shalead That
Mahe tailiellitiMfraloidoeMy deqedillted at a
tifiteratirthiallOtttell, ,
M eitamptirOlu amain tY itteOtlica of
Technblogy Assiasmerit on medentillcilefidity
01 ectflingehlesing A 'lessen* fSeview end
Evaluation" iNorenWer 1983). The OTA1
report stotes-thet research agnoctsd cross-
colturdly indleateolhatthere areettnic differ-
ences in response to stress that may affect
the detector of deception.
An emerpt from an aide by Paid R. flack,
ett and Pt 1. Decker, -Desectionot Demo,
1100 in the EMOOrleflt Comeit A Rata
and Critical Analysis," Personnel Psychology,
Vol. 32(1015). The -minor* refer to imearch
evidence of ethnic differences in PhYdrallicat
reactivity to *tress that wad aka the emu-
reoy of test Moults for allarent eapa The
also note "the potential for faders such ,ad
fine imprestiens. profanities ? andetersolypes
to consciously or tmeenecloody alfat the
overall judgment aide by the examiner."
An ankle by Daniel Alaska "ties, Dam
ties ?end Polygreptis," ;from The National
magazine, Oseembor Ct 1085, disessaing the
deerianatory amide of polygraphs.
Un the Il& District Court for the Northam
District -itt Mots, Easton' Division. No.
e 1511.1 -
Mama L. MOM ALAIKTUT. L COON COMITY
POLICS AND CONANCTIONA Mean BOARe.
Item Oirsgrx agar J. Bums.
Sams
W. Nesse, it SAIIIMS OfiltAUTT.
110111111e C. emasensee, lire. Poiremmrs La*
011ittatT. 1/7/1111DIWAL
ORDER
' 'TAU cause comes before the court On
Plaintiffs ?bitted= to the lifindstratets
order of September 11, ifile moommendlell
that ilefeadent's minim tor sammary lade-
=ant be gtentedmii the ewe dhedssad. Per
the reasons hada staled. this Mork after
revise/kW she additional evidence presented
alter the fiatiatraten report, denies defend-
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November 4, 1987
CONGRESSIONAL RECORD ? HOUSE H 9539
ant's motions to dismiss and for sununary
Judgment.
Also before the court is plaintiff's motion
to certify the class. For the reasons herein
stated, this motion is granted.
Plaintiff. Harold Moan, a black, brings
this action challenging the creation, admin-
istration, evaluation, and use of polygraph
tests administered to applicants for the po-
sition of Cook County Correctional officer.
Plaintiff, after taking the polygraph test,
was informed that he had not received a sat-
isfactory grade on it and, consequently, was
rejected as an applicant Plaintiff brings
this suit alleging that the polygraph tests
discriminate against blacks in violation of
Title VII of the Civil Rights Act of 1964, 42
U.S.C. I 2000e, et seq., 42 U.S.C. 1981 and
1983, and the Fourteenth Amendment.
The defendant, in moving for summary
judgment and dismissal, contend, that there
can be no discrimination where, as here,
twice as many blacks as whites were hired as
Correctional Officers over the five year
period covering 1974-1978.
However, summary judgment under Rule
56, Federal Rules ot Civil Procedure, is an
extreme remedy which should be sparingly
employed. City National Bank of Port
Smith, Arkansas v. Vanderboom, 422 F.2d
221, 223 (8th Cir.), cert. denied, 300 U.S. 905
(1970); Homan Mfg. Co. v. Long, 242, F.2d
845 (7th Cir. 1957). It should be entered
only when "the pleadings, depositions, an-
swers to interrogatories, and admissions on
file, together with affidavits, if any, show
that there is no genuine issues as to any ma-
terial fact and that the moving party is enti-
tled to judgment as a matter of law." Rule
56, Fed.R.Civ.P.
The basic mission of the summary judg-
ment procedure is to allow a court to pierce
the pleadings and asses; proof in order to
see whether there is a genuine need for a
trial. Gauck v. Meleski, 346 F.2d 433 (5th
Cir. 1965). Issue finding and not issue reso-
lution is the court's task under such proce-
dure. Hackensack Water Co. v. Village of
Nyack, 289 F. Supp. 671 (S.D. N.Y 1968). In
performing its task, the court must draw in-
ferences from underlying facts contained in
such materials as affidavits, exhibits, and
depositions, in a light most favorable to the
non-movant. Technograph Printed Circuits,
Limited v. Methods Electronics, Inc., 354
P.2(1 442, 446-7 (7th Cir.), cert. denied, 384
U.S. 950 (1966). The non-movant's allega-
tions must be taken as true, to the extent
that they are consistent with its evidence
before the court See Goodman v. Mead
Johnson & Co., 534 F.2d 588 (3d Cir. 1976),
cert. denied, 429 U.S. 1038 (1977). It is the
court's duty to resolve all doubts as to the
existence of a genuine issue as to material
fact against the moving party. TechnograPh
Printed Circuits, Limited V. Methode Elec-
tronics, Inc., supra.
In the instant case, this court finds a clear
question of material fact as to whether the
use, administration, evaluation, and creation
of the polygraph testa employed by the Cor-
rectional Department operates discrimina-
torily against blacks.
First, we note that defendants conten-
tions, that there can be no discrimination
where twice as many blacks as whites have
been hired during the 1974-1978 period, lack
serious merit. Numerous cases have held
that a racially balanced work force cannot
Immunize an employer from liability for
specific acts of discrimination, here the al-
leged employment of the polygraph test.
See e.g., Turnco Construction Corp. v. Wai-
ters, 46 L.W. 4967, 4970.
And, in the instant case, plaintiffs have es-
tablished by statistical evidence ? prima
fade case of discrimination based on the in-
formation contained in defendant's files.
These statistics demonstrate that a higher
percentage of blacks failed the polygraph
test than whites, taking the same test. In
fact. plaintiff's *Vert correctly determined
from the information available that there
Was one chance in LON that in 1976-1978
the proportion of blacks who failed the
polygrenh would be as great as 72.5%
(where 67.5% of those taking the test was
black) if blacks had had an equal chance of
passing the test.
In 1978, 65% of those who took the poly-
graph were black and 74% of those who
failed the polygraph were black. But, 31.2%
of those taking the test were white, yet only
21.5% of those who failed were white. Plain-
tiff's expert correctly determined that the
chance that this proportibn Of?blacks Would
fail the test absent discrimination is less
than twain 10,000.
Based on the statistics, 'plaintiff has prof-
fered sufficient evidence to constitute a
prima fade case of diserhnhiation.
While defendant correctly notes that the
percentage used for the number of blacks
taking the test was an Resumption based on
the percentage of blacks who applied, plain-
tiff used all the information available to
him and- defendants have offered no other
figure that they allege to be more precise.
While this assumption must be tested, its
mere existence without some contrary evi-
dence from defendants, is not enough to un-
dermine plaintiff's efforts to establish a
prima fade case. In fact. in Hester v. South-
ern Railway Co., 497 F.2d 1374, 1379-1381
(5th Cir. 1974), a case cited by defendants in
challenging the use of assumptions by plain-
tiff, the defendant there, unlike the defend-
ant here, offered testimony that plaintiffs
percentages were miscalculated because ap-
plicants "deselected" themselves. Defend-
ants have not offered any such testimony
nor proof explaining the basis for their
challenges to plaintiff's assumptions.
The Supreme Court case of New York City
Transit Authority V. Blazer, 99 8.Ct. 1355,
1364-1368 (1979) la likewise not applicable
where, as here, defendant's have not offered
any explanation as to the likelihood that
Plaintiff's assumptions are inaccurate in
toto. Moreover, in Blazer the Supreme
Court acknowledged that the available sta-
tistics could possibly have proven a prima
fade case.
This court also find it noteworthy that
plaintiff's statistics are compiled from
records which were in defendants possession
and defendant's challenges are logged
against statistics for which plaintiff could
find no records because, as defendant's
admit, "the Merit Board does not have in its
possession all of the white forms collected
in 1977 and 1978." In fact, defendants ef-
forts to undermine the validity of plaintiff's
statistics is based on less reliable assump-
tions than plaintiffs.
For the foregoing reasons, this court finds
that summary judgment and/or dismissal is
inappropriate at this juncture . . .
M.S. District Court, Southern District of
New York]
BARBARA JOHNSON, PLAINTIFF, AGAINST,
ALENANDIR'S, INC., DIPSNDANT
(Complaint)
?MISCOUNT STATZIODST
1. This Is an action brought pursuant to
Title VII of the Civil Rights Act of 1964, as
amended, 41 U.S.C. Section 2000e, seeking
declaratory and injunctive relief to redress
the injury done to the plaintiff, Barbara
Johnson, as a result of the defendant's
policy and practice of denying employment
to job applicants and new employees solely
on the basis of a polygraph test. The de-
fendant's polygraph tests, which are used as
an initial conditiOn of employment for posi-
tions at the defendant's stereo in New York
State, have a sUbetantial discriminatory
impact on job applicants and employees
who are black. These tens are not justified
bl business teceitity: they are not accurate
and cannot serve as a valid predictor of
future job performance. Accordingly, the
defendant's policy and practice of condition-
ing employment on polygraph test results
violates the Civil Rights Act.
3111111WICTION
2. The jurisdiction of this Court is invoked
pursuant to 42 U.S.C. 31 2600e-5 (fX1) and
(f X3), the jurisdictional provisions of Title
VII. Because this action irises under the
laws of the United Stated jurisdiction also
lies under 28 U.S.C. j 1331. The plaintiff
also seek* dedlaratory relief pursuant to 28
U.S.C. 32201 and 2201 and Rule 57 of the
Federal Rules of Civil Procedure.
PARTIN/I
3, Plaintiff Barbara Johnson is a42 year
old black woman. She is a citizen of the
United States and the State of New York,
and resides in Manhattan.
4. Defendant Alexander's. Inc. (herein-
after referred to as "Alexander's") is a cor-
poration operating a chain of department
stores. Its principal corporate office is locat-
ed at 500 Seventh Avenue, New York, New
York.
STATEMZNT OF rine FACTS AND APPLICABLS LAW
A. Alexander's Denial of Employment to
Ms. Johnson,
5. Ms. Johnson applied for employment as
a "fitter-checker" (drawing room attendant)
at Alexander's in October of 1981. On or
about October 15, 1981. Xi Johnson took
and passed the requisite written test and
was given an interview. During the inter-
view she was told that if she received the
job she would be required to submit to a
Polygraph teat.
8. On October 19, 1961, Ms. Johnson
began working for Alexander's on a part
time basis. She worked every day that week
and the beginning of the next week. During
this period, she performed the duties of her
job in a satisfactory manner.
7. On October 27, 1981, Ms. Johnson was
required to take a polygraph test at Alexan-
der's Lexington Avenue store.
8. Ma. Johnson asked the polygraph exam-
iner, an Alexander's employee, what would
happen if she refused to take the test. She
was told that she would be fired. Ms. John-
son submitted to the test.
9. Ms. Johnson truthfully answered all of
the questions that were put to her during
the polygraph test. After the test was com-
pleted, she was told that she would be in-
formed of the results.
10. On October 30, 1981, Ms. Johnson was
Instructed to report to the store personnel
manager. The personnel manager told Ma.
Johnson that she had "failed" the poly-
graph test and that it was Alexander's
policy to terminate persons Who fail the
test. Ms. Johnson was discharged from em-
ployment that day.
B. Alexander's Policy and Practice of Con-
ditioning Employment on Polygraph Test
Results.
11. Ms. Johnson was denied employment
pursuant to a policy and practice of Alexan-
der's, which continues in effect to the
present, requiring all employees in Certain
positions to pass a polygraph test as an ini-
tial condition of their employment.
12. The polygraph tests that are required
by Alexander's aeon initial condition of em-
ployment (hereinafter referred to as "initial
polygraph testa") are administered to job
applicants and new employees before or
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CONGRESSIONAL RECORD ? HOUSE H 9539
ant's motions to dismiss and for sununary
Judgment.
Also before the court is plaintiff's motion
to certify the class. For the reasons herein
stated, this motion is granted.
Plaintiff. Harold Moan, a black, brings
this action challenging the creation, admin-
istration, evaluation, and use of polygraph
tests administered to applicants for the po-
sition of Cook County Correctional officer.
Plaintiff, after taking the polygraph test,
was informed that he had not received a sat-
isfactory grade on it and, consequently, was
rejected as an applicant Plaintiff brings
this suit alleging that the polygraph tests
discriminate against blacks in violation of
Title VII of the Civil Rights Act of 1964, 42
U.S.C. I 2000e, et seq., 42 U.S.C. 1981 and
1983, and the Fourteenth Amendment.
The defendant, in moving for summary
judgment and dismissal, contend, that there
can be no discrimination where, as here,
twice as many blacks as whites were hired as
Correctional Officers over the five year
period covering 1974-1978.
However, summary judgment under Rule
56, Federal Rules ot Civil Procedure, is an
extreme remedy which should be sparingly
employed. City National Bank of Port
Smith, Arkansas v. Vanderboom, 422 F.2d
221, 223 (8th Cir.), cert. denied, 300 U.S. 905
(1970); Homan Mfg. Co. v. Long, 242, F.2d
845 (7th Cir. 1957). It should be entered
only when "the pleadings, depositions, an-
swers to interrogatories, and admissions on
file, together with affidavits, if any, show
that there is no genuine issues as to any ma-
terial fact and that the moving party is enti-
tled to judgment as a matter of law." Rule
56, Fed.R.Civ.P.
The basic mission of the summary judg-
ment procedure is to allow a court to pierce
the pleadings and asses; proof in order to
see whether there is a genuine need for a
trial. Gauck v. Meleski, 346 F.2d 433 (5th
Cir. 1965). Issue finding and not issue reso-
lution is the court's task under such proce-
dure. Hackensack Water Co. v. Village of
Nyack, 289 F. Supp. 671 (S.D. N.Y 1968). In
performing its task, the court must draw in-
ferences from underlying facts contained in
such materials as affidavits, exhibits, and
depositions, in a light most favorable to the
non-movant. Technograph Printed Circuits,
Limited v. Methods Electronics, Inc., 354
P.2(1 442, 446-7 (7th Cir.), cert. denied, 384
U.S. 950 (1966). The non-movant's allega-
tions must be taken as true, to the extent
that they are consistent with its evidence
before the court See Goodman v. Mead
Johnson & Co., 534 F.2d 588 (3d Cir. 1976),
cert. denied, 429 U.S. 1038 (1977). It is the
court's duty to resolve all doubts as to the
existence of a genuine issue as to material
fact against the moving party. TechnograPh
Printed Circuits, Limited V. Methode Elec-
tronics, Inc., supra.
In the instant case, this court finds a clear
question of material fact as to whether the
use, administration, evaluation, and creation
of the polygraph testa employed by the Cor-
rectional Department operates discrimina-
torily against blacks.
First, we note that defendants conten-
tions, that there can be no discrimination
where twice as many blacks as whites have
been hired during the 1974-1978 period, lack
serious merit. Numerous cases have held
that a racially balanced work force cannot
Immunize an employer from liability for
specific acts of discrimination, here the al-
leged employment of the polygraph test.
See e.g., Turnco Construction Corp. v. Wai-
ters, 46 L.W. 4967, 4970.
And, in the instant case, plaintiffs have es-
tablished by statistical evidence ? prima
fade case of discrimination based on the in-
formation contained in defendant's files.
These statistics demonstrate that a higher
percentage of blacks failed the polygraph
test than whites, taking the same test. In
fact. plaintiff's *Vert correctly determined
from the information available that there
Was one chance in LON that in 1976-1978
the proportion of blacks who failed the
polygrenh would be as great as 72.5%
(where 67.5% of those taking the test was
black) if blacks had had an equal chance of
passing the test.
In 1978, 65% of those who took the poly-
graph were black and 74% of those who
failed the polygraph were black. But, 31.2%
of those taking the test were white, yet only
21.5% of those who failed were white. Plain-
tiff's expert correctly determined that the
chance that this proportibn Of?blacks Would
fail the test absent discrimination is less
than twain 10,000.
Based on the statistics, 'plaintiff has prof-
fered sufficient evidence to constitute a
prima fade case of diserhnhiation.
While defendant correctly notes that the
percentage used for the number of blacks
taking the test was an Resumption based on
the percentage of blacks who applied, plain-
tiff used all the information available to
him and- defendants have offered no other
figure that they allege to be more precise.
While this assumption must be tested, its
mere existence without some contrary evi-
dence from defendants, is not enough to un-
dermine plaintiff's efforts to establish a
prima fade case. In fact. in Hester v. South-
ern Railway Co., 497 F.2d 1374, 1379-1381
(5th Cir. 1974), a case cited by defendants in
challenging the use of assumptions by plain-
tiff, the defendant there, unlike the defend-
ant here, offered testimony that plaintiffs
percentages were miscalculated because ap-
plicants "deselected" themselves. Defend-
ants have not offered any such testimony
nor proof explaining the basis for their
challenges to plaintiff's assumptions.
The Supreme Court case of New York City
Transit Authority V. Blazer, 99 8.Ct. 1355,
1364-1368 (1979) la likewise not applicable
where, as here, defendant's have not offered
any explanation as to the likelihood that
Plaintiff's assumptions are inaccurate in
toto. Moreover, in Blazer the Supreme
Court acknowledged that the available sta-
tistics could possibly have proven a prima
fade case.
This court also find it noteworthy that
plaintiff's statistics are compiled from
records which were in defendants possession
and defendant's challenges are logged
against statistics for which plaintiff could
find no records because, as defendant's
admit, "the Merit Board does not have in its
possession all of the white forms collected
in 1977 and 1978." In fact, defendants ef-
forts to undermine the validity of plaintiff's
statistics is based on less reliable assump-
tions than plaintiffs.
For the foregoing reasons, this court finds
that summary judgment and/or dismissal is
inappropriate at this juncture . . .
M.S. District Court, Southern District of
New York]
BARBARA JOHNSON, PLAINTIFF, AGAINST,
ALENANDIR'S, INC., DIPSNDANT
(Complaint)
?MISCOUNT STATZIODST
1. This Is an action brought pursuant to
Title VII of the Civil Rights Act of 1964, as
amended, 41 U.S.C. Section 2000e, seeking
declaratory and injunctive relief to redress
the injury done to the plaintiff, Barbara
Johnson, as a result of the defendant's
policy and practice of denying employment
to job applicants and new employees solely
on the basis of a polygraph test. The de-
fendant's polygraph tests, which are used as
an initial conditiOn of employment for posi-
tions at the defendant's stereo in New York
State, have a sUbetantial discriminatory
impact on job applicants and employees
who are black. These tens are not justified
bl business teceitity: they are not accurate
and cannot serve as a valid predictor of
future job performance. Accordingly, the
defendant's policy and practice of condition-
ing employment on polygraph test results
violates the Civil Rights Act.
3111111WICTION
2. The jurisdiction of this Court is invoked
pursuant to 42 U.S.C. 31 2600e-5 (fX1) and
(f X3), the jurisdictional provisions of Title
VII. Because this action irises under the
laws of the United Stated jurisdiction also
lies under 28 U.S.C. j 1331. The plaintiff
also seek* dedlaratory relief pursuant to 28
U.S.C. 32201 and 2201 and Rule 57 of the
Federal Rules of Civil Procedure.
PARTIN/I
3, Plaintiff Barbara Johnson is a42 year
old black woman. She is a citizen of the
United States and the State of New York,
and resides in Manhattan.
4. Defendant Alexander's. Inc. (herein-
after referred to as "Alexander's") is a cor-
poration operating a chain of department
stores. Its principal corporate office is locat-
ed at 500 Seventh Avenue, New York, New
York.
STATEMZNT OF rine FACTS AND APPLICABLS LAW
A. Alexander's Denial of Employment to
Ms. Johnson,
5. Ms. Johnson applied for employment as
a "fitter-checker" (drawing room attendant)
at Alexander's in October of 1981. On or
about October 15, 1981. Xi Johnson took
and passed the requisite written test and
was given an interview. During the inter-
view she was told that if she received the
job she would be required to submit to a
Polygraph teat.
8. On October 19, 1961, Ms. Johnson
began working for Alexander's on a part
time basis. She worked every day that week
and the beginning of the next week. During
this period, she performed the duties of her
job in a satisfactory manner.
7. On October 27, 1981, Ms. Johnson was
required to take a polygraph test at Alexan-
der's Lexington Avenue store.
8. Ma. Johnson asked the polygraph exam-
iner, an Alexander's employee, what would
happen if she refused to take the test. She
was told that she would be fired. Ms. John-
son submitted to the test.
9. Ms. Johnson truthfully answered all of
the questions that were put to her during
the polygraph test. After the test was com-
pleted, she was told that she would be in-
formed of the results.
10. On October 30, 1981, Ms. Johnson was
Instructed to report to the store personnel
manager. The personnel manager told Ma.
Johnson that she had "failed" the poly-
graph test and that it was Alexander's
policy to terminate persons Who fail the
test. Ms. Johnson was discharged from em-
ployment that day.
B. Alexander's Policy and Practice of Con-
ditioning Employment on Polygraph Test
Results.
11. Ms. Johnson was denied employment
pursuant to a policy and practice of Alexan-
der's, which continues in effect to the
present, requiring all employees in Certain
positions to pass a polygraph test as an ini-
tial condition of their employment.
12. The polygraph tests that are required
by Alexander's aeon initial condition of em-
ployment (hereinafter referred to as "initial
polygraph testa") are administered to job
applicants and new employees before or
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November 4, 1987 CONGRESSIONAL RECORD ? HOUSE
applicants of unknown ethnic origin end
tests for which the results are unknown.
The total number et snob woo= is a mere
19 out of 1457 persona taking the test. Since
this is only 1.3 percent of all persons taking
the test, the 027141011 of such small num-
bers would not result in statistical conclu-
sions essentially different from those given
above. Also omitted from Table I are five
"Inconeissuve- test outcomes. These are
omitted because no employment decisions
were made on the basis of inconclusive tests.
In two instances, employees failed a first
test but requested and were given a second
test. In these two cases, only the outcome of
the second test is recorded in the Table,
since only the second test resulted in an em-
ployment decision.
IASI 1.-DATA ON POLYGRAPH TEST OMITS* 1433
KNOWN CASES BY ETHNIC GROUP
Ethic group
Test midi
Pam fal AO*
White 240 87
ban 23 4
Native Amman 0 1
14
31
0
Table ft presents the psis proportions as
Peseentelles by ethnic group with and with-
out admissions included. Note that the het
row of table 2 presents the combined rates
for all ethnic poops which are son-block.
TABLE 2.-PASS PERCENTAGES BY MC GROUP
Pass pdmilies
Sacerld
tonsoleer
Untmlomms Oils"
defeddli lubJed)
WO_
AIM
Native American
Plead(
73.4
832
665
152
reti
714
582
152
90.6
0.0
611
To analyse the data from Tables land 2, a
standard statistical technique of comparing
two binomial proportions is employed. See,
for example, Mosteller, Rourke and Thomas
(1910. pp. 319-3233. lipafficalig. few analy-
ses were done: (1) comparing the black and
white pass proportions for the initial poly-
graph test (without admissions included),
(2) comparing the black and non-black pass
proportions for the Initial polygraph test.
(3) comparing the black and white pass pro-
Portions for the security interview (includ-
ing admissions). and (4) comparing the
black and non-black pass proportions for
the security interview.
A detailed explanation of the statistiad
procedure used will be given in the case of
the comparison of the black and white pan
proportions for the initial polygraph test
(see (1) above). These luswits are even hi
Tablet below. Tbessomporiscos in (1) to (a)
above follow a afroller rowedare and the re-
mits &restated in Tables 4 to di below.
The sistiskicsi procedom used lathes the
followi . emumptions. finiMoso WI have
two populations of opplieento Widow the
Polygraph test. In ease (1), these issivuhr
tithe are the black applicant pool and the
white applicant pool. We assume thag the
applicants in table 1 are a random ssmPle 01
the applicant pool for each racial group.
Under these easumptions. It is well-known
that the number of whites who pass have
what is called binomial population with un-
known pass proportion pl. The number of
white passes in this sample can be designat-
ed z, while is designates the sample size for
whites. In ewe (1) above, as.240 and
m4=827=240+87 (see raw me of Table 1).
Similarly, the number of blacks who pass
have a binomial distritedien with miaow'
issra InoPortion pi. In tire emegte under
shady, tbe observed black number of passes
it x.....441), and the black sample she
os =70i-448+266 (see row two of Table It
We now ask the questiorc is pess (the use-
known racial group owe Impactions are the
same) as opposed to whether Is" (the un-
known white pan proportion is higher than
the unknown black pass proportion'? To
answer this question, we begin by compare
big the two observed proportions.
- dame copertios
pa eft poses.
- *eyed worolion
- of black passes.
The estimated standard error. hens .0812.
is a measure of the expected spread of the
observed difference Statistlesi theory
sacs that if we divide the difference ;i--ce by
the estimated standard error a, we get a sta-
tistic which meethres the number of nor
-
realized standard deviations contained in
the observed differenee in this case.
the z-value its 3.11.
;1--;.
.1315
A a-value of more Wan 2 is commoolly con-
sidered to be statcally significent. In
other words, 'Alen the a-value same& 2, the
observed difference he psis proportions
cannot reasonably be attributed to thence
alone.
By reference to statistical tables. the *-
value can be used to determine the probabil-
ity that the observed difference in Pam pro-
portions would occur by chance. In this
case, the probability of the observed a-value
being as Large or larger than 3.11 Is
Prob(observed a 1/31310 3.11)
=Prob(obsereed =creme )4091)
That is, the probability of seeing on ob-
served difference 41-;? as largo or larger
than .098. g Indeed the pass proportions ere
equal for the white and block applicant
Pools fe--;,:). it opproxinistelythe in a thou-
sand (1 in 1000). Name. we can conclude
that this difference is too large to be omen-
ably attributable to chows alone. Timm.
the pass proportion for obitessolso talus Al0
exandees Initial loolYgraith test; bights
then,, the gess proportion for the geode-
ace of block thadshoss. We sem conclude
that Weeks compared to /dem dts-
admistage from the Weld poiggesph teat
administered by Alesexelles. lPselitenisore,
such a disadvantage cannot be attributed
booed on the observed digs to theme Mena
We menmarise the mesh for the Isempari-
son of this white vs Math miss proportions
for the WOW pthewspis hot in Ta bie 3
below. Mee (I) shove),
11 9541
TAM 3.-STATITICAL Rams TOR WHITE VERNA
BLACK PASS PROPOIMOIG ON THE BAAL WW1
TEST
EV* gm' Piss F1 TM Pass drucotim
Vide & jr,
Mad ,441
Teti 811 343 1131 02181116196)=;
Obssoral dNersosteifideddleit..;.-;....731-231.111.
Estimated standad mac at
deposited standard devil% onii.e..091/.0315-3.11.
trobahld (drsami dimes >2110.1111 (II 18111.
'BIBLE 4.-4TATIS1ICAl. mum ft NON-WICK VERSUS
NAM PASS PROPORIXES ON THE WM TOLMAN
TEST
Ed* pap Pam foll T Pam P4004111
deottledr____ 438 181 518 11=tit.
Mod 448 256 /116
Total 886 436 1,322 0.670($61%)..;
IIu tdiseactill dermelso.,;,-;....1119-436.40.
Estimated standard Error of Ilihmeouvevvd218.
Normalized doodad AMON units =8-.0731.0259 = EU.
Pmbability (deemendlimerito >103)..142 450010W.
TABLE 5.-SIATISRCPLRES.L11 RICIWINE MENEM
BLACX PASS PROPORIIONS Olt ME BOOTY INIEffIEW
Met stop be te Pa 4Iss deptlion
It taret,?"4-
sal- al 421 UO OhilatalOsk
Oland efIllmede d popetouss.-i,-.741.-.582..121
fatimakd sindmatifter of eerwavve-.01311
demedad 41114110 mill.vae-21/0/31,411.
Prrisedizq 11411Meddidreld >412.kiO4 (II WAY
TABLE B.-SIATIVIOAL BEERICTSIORION-INACK VERSUS
BLACK PASS PEPORTIONSIIII TI IECIXBY INIERNEW
Eat go be Pd led km porde
ret 114064211.3..
ha? ai 511 L431 114110141Sis70:
these Mow erogl...4-1,-.661 -22.171
ettimsla1 shmlardenerd Mordeve=1/1.
ilmehalsskataiths milszoand.90114/611.
Polka* Olowaseposs dA711...11/5 am.
The conclusion / reach from Tables 3
through 6 is that if One compares the black
pass proportion to either the white or non-
black proportion for the Initial PolYgtaith
test or security Interldetr. there is a large.
normalized etsculard deviation Indicating
most clearlY that Alexander's nfrolalstra-
tron of the Initial Polygraph lost and securi-
ty interview bags AU inthworsble impact on
MAL
savonwes
httosteller. P. Neente, R., and Thaws.
Gil., Jr. (1910). *Ivrthabillity with =Whales/
AppliesAlesug? 2od 3d., Addison-Westey
ffo.,
Pedb1IshlogBeadi(&
Pormesuorierrnurinanoriieract
Decision of Arinal Iffroplogsawat Opportu-
nit, coMmission Decision No, 79-44, Zebra-
ary 23. 1079.
Taut WM-WM 1130111WaCTOT 10414
Preompkryment inquIriee-Poydrelcorlood
librare-Ponyarenit-Relection of on soffit-
cant for pollee employment becalm he
failed It psychiotife telt :no rade*
criminstery where tam procedural used,
which %eluded is PelY511116s tea, dieter:di-
ned Wart applicants at a dispreportIonstely
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H 9542
CONGRESSIONAL RECORD ? HOUSE November 4, 1987
high rate and were not shown to be related
to successful job performance.
Back reference.-1 420.30.
(Full Text of EEOC Decision]
Summary of Charge
Charging Party alleges that Respondents
engage in unlawful employment practices in
violation of Title VII of the Civil Rights Act
of 1964, as amended, on the basis of race by
using hiring practices and selection proce-
dures which discriminate against Blacks.
Jurisdiction
Respondent police department is an em-
ployer within the meaning of Section 701 of
Title VII and, at the time the charge was
field, employed (number] persons. Respond-
ent Civil Service Commission, is an employ-
er within the meaning of Section 701 of
Title VII.
The charge was deferred to the (local)
Civil Rights Commission on March 26, 1973.
No investigation was made of Charging
Party's charges by the (local Civil Rights
Commission.
The charge was timely filed with the
EEOC and all other jurisdictional require-
ments have been satisfied.
Summary of investigation
At the time the charge was filed, Re-
spondents utilised the following Procedures
to select policemen: 1) a written general
ability test admiriistered by the Civil Service
Commission; 2) the formation of an eligibil-
ity list by the Civil Service Commission; 3) a
background investigation; 4) a physical
exam by the Department of Safety Medical
Director, 5) a written psychological exam; 6)
a psychiatric interview and evaluation of
the summaries of the background investiga-
tion and the psychological exam: 7) review
of the applicant's file by the Chief of Police;
and 8) final selection by the Director of
Public Safety.
Charging Party received a score of 81.515
on the written exam which placed him 832
on the eligiblfty list. He took the polygraph
test prior to the psychiatric and psychologi-
cal tests and was rejected .on psychological
grounds as a result of the polygraph test. He
alleges that his responses to questions Paged
during the polygraph were not accurately
reflected. For exampe, he stated that his af-
firmative answer to a question regarding his
knowing homosexuals was recorded as "ap-
plicant admitted going with homosexuals.".
Respondent's Chief of Police denied that
Charging Party had been discriminated
against and stated that, Respondent Civil
Service CoMmission devised and adminis-
tered the tests used. Respondents refused to
cooperate in the investigation of the charge,
claiming that the charges fell within the
continuing Jurisdiction of the United States
District Court ? ? ? where an action had
been brought under 42 U.S.C.A. 11981.
An action was filed on October 12, 1972,
by the?an organisation composed principal-
ly of Black police *filters, and individual
Black police officers against the city, its
Chief of Police. the Director of ,the Cities
Program, and members of the (city] Civil
Service Commission. The suit Wiled that a
range of practices used by the Respondents
in the recruitment, testing, screening and
hiring of new patrolmen; the assignment,
treatment and promotion of current police
officers, as well as the examination achninis-
tered by the Civil Service Commission on
July 15, 1972, had a racially discriminatory
effect on Blacks and Puerto Ricans. The
Court held that the evidence created a
prima facie case that the battery of testa
constituting the examination of July 15,
1972, had a racially discriminatory impact
upon Blacks and Puerto Ricans who took
the examination. The court fixed the mini-
mum number of appointments of Blacks
and Puerto Ricans, male and female, to be
made to the police force from the 1972 eligi-
bility list at 18 percent.
An action under 42 U.S.C.A. 51981, how-
ever, is not a bar to action by any other per-
sons who may believe that Respondents
have in the past discriminated, or are pres-
ently discriminating, against them in viola-
tion of Title VII of the Civil Rights Act of
1964, as amended. It is well established that
an action for employment discrimination in-
volving racial discrimination may be
brought under Title VH or 42 U.S.C.A.
1981. See erg. Head v. Timken Roller Bear-
ing Company (11 EPD 188761. 484 F.2d 870
(6th Cir. 1973), Taylor v. Safeway Stores,
Inc. (10 EPD 110.410]. 524 F.2d 263 (10th
Cir. 1975) where it was held that 42 U.S.C.A.
1 1981 is an independent cause of action
which may be maintained either concur-
rently with a claim under Title VII or with-
out exhausting Title VII remedies and Boles
v. Union Camp Corp., 57 FRD 46 (S.D. Ga.
1972) 5 EPD 1 8051 where a class action was
brought by several Black employees of
Union Camp Corporation and by two former
black employees and two blacks who were
rejected under Title VII and 42 U.S.C.A.
1981.
Although Charging Party successfully
completed the eligibility exam, he was re-
jected for employment. The rejection of the
Charging Party was based on psychiatric
unfitness. An analysis of the points of rejec-
tion reveal wide disparities in the percent-
ages of Blacks and Whites rejected. For ex-
ample, 7.9 percent of Whites were rejected
because of background while 19.3 percent of
Blacks were rejected; .79 percent of Whites
were rejected for psychological reasons
(consisting of an IQ test and personality
test) while 8.7 percent of Blacks were reject-
ed; 16.90 percent of Whites were rejected
for psychiatric reasons while 39.3 percent of
Blacks were rejected; 28.30 percent of
Whites were rejected for medical reasons
while 18.7 percent of Blacks were rejected.
It is well established that employment
teeta and qualifications Which have a dispro-
portionate exclusionary effect on minority
anelicants and do not have a, demonstrable
relationship to successful performance on
the job are prohibited. See e.g. Grine v.
Duke Power Co. IS EPD 181373, 401 U.S.
424. 431 (1971), Castro v. Beecher [4 EPD
77833. 459 F. 2d 725 (1st Cir. 1972).
Furthermore. the Commission has held
that the use of any test which adversely af-
fects the hiring, promotion, transfer, or any
other employment or membership opportu-
nity of classes protected by Title VII consti-
tutes discrimination =less: a) the test has
been validated and evidences a high degree
of utility and b) the person giving or acting
upon the results of the particular test can
demonstrate that alternative suitable
hiring, transfer, or promotion procedures
are unavailable. See EEOC Guidelines on
Employment Selection, 29 CFR *1607.3.
Conclusion
-In vim of the tilisproportionate Impact of
Respondentir selection Procedures on
Blacks, and In the absence of validation of
the procedures, we conclude that there is
reasonable cause to -believe that Respond-
ents violate Title VU of the Civil Rights Act
of 1984, as amended, on the basis of race by
using hiring practices and selection proce-
dures which discriminate against Blacks-
Scrxerzyro Varian's ow Potraaarn Txsrma:
A Ressaaor RIM= AND EVALUATION
ITEM AND ewes DIVIMMINC115
? Another category of subject elifferences
that may affect polygraph validity has to do
with ethnic and group differences in physio-
logical response. Research conducted cross
culturally (e.g., 97,104,158), indkates that
there are ethnic differences in response to
stress. Such differences may, in turn, affect
detection of deception. As noted earlier,
these effects may interact with the ethnic
identification of the examiner. However, ef-
fects of ethnic differences have not been di-
rectly tested with respect to polygraph ex-
aminations.
AUTONOMIC LIABILITY
A final individual difference is what Waid
and Orne (194) have referred to as automat-
ic lability. Regardless of other differences
among subjects, there may be consistent in-
dividual differences connected with their
level of automatic arousal.
Although there is considerable variance
for an individual in autonomic responses to
most physiological measures of automatic
nervous system (ANS) arousal, electroder-
mal lability may be different. Given the im-
portance of the EDR for polygraph exami-
nations, it may be essential to understand
more about this factor. Unfortunately, most
of this research (e.g., 200) has been conduct-
ed with concealed information tests and not
with CQT or R I tests.
SITTING
One theory underlying lie detection using
the polygraph is that the threat of punish-
ment leads an individual to manifest a phys-
iological reaction (48). This suggests, then,
that settings In which an individual is more
certain of being d.etectel and in which the
consequences art greatest, will permit
higher levels of detection. Furthermore, in
order to be certain of being detected, a sub-
ject must believe in the efficacy of the poly-
graph procedures in order for it to function.
According to some (e.g., 194), the polygraph
is Often used somewhat like a "stage prop,"
and its presence is meant to "enhance the
subject's concern." Stimulation testa, used
in almost all field polygraph examinations,
serve the same function, albeit more direct-
ly. There is considerable discussion (e.g..
202) in the literature about how frequently
within a polygraph examination such stimu-
lation tests should be utflbsed in order to in-
crease the validity of the examination.
INSTRUMENT
Some research, reported by Ome and his
colleagues, addresses the question of the sit-
uational features necessary for a polygraph
examination. In one component of * study
reported by Orrte, et al. (123), subjects were
led to believe that the polygraph recording
equipment W$5 not operative. There was
some indication that the Pretest condition
in which subjects were led to believe that
the polygraph instrument was inoperative
Produced a lower detectability; however, re-
suite were not statistically significant. In an
earlier study (161), detectabiliti was riot af-
fected by subjects' belief in whether the me
chine was recording. Both of these studies
involved used concealed information tests.
A more recent study by Genoa-group (198)
tested a shriller hYPOtftelds using a different
procedure. In this study, subjects saw the
polygraph machine turned off, although the
experimenters actually ran the leads to a
second polygraph device and were able to
record responses during a pretest review of
questions. The results indicated that sub-
jects who were aware of being recorded had
significantly higher responses to relevant
questions and not significantly different re-
sponses to control questions.
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. . . .
November 4, 1087 CONGRESSIONAL RECORD?HOUSE
Daexcrion or Decernow an um Earstar-
sant Corraurr: A Haim ANS ONTiCAL
ANALTSIS
(By Paul R. Sackett and Phillip J. Decker)
Empirical research on the validity of the
polygraph. voice stems analysis, and paper
and pencil Instruments as mechanisms for
the detection of deception is reviewed. It is
noted that while these devices have their
greatest use in the employment context, vir-
tually all research has been done in an
actual or simulated criminal investigation
context Three separate uses of devices for
the detection of deception in the employ-
ment context are Identified, namely, pre-
employment screening, periodic screening of
current employees, and Investigation into a
specific theft. Differences between each of
these uses and the criminal investigation
context are identified, and issues limiting
the generelizadlity of research findings
from one context to another are raised.
Among the Issues are the effects of a low
base rate of guilt on accurraey, the effects of
making multiple Judaea** on overall seen-
mos, and the potential for racial or ethnic
bias in Judgments of guilt .r-innocence.
An extensive body of literature exist' an
the topic of the detection of deception and
investigation of that using various tech-
niques. Including inteepeetatica MI physio-
logical responses and questionnorice Very
little of this Moran:re has appeared in Psy-
chological journals. Most imports are con-
tained in polygraph aide puldicationa or
law enforcement publications. Lykken
(1978b) discussed the lack of involvement by
psychologists in this field, labeling ft a carte
of "policemen rushing in where science
fears to tread."
Regardless of who has done the research
or its quality, the vast majority of poly-
graph examinations are oondur,ted in the
employment context rather than the crimi-
nal investigation context (U.S. Senate,
1974). However, virtually all reported re-
search has dealt with actual or simulated
criminal investigations.
INOCTIONII TO POLYGRAM NRAMINAISONS
The questions raised in this paper have te-
ethed on the accuracy of polygraph exami-
nations. ft should be noted that a =weber of
objections to the polygraph cam be made on
ethical, social, and oonaltutionel finitinds.
Among these are objections that the poly-
graph is an Invasion of privacy and an in-
fringement on the dignity of man, that It re-
verses the principle that one is innocent
until proven guilty by requiring individuals
to prove their innocence, and that it violates
lab amendment rights agreed self Uverbni-
nation. Proponents of the polygraph early
that individual rights must be weighed
against employer losses and that Individuals
have an obligation to society to cooperate in
attempts to idealise dishonest Individuals
(Shattuck. Brown, and Carbon, Note 6).
The stand one takes regarding the poly-
graph may be largely deteaulned by wheth-
er one's sympathies lie with the Individual
or the emPloyer.
Another issue of Interest is the attitude of
applicants and employees toward the poly-
graph examination. Ash and Wheeler (Note
7) report that 86 percent of applicants
thought the examination was fair, 96 per-
cent were willing to take the teat to get a
job, and 96 percent were willing to routinely
take an masa as a condition of aniployment.
They interpret these remits as indicating
that meietanee to the polygraph has been
overestimated. However, all participants
completed the attitude questionnaire after
the polygraph examination. Thus, the ques-
tionnaire may have been viewed as part of
the selection procedure, and applicants may
have felt that expressing negative attitudes
toward the ezataination would affect their
chances for employment. Further research
is needed in a setting in which me negative
outcome may, be anticipated by the subjects
due to expression of negativeatatudes.
MAN ruPetyosarn MEASUNATIFONS
Title VII of the Clvii Rights Act of 1964
prohibits discrimination In employment de-
cisions an the basis of race, color, religion.
sex, and asthma origin. Two potential
sources of bias in polygraph examinations
have been identified. The first Involves pos-
sible racial, ethnic, or sexual differences in
physiological reactivity to Psychological
stress. leugelmaas and Llebilch (1968) have
shown that persons of Eastern mediterrane-
an origin show OBE non-reactivity more
often than other ethnic groups. Relying on
different physiological measures for differ-
ent subgroups may result in differential ac-
curacy across subgroups. It ahead be noted
that ethnic differences in Ofin keel (e.g.,
Johnson and Conde 1963: Lazarus. Tomite
Opton, and Kodama. 1966) do not constitute
a threat to polygraph accuracy, since the
subjects' responses to irrelevant or control
questions are compared with their responses
to relevant questions.
Second, and perhaps of greater Interest, Is
the potential for factors such as first im-
pressions, prejudices, and stereotypes to
consciously or tuiconadously affect the
overall judgment made by the examiner.
Orne. Thaelority. and Parkewits (1972) have
suggested that "the manner In which ques-
tions are asked can certainly influence the
Pluslolosical response The Interrogator
wishing to obtain a record with phiedelogi-
cal evidence of deception Is likely to be able
to do so. In view of the work of Rosenthal
(1986) on experimenter bias, it seems ex-
tremely likely that the interrogator could
unwittingly communicate some espeeta of
his conviction to the subject" (le 751).
There are no published field studies report-
ing information on the percent of deceptive
and nondeoeptive judgments among the var-
ious protected classes. Such Information
Amid be readily available and deserves to
be reported.
There Is one appebite court case confirm-
ing the =Ws right of access to polygraph
records ((Vele If Corporation vs EEOC).
The Information sought by the EEOC is In-
structive: "a list of all applicants and
present employees subjected to the Pole-
graph extuninatIon, their racial/ethnic iden-
tity and whether they were accepted Or re-
Jetted; documentation of the nature, stand-
ardization and validity of the polygraph
test. and a list of questions asked of each ap-
plicant; qualifications of the examiners who
administered the testa ? ? ?" M. 1054). The
EEOC was granted access to this informa-
tion, but a case involving discrimination on
the basis of the polygraph examination has
not come to trial. There have, however,
been a number at cases in width the subjec-
tive nature of the decision made in an em-
ployment interview had been Identified as
having the potential for discrimination (e.g.,
Hester vs Southern Railway Co., Causey vs
rani Motor Co.). On the other hand, one
Interview case has upheld the employer's
right to subjective evaluation unless there is
evidence of Was Melton VT Western Elec-
tric). Thus, an examination based solely on
the InterPretation of polygzepli charts may
be on stronger legal grounds than one in-
volving both charts and mietaltilition of the
examlnee's verbal and nonverbal behavior.
iFrom the Nation, Dec. 21,19851
Liz, DAMN LiElt?.Aam ikkiaraziabas
(By Daniel Jainism)
A machine that monitors blood plenum,
respiration and the akires electrical (fondue-
W643
deity is demising tens of thousands of law-
abiding people of jobs every pear. thedby
employers as a ..?to ends both dubious
and devious. the Ociltaraph Is nevertheless
becoming as familiar as the time clock In
more and more American worialsoes la the
private arekee alone, estimates of the
number of Dolma* testa administered an-
nually nage from several hundred thou-
sand to million. The American Polygraph
derociatien saes that tbreeatarters of
them are used In pre-employment fattening.
A Presidential directive revealed lost week
swells the number of Federal entidottes
who must undergo examination.
The test is most commonly used by busi-
nesses in which low-level employees handle
large sums of cash daily in return for
modest checks weekly, such as banka, rex-
taurants and department stores. But ali
kinds of concerns tap into their workers'.
supposedly telltale heartbeats: meatpacking
companies, hospitals and even the Yale
Club have used "lie detectors" to screen pro-
spective employees, check upon workers pe-
dodically or track down culprits in the wake
of a theft or act of sabotage. Usually a secu-
rity finn Is hired to do the dirty work, but
some businesses have in-house operations.
Because employers who _favor polygraph
testing generally .snake It a condition of em-
ploymeat, workers fled it difficult to refuse
to take the tea.
The machine is especially popular anions
employers who resent Federal and State
regulations on hiring and Axing its reputa-
tion and areirPosedly scientific tool gives
them a license to rejector sack erterinever
they please. ,litairitrimb Waimea few almost
never prove that an emitter& acted Mead-
ie. We didn't the you because laiere getting
old and costing os toe muck, a company con
argue; we fired you became the polygraph
says youlara tbiet
Don Mears, oboe a manager for a depart-
ment store chain in the Camerae, provided
a Ildissese into polygraph practices when he
testified before a Senate Judiciary subcom-
mittee in 1978. According to Mews, his dis-
trict supervisor told him that blacks "Just
don't work out" and Ordered him to dismiss
two bieek women waiters aims said that
when be refused. themwervesor remarked,
efrall haste to show you how our polygraph
test works around hem." The women were
subsequently fired, after their test results
indicated la sign of a posaielity of deceit."
His bests aka turned down the only two
blacks wham he had ever recommended for
management trainee positions, again an the
basis of the polygraph test. Others who loot
their jobs at Hawes store included a woman
Who confessed that her boyfriend used to
make marijuana, a woman who admitted
that she occassionaily suffered from mi-
graines, an employee who mid her heart
condition made It MALIN for her to take the
test and two high-school part-tbners whom
the polygraph examiner refused to fit into
his schedule. Blame also testified that "the
polygraph companies used by my employer
apparently had a quota of employees they
had to fire at every round of testing in order
to show that the testing warn accomplishing
something and that the cost ? was Justi-
fied." Bless was fired after Protesting
against misuse of the test?but not before
taking an examination himself and being so-
eased of giving deceptive wavers.
Besides using electronic inquests to die-
erindnate against racial mierorities, compa-
nies elle thorn to APO, derrieres of an,stripee
ha 1977 workers at the Coots brewery
'truck, portly because they objected to the
COMPanra mamas. the poligraph agency
employed by Coors mired job apialcants
these questions What are your sexual prat-
_
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H 9544 CONGRESSIONAL RECORD HOUSE
erencee? How often do you change your un-
derwear? Have you ever done anything with
your wife that could be considered immoral?
Are you a homosexual? Are you a Commu-
nist?
Union organizers have also been targets.
The National Labor Relations Board recent-
ly ruled on a case involving two waitresses
who tried to organise. the .Shoney's restau-
rant chain in Georgia. One of them, Maria
Amiga, was fired on the basis of informa-
tion she revealed Miring the Interview pre-
ceding a polygraph examination. The com-
pany said she admitted she had taken home
some leftover potatoes and parsley, a viola-
tion of -company rules even though she had
her manager's permission. Patricia Burch,
the other .weitress, had refused to sign the
teat consent form. ,whicli, in Georgia Permits
the examiner to iniplire about a Worker% ft
-
'lancer). and military Orrice; She considered
her finances her oWil butlirlein and didn't
want to be questioned 'abet% the military be-
cause her husband was lathe service. She
offered' to , sign a revised conseet form but
? was fired nonetheless, for actions her boss
Considered tantamount to raftedrig the poly-
graph test.
N.L.R.B. Judge Richard J. Linton ruled
that Shoney's "dtschatged ? Songs. and
'Burch because of their union and other pro-
tected ? .? activities," adding that the com-
pany "would not have ordered the poly-
graph tests in the absence of such aetivi-
nee He ordered theta re:00SW With back
? In the course of the hearing; a director of
operations for Shearers- Metaled that he
use, the polygraph "to keep people honest."
that le. as a deterrent to theft. Jay Harvey,
-director of legislation for the A.F.L.-C.I.O.%
focid and allied services trades departnient,
whale -federated union members are often
Subjleited to- polygraph teirtir, WM' the pile-
Lice is common: "There are two kinds of eM-
-ployers- who Use- the, polygraph. ? The .kind
-who honestly have the iniataken belief that
-the machines work?that's the minority.
The majority of employers know that the
-Machine is not necessarilkraliable," bat be-
lieire, as Richard Nixon .put--it," that *AY-
? graphs "scare the hell Out of people."
Even employers simple seeking Job-related
information- from tipple:ante may end up in-
-vesting their workers' privacy. People inter-
-rogated while hooked up to it Pneumatic
'chest tube, a blood-pressure cuff and a gal-
vanic skin-response indicator -.often come
away feeling humiliated and violated. Poly-
graph foes have thus dubbed the tests pay-
shological rubber-hose treatments and
mental strip searches. The New York State
Attorney General's Office has charged sev-
eral examiners with sexual harrassment.
Carlin Meyer. who heads the office's labor
bureau, says the office receives at least ten
polygraph-related complaints each week.
A recent court case in Chicago- revealed
.that blacks may suffer -the adverse conse-
quences of polygraph errors more frequent-
ly than Whites. In a discrimination suit
brought in U.S. District Court, individuals
-seeking lobs as prison guards proved to the
satisfaction of the court that blacks iall.pre-
employment polygraph testa more -often
-than whites. Jon Bauer, a staff attorney for
the Legal Action Center of New York, a
public interest law firm that has litigated
several ? polygraph eases, believes that the
discrepancy may result from differences be-
tween blacks and whites physiolOgical
sponees to stress, tensions between white ex-
aminers and black subjects, or prejudices
that can enter into an examiner's evalua-
tion, which relies as much on stibjective im-
pressions as on squiggles on a chart. In any
case, said Bauer: "we should not tolerate a
test that has a discriminatory effect on
blacks when there is no adequate evidence
that the test is valid."
Losing one's job or not getting hired be-
cause of failure to pass a polygraph test can
have disastrous consequences. A toy-depart-
ment manager who was fired by one compa-
ny after flunking a test (he had high blood
pressure, which can skew test results) was
dismissed from his next job after six
months, when his new boss learned of the
previous exam.- In effect, the man had been
blackballed in the toy. industry.
In another form of polygraph double jeop-
ardy, job seekers who have failed a test as
applicants at one company find themselves
facing the same polygraph agency when
they look for work with a different employ-
er. When the agency reports that they Pre-
tausly failed the test, they, are sent on
their way.
More than twenty states and the District
of 0:dumb% have passed legislation limiting
Polygraph Mie by private employers All of
the laws, prohibit Companies from "requir-
ing". the telts.blit ten states.Permit firms to
"request" that individuals take them. Viola-
tion)) are considered a misdemeanor and
generally punished with a small fine. Em-
ployers seeking to skirt the law have several
options. Large chain stores in regulated
states can hire employees in an adjacent
state that has no polygraph statute and
then transfer them to the regulated state.
And employer Pressure in "request" states
can easily make workers feel that they have
no choice but take the test. Finally, some
companies simply ignore that law and pay
the fine If they get caught. Some critics esti-
Mate that as many as 59.000 Workers per
Year are denied employment either because
they refuse to take the test or because of in-
accOraciea.
Because most state regulations are tooth
less, polygraph foes are pushing for Federal
legislation prohibiting such tests.-The poly-
graph Protection Act of 19135,. which wOuld
effectively ban the instrument in the pri-
vate sector le eebeduled for a floor vote in
the West before Christmas. Co-sponsored
by184 repreeentatives, the bill has received
strong leMport from the A.F.L.-C.I.O.
Unlike earlier polygraph bills, which got
bogged &Wm in arguments over the consti-
tutional right to privacy. ILR, 1524 is
couched solely in terms of employment OP-
portunity. Accorditur to labor lobbyist Jay
Harvey, the bill will pass because "the
American people don't like the test" and
"there aren't too many lin Corisressl who
want to Say that they advocate polygraphs."
The bilrs sponsor, Pat William, is also con-
fident of passage. Antipolygraph sentiment
runs the Ideological gamut: Jack Kemp SUP-
ports 1L.R. 1524, and Orrin Hatch and
Edward Zermedy jointly introduced the
Senate version. S. 1815.
The polygraph tridustry's answer to the
ProPosed bari is a Federal licensing law
Which would jet standards for examiners.
That therlestrY favors that approach is
not surprising since use of the machine is
More Widesptead - in the twenty-nix states
that have 'licensing laws than in states
having AO polygraph statutes. The fact that
Shona% is in -Georgia, a lieensing state,
should make legislators wary of the poly-
graph lobby's arguments. If every examiner
had the integrity of a Boy Stout. the Prob-
lems inherent hi the technology of the poly-
graph would not go mar.
A number of big companies, including J.C.
Penney, Sears, Roebuck & Company, I.B.M.
and General Electric, don't use the poly-
graph. At companies that do, workers have
some defenses against It, even without Fed-
eral legislation. Some unions protect their
members, either by winning contract provi-
sions forbidding the test or by intervening
November 4, 1987
to stop an employer from administering the
examination. And workers 111 treated by
Polygraph testing have filed a . variety of
civil suits, invoking state polygraph laws,
Federal and state fair-credit reporting laws
and such legal principles as malpractice, dis-
crimination and defamation. '-A number of
plaintiffs have received awards- in the six
figures. In 1982 an assistant manager in a
Zayre department store in Florida received
8250,000 as compensation for being fired
under what the court described as "circum-
stances implying that he had been guilty .of
a felony." He had failed a lie detector test
two years earlier and was dismissed for al-
legedly stealing $500 from the store. But
after he left, the thefts continued, and even-
tually the culprit?who had passed the
test?tvas discovered. The man sued Zayre ,
for defamation, and the company that ad-
ministered the test for negligence.
? Unfortunately, invasion of workers' priva-
cy and unfair denial of employment would
-not end with the banning of the polygraph.
Bosses today have a battery of tests at their
-disposal that evaluate, urine, handwriting or
personality. Some who have been forced to
abandon the polygraph have turned to writ-
ten "honesty tests." If polygraphs are out-
lawed, workers will no doubt be faced with
the question. Have you stopped ripping Off
theccenpany?
Mr. RAHALL Mr. Chairman, i have lehil
Supported legislation such be .HR. 1212 the
Employee Polygraph Protection Att,' which will
grant Much needed protections for American
workers. This measure Is needed to ensure
that emPleYees. are not unfairly denied em-
ployment and careers wrongfully ruined- based
on the results of the highly questionable poly-
graph test. ? -
The simple.fect is, there Is no scientific evi-
denta that polygraph machineit 'Or other sd-
called he detector tests accurately and 'reliably
'detect dishonesty. Which. is precisely why re-
sults of such tests are not admissible in Fed-
eral. 00Urta. BOMA@ the polygraph test .basi-
Gaily relies .ori simple mechanical readings of
variations in an individual's rate of breathing,
skin perspiration, and blood pressure during
questioning. it is valid only as a test of stress.
How.can stress related to deception be sepa-
rated from the fear, anger, frustration or humil-
iation resulting from being forced to take the
test?
The use of lie detector machines in the
-American workplace has dramatically escalat-
ed in recent years. -Despite the questions
about the. accuracy of lie detector tests, ap-
proximately 2? million we given chyear,
most by -private companies. The tests are an
invasion of a worker's privacy and require an
individual to prove his or her innocence even
without evidence of &Wit:ion of guilt Our
workers should not be- denied job opportuni-
ties or discriminated against because they
may refuse to take such an unreliable and in-
acturatelest or because. of false test results.
' Because State laws have proved ineffective
in protecting America's workers from the abu-
sive And degrading tests, legislation on the
Federal level, such as H.R. 1212, is desper-
ately needed. As Members of Congress. it is
our responsibility to protect the citizens of this
country from unwarranted and unfair treat-
ment. I strongly urge my colleagues to support
this legislation and to oppose amendments
designed to weaken the bill or protect specific
industries.
? Mr. BONKER. Mr. Chairman as an original
cosponsor of H.R. 1212, I want to urge my
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Novembek? 4,1987 CONGRESSIONAL RECORD ? HOUSE
colleagues to support this legislation which
will protect workers from being denied em-
ployment either because of information ob-
tained through or refusal to take a lie detector
test.
Acoordiag tolhe Office of Technology As-
sessment, over 2 million polygraph tests are
administered every year, 90 percent of them
by private employers. Yet, over the years,
studies have consistently shown that poly-
graph tests are unreliable. In most cases, lie
detector tests are inadmissable as court evi-
dence because of their questionable validity.
These same studies have also shown that
lie detector tests can be beaten because they
are only designed to measure physiological
responses with no determination as to cause.
Self-inflicted pain, extreme nervousness, and
apprehension all can influence test results. It
is up to the examiner to interpret the results
and often these individuals are poorly trained.
Beyond the technical questions of validity, I
believe the improper use of lie detectors does
a disservice to our constitutional premise of
innocence until proven guilty. Businesses who
rely on lie detector tests to screen job appli-
cants, assume untrustworthiness unless a lie
detector test can be passed. Unfortunately, it
has been shown that it is the most honest in-
dividuals who suffer the highest incidents of
failure because of their adverse reactions to
having their honesty questioned during these
tests. This injustice is magnified in many
cases, when workers find themselves forced
to respond to questions into areas of their
personal life with little regard for their right to
privacy or relevancy to their work ability.
Many businesses, however, strongly believe
that lie detector tests are an essential tool in
preventing employee crime. Evidence exists,
however, which shows that businesses that
conduct thorough background checks and
foster a trusting work atmosphere tend to
have lower incidence of employee crime than
those who rely on lie detectors to police their
workforce. ?
Last, I am aware that many States have al-
ready passed legislation to protect workers
from lie detector tests as conditions for em-
ployment. These laws have been circumvent-
ed by many businesses who either coerce ap-
plicants into taking tests "voluntarily" or ar-
range for interviews in neighboring States
where prohibitory laws do not apply.
All this evidence points to the need for uni-
form, Federal legislation to ensure protection
of workers' constitutional rights. I urge my col-
leagues to consider the overwhelming evi-
dence against polygraph tests and support
this legislation today.
Mr. HALL of Texas. Mr. Chairman, I rise in
opposition to the Employee Polygraph Protec-
tion Act, H.R. 1212.
I believe that employers should be allowed
the opportunity to continue to use the poly-
graph tests responsibly and for legitimate pur-
poses. The polygraph helps protect the finan-
cial health of American businesses, and the
health and safety of the customers as well as
the employees.
The House of Respresentatives has repeat-
edly voted to permit the use of polygraph in
circumstances where the public interest justi-
fies its use. We have voted to allow the FBI,
the CIA, and other national defense agencies
to continue to use lie detectors. If, as support-
ers of H.R. 1212 suggest, these tests are so
Ineffective and Unreliable, why are we using
them to help protect national security?
Like the Federal Government private buil-
nesses need the polygraph to guard their sen-
sitive information and to protect the health
and the trecurfty of their work forces. Busi-
nesses should be permtted legitimate use of
lie ftwtor testi as long as the rights of em-
ployees are protected.
I believe that this matter is one which
should be regulated by State law. My home
State of Texas has one of the toughest poly-
graph laws in the country which I introduced
when I was in the State senate.
I urge my colleagues to vote against H.R.
1212. Voting for this legislation, is just one
more vote to abolish the right of the State to
govern its citizens without interference from
the Federal Government. ?
Mr. WEISS. Mr. Chairman, I rise in support
of H.R. 1212, the Polygraph Protection Act, as
it was reported from the House Education and
Labor Committee. This bill is absolutely essen-
tial in order to restore basic fairness to the
American workplace.
Let us state the issue clearly. There is no
such thing as a lie detector in the workplace.
There exhit certain mechanical and electrical
devices which are intended to detect lies by
employees or potential employees. But there
exists not one shred of evidence that that is
what they do.
Quite to the contrary, there is a preponder-
ance of evidence demonstrating that the tests,
themselves, often hrs.-And it is- not white lies
that these devices tell, but lies that have seri-
ous and lasting consequences for the lives of
millions of American workers.
The American Medical Association says: ?
Studies indicate that Polygraph tests
result in enough false-positive and false-neg-
ative findings of truthfulness that their
value is little better than the probabilities
of chance, or flipping a coin.
Americans enjoy games of chance as a
form of recreation. But they should not and
will not tolerate employers who play 'games
with the future of 2 million Americans who are
subjected to lie detector tests each year. The
continued use of devices masquerading as lie
detectors is a serious invasion of privacy and
an affront to basic human dignity.
H.R. 1212 would eliminate the use of these
devices in the workplace. It would make it ille-
gal for employers to require or request that
employees or job applicants take Ile detector
tests. It would ensure that employees are noti-
fied of this prohibition, and it would provide
specific recourse in the case of violations.
H.R. 1212 is an urgently needed measure that
ought to be approved intact and without any
weakening amendments.
However, the record of the House of Repre-
sentatives in considering this type of legisla-
tion is far front pristine. Last year, during con-
sideration of a similar measure, the House
voted to exempt industry after industry from
the proposed prohibitions on polygraph use. In
the end, the bill was so full of loopholes that it
really amounted to an endorsement of the use
of polygraphs. Though I strongly approved of
the original measure. I was forced to vote
against the final version that resulted from re-
peated amendments on the House floor.
I fervently, hope that the House will not
make the same error this year. There is no ra-
tionale for exempting specific industries from
prohibitions on polygraph use. The fact is that
11 9845
polygraphs are just as harmful and just as In-
accurate in all wOrkPlage SettinDs-
I tlwirefore urge my colleatiires to join me in
defeating amendments to exempt different in-
dustries from the: bill's prohibitions. For a bill
riddled with exceptions will be worse than no
bill at all. It will only sanction a practice that is
fundamentally at Odds with individual rights.
I. for one, will not hesitate to vote against
the final bill if it sanctions polygraph use in the
guise of prohibiting It.
Mr. BRENNAN. Mr. Chairman, I rise as a
cosponsor:and strong supporter of H.R. 1212,
the Employee Polygraph Protection Act. This
needed legislation seeks to limit the growth of
he detector testing in the workplace?which
has tripled in **past 10 years. -
It is estimated that more than 2 million poly-
graph tests we given each year. In fact, 98
percent of those tests were;trot given by the
FBI or the ClA, but were given by privets busi-
ness. Some three-quarters of these tests were
given for preemployment screening.
Our criminal justice system presumes that
an individual is Innocent until proven guilty.
Unfortunately, use of the polygraph stands
that important principal on its head as It re-
quires someone to prove their innocence. As
a former criminal prosecutor I am fully aware
of the unreliability in these gadgets. Courts
refuse to accept polygraph resuks and it is
sadly ironic that criminals are protected from
polygraphs, while American workers are not.
This legislation attempts to address that un-
fairness.
Twenty-two States and the District of Co-
lumbia have approved legislation prohibiting
polygraph for use in the private work force.
Another 19 States have attempted to regulate
their use. However, the sepwste nature of
these laws have not effectively protected
workers from being subjected to these unreli-
able tests. Many localities are circumventing
the law by requiring prospective employees to
take the test in a neighboring State which
allows polygraph testing.
H.R. 1212 is a prudent and moderate ap-
proach to the problem of protecting our citi-
zens from abuse of lie detectors by manage-
ment. American workers deserve the same
protection afforded to those accused of
crime?the ability to retain the presumption of
innocence until proven guilty which is funda-
mental to our way of justice.
urge my colleagues"' to join roe In strong
support of H.R. 1212.
Mrs. COLLINS. Mr. Chairman, I rite in sup-
port of H.R. tett' the Aircraft Collision Avoid-
ance Act of 1987.
As many of my colleagues have remitted,
this bill is long Overdue. The Federal Aviation
Administration has dragged Its feet in imple-
menting collision avoidance systems which
are already available. The FAA has failed to
foster the development of the next generation
of collision avoidance systems.
As chairwoman of the Government Activi-
ties and Transportation Subcommittee,
charged with oversight 'responsibilities of the
FAA, I am aware of the foot-dragging potential
of that agency. In the case .before the Con-
gress today, 'FAA has 0004. for years man-
dating the Installation of -so- called one-dimen-
sional collision avoidance systems. The agen-
cy's decision appears to have been to delay
this first Generation system undi the more so-
phisticated system is perfected. Unfortunately,
?
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9544 CONGRESSIONAL RECORD?HOUSE
the two-dimensional systems have Dot come
as middy as FM had hoped In the mean-
time, the agency has Oro nothing, Aline
PesseOPPOI 'are not receiving at the. protection
that presentuktylichnotwookors.
suggest that FAA considertself oft notice.
The Congress le going te =WM* spay very
dose atterrikei to FM ectelese...Rulemeterg,
resource, eneweimmt, estsee tesennete-
Nee whit* PM nor he not property met,
we be suldoelIi eringreeskinal scrutiny. It
need be, legislation wilt be veered. At we
etiewernon et We ovenileht sebeerivellere, I
Mend le centeseismy stibeentiveterfe moni-
left vta hessInge and wpm*
t sante commend Me masts et Mir eh
nor Pubes Weds and Itammeistios Caen&
tel and the Courennee Us gelence.wri T.
nelegp, Itelideloseroodie appose Oh reerwere.
istAwronsa addressed the
Committee: E mark, win appear
hereafter ht the Extensfene of Re
marlin/
Mr. OUNDTR5Orf. Mr.
hut iintlft to point out fu
not be hypOttitee here today.
not impose ,on the private sector
what we are Wririnituy to tee _for our-
selves.
remind my eollellettett every one of
them vim has- spoken heaupport of
tisk harkintiOn losearneedr to be re-
mask& thee ate Ansel et Shit peer by
a vote if 4441 estildnirioninseerrat
ttoim.s mneruinimen ers Ittileallretth
foreign_policy in the implementation
afterimages` yielley.,
os mar U it tug mat, bps vie* of
MS to 414, eatabliehell the see of a
Mennemeng gokepreph: emsoninatkor ter
nadeed menedity pergoess.-
The CMLIIIIIIAIL -All *knot has es-
Puma* to the lulu Um committee
ansoodatent. in the nelanre of -a =WM-
linin arm griaded in the reported bill
shall be considered as an original lie
ler the pause* , et smesdinent end
sae% meadow shall he sonsideried as
hawieg hoes maul
The Clerk will deehmatemetion 1.
'Ike teat at motion k ia as to
Nord eueeket Ii thsSemtoad lows of
iikoreseeteeem of the Ungava Skier of
America to Consmassareaddsd.
=non i. snow TITLE.
This Act may be cited au the "Employee
Polygraph Protection Act". -
My. NEAL. Mr. Chairman, I nave
strike the last word.
Clutionen. I would like, to_
again. Esslier raised two owed
=caning oPPosition to this. hill.
la the question. the Vel7 basico
coaestatna our srattun of Justice,
wherein we eangoo. Our Pere* to be
Innocent until proven guilLy-itis abso-
lutely clear that the widespread UM of
110IYMIA testa liaSlUnta Quite the oh.
posits. It essentially says, that we
assurne people to a Variety of circum-
stance* are guilty and we think its ap-
propriate. as. a COndition of employ-
ment in some 'cases, or under other
conditions that they should have to
prove their innocence.
Would one of the oPpcinents of this
bill 'please help me in understanding
how you can. Possibly lostifir the idea
that we altotdd turn our system of Jur
flee on It head by 0412 asstwaing guilt
and Muting-Pool* to Prove their io-
iuseence.
Mr. YOUNG of glorida. Mr. Chair-
men. waUke gentleman yiekil
Mr. I1AL L?bapple ht Yield te
the gentleman from Inesida,
Mr. IR:mm:4 at Merida- Mr. Chair-
man 1. thank the gentleman for yield-
tag.
would Moe to suggest to the gentle-
man that in meet mom the use of the
PolYerlieh *lust put of the tool that
-1aduryua..ebe Use ease of the De-
teem Delreeenent. it is *at a part of
the poem they 11Mg whet &tome*
ing whether or not mane ens abreact be
given atoms to sus moat senalitrana-
tieing allserite onarets, certain court
eases in ser seraritey in the last comple
of yeses shitout, noisdato
theelmployena
:an me read hot s-very brief state-
ment
to rempasse le the gentielnan's
gusenon.
Mr. Mak Is the gentleman re-
sponding* thilegoseties.
Mr. YOUNG ef Merit& Yes, 1 am
reependther Is the?genhentares twee
tion.
let WEAL AN rigid. I would eke to
beer&
TOVIIOnt P1 Tisk is front
testkatmthtPierida diseretory
of Bede ter Me veto--by /eat year.
He said: "
Recent iftkation hostel established the
eblkaliee meteorologist seamiest adequate
boskgrannt ninklattone oesure the pro-
*Wow we the pelt/let lItulkosrfrom several
eases natlerraide support Mk statement
One recent pending rade invokes a earrnt
clash* *mow tramet omplogoe need
mod murtiesaittlIgehildirdAltiont. The pso-
Wietar has eels imetiew fallow* eisfoon
wiegnare ensoloyment acrissing. Weetricells
for not uathe VI suitable resource?the
Polygraph.
D 1211)
Mr. NEAL, Ur. Chairman. reclaim-
ing my time, the gentleman Is not re-
m:scalding to My quer*"
Mr. YOUNG of Florida Try again.
Mr. NEAL. Mr. Chainnan, the gum-
911 Ia. I say to the
that the pr
use of poly
aside the
which I hope
ut pittting
it true that When one says to a
Prospective emplOyee. or to others
under a wide variety of eireUrdatences
that as a contiltirm of Otte thing or an-
other one hes to take Mkt teet that we
are assuming their guilt and regal:dna
that they prove their innocence? That
is the question.
Mr. YOUNG of florid& Mr. Chair-
man, if the gentleman will continue to
yield,! do not see it that way at &H. If
that were the case, then the Federal
Government would obviously net be as
heavily involved in the use of
graph as as we preSently are.
Nonember 4. 1.987
Mr. NEAL. That Is not an. answer,, let
me say to the genUenten.
Mr. YOUNG of Phuida- The answer
Is no, that is not the case.
I disagree totally with the gentle-
man's easuniption.
Mr. NEAL.
It me reclaim to time
and comment on this ggestion of the
Slade/Al Government% use of the poly-
graph.
The fact. is that when WU entrust
people with important security Woe
matt= or other important teeigiosibil-
Aka in our Gavernesent an the basis
at their hartug passed a Poiligoktds
test.. we are running on emeanou risk.
To those wile object, to this leakdation
because it coatintrea to allow agenda
of the Pedant Ciovernment to use
thilsosteste. ser I think they are eor-
teat. We ere runaing a grave risk I.
seeurily by dePending on
which are eleady sexy
inammendo. We have had impor-
tant teetionmy kens & numbee at gen-
tleman on the floor, hoilielling the dis-
tinguished gendeauto?from Utah EMr.
Niatoes4, a geelessor at statistece.
which *dhotis that the onor sate of
thane goolgets is bleeder* WI.
ietillgir 01 Yberlds. ms.
mom well the ouldenten yieldl
Mr. NEAL. I yield to the emistleaten
lam Pledge.
Ma TOMO at 10/111242. Mr. ClUde?
man, I metddtkhe mapend to Idea
very salmi ismil toss to. Sailaa11.4
itadralkier selentiessigo what' an aging
to my- The Deism Deparfteent be
aim the pelyglaph mem ammatimg
peoples whorinereaurned kr top mod
and amuse type deseenen. vase
the pelygnapb slily am a mot at their
entemdst mrsiseas.. It is not the total
debeemiting feeler.
The gentleman suggested that to
allow seeassitse that kind it seems just
on the huts of a pelpapeph in a woe
risk. Bei irt am.nay to the gentiemen
that that be not bow it is dens Poly-
graph errsatien is just put re a
lengthy pumas mud to clear ome ter
assess to ciameited mateetel.
The C.MANIMAN. 11 these wir no
amendments- to neellour I, the Clerk
IRO desimmieseetten 2.
4*The tut of section is Irak/lows
PROIMIMONS 02211.112DIffeerge USE.
shall be =bruin! kr any employer en-
in commerce or in the production of
for commerce?
dirserdy or todkaraly, So requhm, re-
quest, suggest, or cause any anIployee or
larespoefine *protons team. or admit to
say 11* detector test:
(21 use. wept. rake tabor inquire con-
cerning the malts of am lia detector test of
any employee or prospective emplOyee:
MT to discharge, dismim, discipline in any
manner, or deny employment or promodon
to, or threaten to take any meth anion
aosdast?
(*law aandoros or peammettsesosoloyee
*heisehusa. deatinsa. or fila to taire
submiltesstg ***star test; or
tlk) &AY ealitkeree Or Prosnortiea morasses
on the hula of the mulls of any lie detec-
tor tester
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November 4, 1987
CONGRESSIONAL RECORD ? HOUSE H 9547
(4) to discharge or in any manner discrimi-
nate against an employee or prospective em-
ployee because?
(A) such employee or prospective employ-
ee has filed any complaint or instituted or
caused to be instituted any proceeding
under or related to this Act;
(B) such employee or prospective employ-
ee has testified or is about to testify in any
such proceeding; or
(C) of the exercise by such employee, on
behalf of himself or others, of any right af-
forded by this Act.
The CHAIRMAN. Are there amend-
ments to section 2?
Mr. BARTLETT. Mr. Chairman, I
move to strike the last word.
(Mr. BARTLETT asked and was
given permission to revise and extend
his remarks.)
Mr. BARTLETT. Mr. Chairman, I
rise for the purpose of clarification.
Mr. Chairman, my good friend, the
gentleman from North Carolina [Mr.
NEAL] LS so eloquent on this case, and I
want to pursue a bit of what he has
mentioned a moment ago because I
think the House needs to understand
It. I would pose a question to the gen-
tleman in a moment and give him
ample opportunity to respond.
The House should be willing to take
one of two positions, but not both si-
multaneously. We should either con-
tend, as the bill does, that the poly-
graph should not be used on any occa-
sion or we should permit it to be used
but not as the sole determinant.
The gentleman from North Carolina
[Mr. NEAL], was eloquent a moment
ago in essentially saying it should not
be used as the sole determinant.
Frankly, I agree with that.
I do want to point out to the gentle-
man that one of the key features of
the Darden-Young substitute is that
for private employment as well as
public employment, that the poly-
graph shall not be able to be used for
discharging, disciplining, or denying
employment or promotion to any em-
ployee as the sole determinant, or
based solely on the analysis and opin-
ions of the polygraph examiner.
My question is, is the gentleman pro-
posing that we prohibit the use of
polygraph even as the sole determi-
nant, or does he believe that it should
be as is currently done in national se-
curity, permitted to be used as one de-
terminant, but not the sole determi-
nant?
Mr. NEAL. Mr. Chairman, will the
gentleman yield?
Mr. BARTLETT. Mr. Chairman, I
yield to the gentleman from North
Carolina.
Mr. NEAL. Mr. Chairman, the over-
whelming evidence offered before our
Subcommittee on Legislation and Na-
tional Security on this question indi-
cates that the polygraph tests are not
lie detector tests. They are not reli-
able. They are not accurate. They
cannot be depended upon.
So it is ridiculous to use these tests
as a determinant of accuracy when
they are inherently unreliable, as the
gentleman from Texas [Mr. Booms],
the chairman of our full committee,
pointed out.
They can be useful. We can scare
people with them. As long as people
believe there is a level of accuracy
here, we can scare people into admit-
ting guilt, but the fact of the matter is
that these things are inherently unre-
liable. It is no more accurate than the
flip of a coin, as one witness said.
Mr. BARTLETT. Mr. Chairman, I do
not want to put words in the gentle-
man's mouth, but I do want the House
to understand. The gentleman then is
advocating that we prohibit the use of
the polygraph in all cases, even as one
determinant, rather than prohibiting
its use as a sole determinant?
Mr. NEAL. Mr. Chairman, if the
gentleman will yield, that would be my
own preference. That is absolutely cor-
rect. I think it is a very dangerous
idea, especially dangerous to be using
these gadgets in the area of national
security.
Mr. BARTLETT. Mr. Chairman, my
question is, even as one determinant?
That is my question.
Mr. NEAL. If I could respond to the
gentleman, I would say that if we are
willing, as the gentleman from Texas
[Mr. Boo?Ks] pointed out in his testi-
mony, to start again using the rack or
the dunking stool, or some other item
of witchcraft, certainly those could be
useful in scaring people into admitting
guilt and so on.
If the gentleman would like to
broaden the arsenal of our tools that
we are going to use in this area, I
guess we could include polygraph with
those kinds of gadgets, but they are
about the same level of reliability.
.Mr. BARTLETT. Reclaiming my
time, the gentleman does not believe
in what is explicitly provided for in
the bill, that is the use of polygraph in
national defense and national security
by the Government. Does the gentle-
man oppose that section of the bill,
and think it should be deleted?
Mr. NEAL. Yes, I believe that is a
dangerous procedure. I believe we will
endanger our national security by that
use.
Mr. BARTLETT. The gentleman be-
lieves it should be used in no case
whatsoever. Would the gentleman
then see this bill as the first step
toward prohibiting the use of poly-
graph in national security cases?
Mr. NEAL. Mr. Chairman, I would
hope so, because I think we run a
grave risk of endangering our national
security by relying on these gadgets
which are inherently inaccurate.
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield?
Mr. BARTLETT. I yield to the gen-
tleman from Florida.
Mr. YOUNG of Florida. Mr. Chair-
man, when the Walker spy case first
broke, I had the opportunity to in-
quire of the Chief of Naval Intelli-
gence, what he needed to effectively
do something to prevent Walker spy
cases from happening, he responded
by saying, "we need authority to poly-
graph those who seek access to classi-
fied information."
This is the Chief of Naval Intelli-
gence. The Secretary of the Navy
made basically the same statement as
did many others. These are the people
that have been given the responsibility
for our national security. They tell us
they have authority to polygraph.
If you don't trust them, than fire
them. But if you do trust them, at
least give them the tools they need to
meet their responsibility.
The CHAIRMAN. The time of the
gentleman from Texas [Mr. BARTLETT]
has expired.
(By unanimous consent, Mr. BART-
LETT was allowed to proceed for 1 addi-
tional minute.)
Mr. BARTLETT. Mr. Chairman,
what I want to say very clearly so that
everyone who is watching this debate
understands, is that the debate is be-
tween the proponents of H.R. 1212
who have written a bill that would
prohibit the use of polygraph in all
cases except for national security even
though national security would likely
be next, but just prohibit the use of
the polygraph as any kind of determi-
nant comparable to prohibiting the
use of reference checks because they
are not perfect, or personal interviews,
or written tests. That is one side of the
debate.
The other side of the debate, would
be the Darden-Young substitute that
would permit the use of the polygraph
under licensing but only if used as one
determinant, but prohibit the use of
the polygraph as the sole determinant.
Darden-Young would correct what-
ever abuses the sponsors would pur-
port to have in the marketplace by
prohibiting the use of the polygraph
as the sole determinant.
Mr. Chairman, I yield to the gentle-
man from North Carolina [Mr. Nm].
0 1240
Mr. NEAL. I thank the gentleman
for yielding. I would like to propose a
question to the distinguished gentle-
man from Florida.
The CHAIRMAN. The time of the
gentleman from Texas [Mr. BARTLETT]
has again expired.
(By unanimous consent, Mr. BART-
LETT was allowed to proceed for 1 addi-
tional minute.)
Mr. BARTLETT. Mr. Chairman, I
continue to yield to the gentleman
from North Carolina.
Mr. NEAL. Mr. Chairmen, when the
gentleman from Florida pointed out
the statement regarding this Govern-
ment official who thought that the
polygraph was the most valuable tool
at his disposal, or whatever that exact
quote was, was it his position that the
polygraph test was an accurate one, or
was it his position that it had utility
because some people believe that they
were accurate and he might be able to
scare someone into a confession or
something?
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H 9548 CONGRESSIONAL RECORD? HOUSE November 4, 1987
Mr. YOUNG of Florida. Mr. ant*.
man, will the gentleman yield?
Mr. BARTLETT. I yield to the gen-
tleman from Florida.
Mr. YOUNG of Florida. Mr. Chair-
man, I thank the gentleman for that
cisestion. I would say again that none
of at are contending, even In the field
of national defense, and amnion, in
the field of national defame, none of
as are contending that the polygraph
Is the ultimate tool. But ills a tzemenf
dous tool in the overall Drocent
doing background research to
mine whether or not access to the
most sensitive national defense aecreta
of ow Natioa with be granted. No, it is
not a single tool. We have made that
point time after time after time. It is
one of the tools, and it is it most effec-
tive tool in conjunction with the other
parts of the procedures that are used.
To get security clearances on occa,
don takes a year or longer when get-
ting a person cleared for a particular
type of classification, and the poly-
graph does not take anywhere near a
year to perform, as the gentleman
knows.
The CHAIRMAN. The time of the
gentleman from Texas (Mr. Beirmarrl
has again expired.
(On request of Mr. MAIY112f12 and by
unanimous consent, Mr. Baneterr was
allowed to proceed far I additional
minute.)
Mr. MARTINEZ. Kr. Chahnian, will
the gentleman yield?'
Mr. BARTLETT. I sat happy to
yteld to the gentleman from Ca/kW:-
pia.
Mr. MAR'n/432. Mr. Chairman, the
fact that the gentleman say* it tairea a
year es a year and a half to get clear.
*nee
on these high security matters in-
diestes that, the Federal Government
at least in the uses them osseisines ie
not relying on them.
The problem); lies in that a private
employer often does rely totally on
that and does a very cursory investiga-
tion once he determines that the evi-
dence presented by this panne* test
is valid, and he does assume that it is
valid. They have testified over and
over again in the hearings that they
believe in the reliability at this poly-
graph machine.
The problem that nobody here has
talked about is that, there is another
flaw in It, and that is the human, flaw,
because these machines only read your
blood pressure, your temperature and
miscellaneous things like that, and
then that polygrapher, depending on
his training and his biases, is the de-
terminant of whether the gentleman
is lying or not, and that in many cases
has been proven, as is true in the case
of several court cases which have
taken place, not to be valid.
Mr. BAIrrLETT. Reclaiming my
time, I understand the gentleman's
point. Of course, what the bill does is
permit the use of the polygraph with-
out restriction in national security
cases. Bo if it is not accurate it does
not provide for the sole determinant
standard. The Darden-Young bill Pro-
vides for the sole, determinant stand-
ard, prcitribits a sole' determinant use
of the polygraph. The Darden-Yotmg
bilt does it right
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield?
Mr. BARTLNIT. I yield to the gen-
tleman from Florida.
Mr. YOUNG of Florida. I thank the
gentleman for yielding. He has very
eloquentfy made the point
dete$4410fts g?1ng te
ph whether this hill
passes or not.
What we are trying to do is make
sure that the person conducting the
examination is professional, has been
licensed and knows what he is doing,
and that the person being examined
has legal protection of his personal
and civil rights.
Mr. WILLIAMS. Mr. Chairman,
move to strike the last word. / am
going to use 30 seconds of my 5 min-
utes and plead with my colleagues not
to ask meter yield to them.
Mr. Chairman. the hat time the bin
was on the floor of the House it took
us 6 hours to complete ft. We are now
debating specific points that we will
debate again when these amendments
come up and when the substitute is of-
fered. I .hist anpeal to my colleagues to
waft until we get to- the specific section
of the bill where the amendments can
be offered before we start a debate
that we are going to go over again
when we do reedit that specific section,
which in most instances, for most of
the amendinents, will be section 6.
We hope to be able to adjourn
around dinnertime, but if I recollect
how this debate proceeded a year ago,
ft is moving considerably more siovey
now tharf it did then, and then it took
? hours. Bo we went fell debate and
that is the Tamen I requested a fully
open rule. But I encourage me col-
leagues to allow this process to more
ahead.
I yield beck the balance of my thee.
The CHAIRMAN. Are there, any
amendments to section 2?
If not, the Clerk will designate sec-
tion 3-.
The text of section 3 is as follows:
MC.& NOTICE OF PROTECTICIN.
The Secretary of Labqr shall prepare,
have printed, and distribute a notice that
employers are prohibited by this Act beta
using a lie detector test on any employee or
pramective employee. Each employer atoll
Peat and keep meted. hi easspiceoes pieces
limo its premises where notices in employ-
eft and prospective employees are custom-
wily posted, the notice distributed by the
Secretary under this section.
The CHAIRMAN. Are there any
amendments to section
If not. the Clerk will designate sec-
tion 4.
The text of section 4 is as follows:
S. a AUTHORITY 06 TI R SICIIRTMAY OF LABOR.
(a) IN Ontsam..?'rlie Secretary of Leber
shall?
(1) issue such rules and regulations as may
be necessary or appropriate for carrying out
this Act;
(2) cooperate with regional, State. local.
and other agencies, and cooperate with and
furnish technical assistance to employers,
labor organizations, and employment agen-
cies to aid in effectuating the Purposes of
this Act; and
(3) make investigations and inspections
and reclaim the keeping of records meetsary or appropriate for the adrainiatration
of this Mt.
(h), Swarms Atratoarry.?For the purpose
of any hearing or Investigation, under this
441,arirtztSecretary shall have the authority
Its sections 9 and to of the Feder-
al Trade Commission Act 115 U.C. 49, 54*.
The CNAIRMAN. Are there any
amendments to section 4?
If not. the Clerk will designate sec-
tion 5.
The text of section 5- is as follows:
SEC. 5.REsuacIrPKivas1Oie.
(a) Cons Paustiass?(k) Sullied to pare-
graoh (2)?
(A? any eloPioYer who, violates. section 3
may be maned, a, civil money penalty not. to
exceed $100 for each day of the viohtion;
and
(13) any employer who violates any other
precision of this Act may be assessed a civil
penalty net le exceed $10.090.
(2) In detairndedrig the amottne aim gen-
shy under paingraph CO, the SeeretarY
shall take into amount the previous record
of the person in terms of compliance with
this Act sad the gravity of the violation.
(3) Any civil penalty assessed under this
subsection shall be collected in the same
manner as is required by subsections (h)
through fel of section 599 of the Migrant
and Seasonal Agricultural Worker Protec-
tion Act (29 U.S.C. 11534 with respect to
deli penalties assessed under miameetiwt
of such section.
(b) hum/crews Agnorta Er THE &ow
TARY,--The Secretary may bring an action
to restrain violations, of this Act. The dis-
trict courts of the Inifted States shall have
jurisdiction, for cause shown, to issue tem-
porary or permanent restraining orders and
injunctions to ITINI/Uille compliance with this
kr) Pliwas CHM. bersems.-41> An em-
ployer who violates the provisions of this
Act shall, be liable to the emplowee as Pro-
spective employee affected by such viola-
tion. An. employer who violates the provi-
sions of this Act shalt be liable for such
legal or equitable relief air may be appropri-
ate, 'Deluding (without limitation) employ-
ment, reinstiaemeat, promotion, the pay-
ment of as lost, and an additional
amount as sensamential damages.
121 AA adios to reamer the liability pre-
scribed tit paragraph (1) may be maintained
against the employer in any Federal or
State court of competent lurisdictinn by any
one or more empfeyees or prospective em-
ployees (or any person acting on behalf et
such emplayee or elan's/Met) for or in
Windt of Monad or themselves and ether
employees or prospective employees similar-
131 situated No such civil action may be ann-
ounced more than 3 years after the date of
the alleged violation.
(3) The court shalt award to a prevailing
plaintiff ht any action under this subsection
the reasonable costs of such action, Meted-
lag attornepe feat
Mr. GITPIDERSON. Mr. Chairman,!
move to strike the last word.
MY. Chairman, I want to call to the
attention of my colleagues seetfon 5 of
this bill. I do not have an amendment
at the present time and / do not
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intend to offer one bemuse / do not
think we ought to, pursue along an ac-
rimonious debate over the penalty sec-
tion el thole bill I think the subseanee
of the bid is fro more knportant
But I went people to understand
what section 5 dem here. It not only
imposes rather sigaiticant trumcial
penalties of up to $10,00, for any em-
ployer vrho violetea the use of tit* test
when they are beamed. hut II alba isme,s
so far aa amine tbat owe this legisla-
tion is parsed the, the Seeretary cif
Label shale prepare, have printet and
distribute to every erneklees over
this emery a notice that. nee lie tile
teeter testa menet he required.
That is geed, I haven& problem with
the Secretary at Lebo, doing that.
What I have a problem with, eat
what people ought to be aware of be
this legislation is the fact that &ulnae-
t ion. (a) of section, 5. provides, tor a pen-
alty net to exceed glee per day when.-
ever that sign is not posted, from here
to eternity.
I do not know how many of ray col-
leagues have ever worked. in the- pri-
vate sector. I am going to assume the
vast malority of us have. think, we
have WI gone past those time crock.
areas where you punch the time clock
and you see some notices and you do
not see some notices. I have to tea my
colleagues that as a youngster? in high
school and in col1ge. r had lobs as, a
janttor. I got to da the cleanthg, and alt
of that and as we would go through
and dean, and In particular when we
would prepare for special occasions at
the industry- I was at, sometimes no-
tices that were aR dilapidated, that
were owldatect. that were faded', discol-
ored, we weed throw all of that awa',
clear the blackboard off so that we
could start a new set of notices on the
bulletth beard.
I want my eelleaguee to know that
the legislation in front of us new h
going to' require a $10, penelty, up to'
$100 enmity a db y ler anyone who in-
nocently happens to have had some
employee, who. is a you're high school
Janitor who' aecidentallly, unintention-
ally, not knowingly, happened to' pelt
that notice down.
Me DARDEN. Mr. Chairman, will
the gentleman yield?
Me. BARTLE'Fr: I ant happy be
yield to the gentleman from Georgia
Me. DARDBN.. Mr. Chairman, I
thank the gentleman for yielding'.
woe!'" like to use this opportunity, Mr.
Chairman, to- point out one distinction
here that f de net think has, been.
made very clear to the Members of
this body. The dlistinguisheet gentle-
man from North Melilla Mr. Meal,
kept on talking abeet how this bill
would somehow requiee a person the
give testimony' against himself and ob-
viously violate the fifth aniendinent to
the Constitution- of the United Slates,
which of course provides. that no
person Ovalt be eempelled to. testify'
against himself.
It is important in note, Mr. Men
man, that most of the complaints we
have hefted about the polygraph relate-
to the specific- conduct of Taw enforce-
ment agencite, whether or not a part.
ticalar sheriff or a pollee agency or a
bureau of investigation- has to feet
properly conducted a polygraph extmr-
ineton, or to many instances' her the
scope of the, examination gone tee far,
or has the person undue:keg it for the
pollee actually bun. enelliee.
I wooed like to point out to the
Members at the body, Per. Chairman,
that the actesities ot peke agenetua
whether it be State, Federal, or tame
are absolutely exempt under this law.
So. it we are worried about innocent
people annekwar betegfarcet into con-
fessing or to mine way ads:Weber gunk
or being feud Ittditt *attire Me at a.
Poetgrapk, this MIL doe& not dos bit of
goad,, because this ei& excludes all. ac-
tivities at seat pcdiceloace or weir other
law enforcement agency.
So I would like toe the body to- keen
that, in. mind, Me. Chatemaia that, we
are sot, really getting to the problem if
we are interested in pollee abuse aad
a person, having to. violate the fifth
amendment. What we are doing here
Is simply punishing the. private meter
by saying you cannot, do in the private
sector what you can, do in the public.
sector.
Mr. VirILLIAMS Kr. Chairman. wiil
the gentleman yfeld2
Mr. GUNDERSON.. I am happy to
yield' to the. gentleman from. Montana.
Mr. WILLIAMS. Mt., Chairman. I
want to nate that the gentleman from
Wisconsin raises a good' paha, and
that is whether or not the penalties
that are assessed here, the civil penal-
ties, are too high,, given the violations.
I` would remind the Reuse that they
are within keeping with otter penal-
ties in similar-types of *esteem
I would also tell the House that this
$10,6130- fine is a insatihrtrat and' that
the Act goes on to say that the Secre-
tary shall take into account the gravi-
ty of tkre violtelett
Finally I would remind or ask the
House-to recall that there was a recent
award against an emote= a drat
company br the United States, a
recent award against that company. of
$4 million for violating the rights of
an employee to wboin they gave a
polygraph. examination.
The CHAIRMAN. The time of the
gentleman from Wisconsin. (Mr.. Cem-
DERSOnl has expired
(By IManitTiatift consent, Me Gene
BERSON was allowed, to proceed for 30
additibusl, seconds.)
Mr. GUNDER,SON. Mr. Chatrmarr, I
want to paint out that the gentleman
from Montana and I really have no
dispute en the penalty section for the
violations of the use or the. abuse of
the polygraph. My detection. is the
fact that we are Wog to send that
signal- in this iegbriatibir that we wilt
provide penalties of MP to $?* per dal,*
if there is net this little paper natter
?tangier BP to every employees bud-
Mg around dee country.. That Is exces-
sive, that is extreme, that is asking- for
II '54'9
trouble, and I think that section ought
not be In this
Mr. LUNGREN. Mr. Chairman,
move to strike the keit word.
Mr. Clukinnan. I was intrigued while
sitting in my rake listening to the
debate to, hoax mane at the. comments
of the proponenta of the bill, that do
not seen. to ins to matak vs with( wbat
Is in the bill itseig.
The point, bait been made by some
wha oppose this Wit that (tura an we
speak these sae isatancee ha which em-
ployees age using lie detester *ate im
?Au to take rumpleige from then- Yet
if my colleagues read the Imeasiega at
this ljkk, they wail& not he able to, ear-
tunarily do that. Whet Became it in
unlawful for any elnedemee "to luta
accept, seller tra or inquire conceming
the EINERMIS Of My We detector tent at
any employee or ProaPeetto er",p-
ee." So men if the employee requests
of his employer per/Masten to take a
lie. detector testso that thee indleddual
migbt be able to have mom evidence
that in fact, he or she, War not In-
volved in acenetkkig that was not ap-
propriate, is would he a vie/otiose at'
the law ter the smatterer to accede to
the request of the eautoyee te de
that.
I do. matt matersland why we are es
wonted abate Mit lout that we would
even preetibtt el employee from 11011D-
tarily taking it, and then allowing or
asking or requesting or hegfelog their
employes to look atitt
The other thin I weal* mention is
In this. ease we want to make sure we
relay. seek it. Is the employer If yet
look at the kat three lines= of station 5
yes find this: "The court shall award
to a prevailing- plaintiff in any anion
under this subsection the reasonable
costa of peek seetest, kreadling attor-
neys' lees:*
Nee it. does not say. the court shalt
award the "'malting paste: as other
words, a case, no matter how fetnikes,
brought against as emploper by the
emptopee that Jacinto/mined to be friv-
olous will not allow that etatdoyer to
get back the coats ineureedi That may
be a very expensive propagate& when
we realize up in the previous ee
tionitsayn
An action Is recover the likaillty, pre-
scribed in parassaph elni may be 'maintained
again* the ambits In any fade's/ as
State comb it competent jadeite.** nip ana,
one as saws. 0114110100611 es penipsiothe
on-
ploycas. (or ens person actin& on behalf at
such employee or employee/0 for or In
behalf of hftneelf or themselves, and" other
employees or- perspeethe emphiYeeiv hi a
simihreituation.
In other wordia ft legfttmizes. class
action mitts.
Set we can have a situation In which
an employee- brews a frivolous- case on
behalf of other employees or other
members of a class before a court go
through the whale case, all the way to
trial,, and at that-point intim when it
IS tossed out the employer is reit with
the large expenditure of lendia hxd'utf-
itig attorney fees, but deer not get the
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benefit of this section which says only
prevailing plaintiffs can be recom-
pensed.
0 1255
Now I do not understand in this
House how we continually want to
make sure that we sock it to the em-
ployer even when the employer is
proven to be without fault. Continual-
ly we have bills brought to us here
that say, "By God, we are going to
sock it to you and we are going to put
the fear of God in you, so that even
though we don't have a good case
against you, we are going to punish
you nonetheless."
That does not make a great deal of
sense to me. It is a manifestation of a
prevailing attitude in this House that
seems to say the deep pockets of the
employer are so deep we can keep dig-
ging and digging and digging.
Why we have this bias against em-
ployers in this bill, I do not know.
"You shall award to the prevailing
plaintiff, only" but not to the prevail-
ing defendant.
The other factor I would like to dis-
cuss here is the question of whether or
not these lie detector tests have any
validity whatsoever.
We seem to just easily jump over the
fact that we have required them in de-
fense, in the intelligence community
and now in the foreign policy commu-
nity.
As a member of the Committee on
Intelligence, I can tell you that the in-
telligence community absolutely be-
lieves in the validity of these tests, not
as the sole determinant but as part of
an entire review of prospective em-
ployees. In fact, in the last number of
years that this Congress has been
most critical of the intelligence com-
munity for security lapses, one of the
problems cited has been the failure to
administer such tests to individuals
subsequently found to have skipped
out with State secrets.
The CHAIRMAN. The time of the
gentleman from California [Mr. LON-
GREW has expired.
(By unanimous consent, Mr. DIN-
GREN was allowed to proceed for 3 addi-
tional minutes.)
Mr. LUNGREN. So, in fact, as Mem-
bers have suggested in debate here,
there is a schizophrenic attitude evi-
dent on the floor today which says
that we can use, in fact we require to
be used, this tool as a pre-employment
practice or as an investigative tool
with the intelligence community of
the United States. This is because we
think that the national security inter-
ests of the United States are so impor-
tant Yet the validity that is assumed
when we grant that authority and ob-
ligate those agencies to use it, is
thrown by the wayside when we dis-
cuss it here.
Now I have in my previous life as an
attorney had the opportunity to repre-
sent some security companies, that is,
those who provide security. And I will
tell you I am not satisfied in all cases
that the standards that presently
apply for those people who are al-
lowed to carry guns and have badges
on their shirts, rent-a-cops some
people call them, are as great as they
ought to be. But it seems to me non-
sensical for us to say that a security
firm that is going to put an amend-
ment, a loaded gun on the hip of its
employee to go out and supposedly
protect us, is not going to have the
ability to use this tool as part of an
overall approach to its employment
practices.
We allow these things to be done
with respect to our police depart-
ments. In fact, a Supreme Court case
found that a police officer accused of a
particular offense may be required to
take a lie detector test and his job
would be in the balance if he failed to
do so. This was allowed even though
the Court would not allow that it be
required in a criminal setting.
I also do not understand why we say
here that the polygraph is not to be
used because it is a fallible instrument.
Every single one of us in this Chamber
is fallible. In fact, last Thursday we
found out how fallible our rules are in
this House. Yet I do not see anybody
here saying that we ought to close
down completely, not do the Nation's
business because we have imperfect
laws or imperfect rules. In fact, some
Members on that side have instructed
us that those rules are going to remain
imperfect and we should just accept it
because that is the cost of doing busi-
ness.
In a somewhat similar fashion, the
polygraph is not infallible. We should
recognize this. It can be used, it has
been used. We have criticized the in-
telligence community when they have
not used it. It seems to me to be the
height of hyprocisy to require it in our
"ballpark" but not to allow it in the
private sector.
Mr. NEAL. Mr. Chairman, will the
gentleman yield?
Mr. LUNGREN. I yield to the gen-
tleman from North Carolina.
The CHAIRMAN. The time of the
gentleman from California [Mr. MTN-
GRIM] has again expired.
(On request of Mr. NEAL and by
unanimous consent Mr. LIINGRZN was
allowed to proceed for 2 additional
minutes.)
Mr. LUNGREN. I continue to yield
to the gentleman from North Caroli-
na.
Mr. NEAL. I thank the gentleman
for yielding.
Mr. Chairman, I recognize that the
gentleman from Florida and the gen-
tleman from California and others are
vitally interested in our national secu-
rity. What I do not understand is how
they would be willing to even begin to
trust such a fallible instrument. It is
not that these gadgets are accurate 95
percent of the time or 99 percent of
the time; the fact of the matter is that
they are no more accurate than the
flip of a coin.
Mr. LUNGREN. Reclaiming my
time, I would say to the gentleman I
have heard that cited. I will tell you
that is not the testimony you hear
from the intelligence community.
That is not the testimony you hear
from the people who have been part of
the CIA, the NSA and so forth, over
the last 25 years.
In fact, criticisms of those agencies
for security lapses have included criti-
cism that they did not use the lie de-
tector test when it should have been
used. And there has also been the
point that had it been used it is most
likely that the agencies would have
been able to stop certain people from
having the classes of information that
otherwise got into the hands of our
enemy.
Mr. NEAL Mr. Chairman, will the
gentleman yield again briefly?
Mr. LUNGREN. I yield to the gen-
tleman from North Carolina [Mr.
Neal].
Mr. NEAL. I thank the gentleman
for yielding.
Mr. Chairman, I would like to refer
the gentleman to some scientists, not
hearsay evidence but scientific evi-
dence. Here is a statement by Dr. John
Berry, associate dean, Georgetown
University School of Medicine. He
calls his paper "The Nonexistence of
the Lie Detector Test." He says he
wants to "make two important points
today." This was the testimony before
our Committee on Government Oper-
ations.
"'Two important points about the
polygraph: First, no such machine as a
lie detector exists. There is no physio-
logical response unique to lying.
"I have to point out that the other
point he makes is that a lot of people
believe that there is such a thing as a
"lie detector" test so you can scare
some people.
The CHAIRMAN. The time of the
gentleman from California has again
expired.
(By unanimous consent, Mr. Um-
GREN was allowed to proceed for 2 addi-
tional minutes.)
Mr. LUNGREN. I will continue to
yield to the gentleman from North
Carolina [Mr. NEAL].
Mr. NEAL. I thank the gentleman
for yielding.
The author of the paper went on to
say that lying is only one of several
stimuli which may excite a person:
other stimuli which cause excitement
are fear of losing one's job, embarrass-
ment or anger at being examined, for
example. He, in answer to his own
question, "Does it work at all?" says
this: "It is a simple coin. It will be
right 50 percent of the time in a di-
chotomous situation that is a lie-
nonlie." The point he makes is that so
called "lie detection" test are no more
accurate than the flip of a coin.
So I say to my distinguished col-
leagues, the point is we are relying on
something that is inherently unreli-
able and to use this even as a part of
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clearing someone for important na-
tional security considerations is dan-
gerous to our own security.
Mr. LUNG.REN. I appreciate the
gentleman's remarks. I might say if
you would go back,. say 10 years, ago to
the time when Mr.. Califarm was Secre-
tary of HMS, I can cite you* quetes.
from Mr. Califon?, when he said that
the CAT scanner was not an appropei-
ate diagnostic instrument and. that we
were wasting money on. it. Yet I know
people walking the streets today who
are alive because they used. the CAT
scanner as a diagnostic tool.
Mr. NEAL. The gentleman is. very
cleverly changing the subject. The
subject is poly,graphs -
Mr. LUNGREN. Now,, wait. a. second.
I would be glad to listen, to the gentle-
man on his time but, this. is on my
time.
The point is I can cite you medical
authorities who will tell you that
bypass surgery should not. have been
done in many cases 12 years ago.. In
fact, my father is one of those, a. board
certified internist. and cardiologist. He
changed his mind about their walks"
bility after he had. one. Thank God. be.
has been, able to. live for over a. decade
after having such, an oeeration.
I accept the gentlemaxes opinion as
his own, that doctor's. I will say this,
those in the intelligence community of
the United States, not skiing an opin-
ion off the top of their head but giving
an opinion based on their experience
over some approximately 40 years
have told us it is. an, essential tool to
protect the natioral security interests
of the United States. They use them
in the employment practice, the
preemployment practice techniques
and also investigations later on. I
would say that I would yield to their
ideas rather than to someone who is
giving us an opinion based on no prac-
tice..
The CHAIRMAN. The. time of the,
gentleman from, California has again
expired.
(On request of Mr. Neat and by
unanimous. consent,. Mr. Lotman, was
allowed to proceed for I additional
minute.).
Mr. NEAL. Mr. Chairman, will the
gentleman continue to yield?
Mr. LUNGREN. I yield to the gen-
tleraan from North. Carolina [Mr.
NEALL
Mr. NEAL. I thank the gentleman
once again for yielding.
Mr. Chairman. I would ask my dis-
tinguished colleague to bring to the
floor of the House of Representatives.
some evidence, some scientifdc evi-
dence, not hearsay, not my evidence,.
not my opinion,, not your opinion, but
bring us. some evidence that, these
gadgets are reliable. I certainly want
to keep an open mind on the subject. I
have ria.sed this- point throughout the
debate today and no one in opposition
to this bill has presented one what)*
of evidence that these things. are relit-
able.
Mr. LUNGREN. There is a differ-
ence between science and art but that
does not main that est is witchcraft.
We teak about the art. of mealionsm we
do mot talk about the :Menai of medi-
cine in terms of diagnosing Dearole.
We talk about the practice of meat.
eine; we- do. not talk about the perfect-
tient of medicine. Many of the tech-
niques. diavsostie as they are, that
doctors me today cannot be woven ab-
sohnely scientifically bat theY are
proven in term of practical effect. I
would suggest that the relaticenshiro
that the cattleman has presissted be-
tween the scientific and witchcraft is a
nen sequitur. In, fact. we are talking
about an art that. has been proven.
The etaAnnamk. Are there any
amendments to section. 6?
If net. the Clerk wilt designate sec-
tion. 6.
The text at section 6*as follows:
SRC a EXEMPTIONS.
Ca) Ns Arrtreirrrott ie Goyim's/arm Ste
prornam.?The provisions of this Act strait
not apply with respect to the United States
Government. a State or km/ government
or any politica* subdivieitor of a State or
local gmernment-
(b) NATIONAL DEFENEJL 4145 alINUILISIK Ea-
emerms.?(l) Nothing in this Act, shalt he
construed to prohibit the adininistration,, lit
the performance of any counterintelligence
function, or any lie detector test to?
(Al -any expert or consultant under con-
tract to the Department of Defense or any
employee of may contra:tar of sack depart-
ment; or
(Bi any expert or consultant under cam-
tact with the Department of Energy in con-
nection with the atomic energy defense ac-
tivities of such department or any employee
of any contractor of such department In
connection- with seek activities.
(2) Nothing in this Act shall be conistreed
to prohibit the adrainistrattion,, ist the per,
formic.- of any intelligence or counterin-
telligence function, of any lie detector test
to?
(A.)(i) any individual employed by,, or as-
signed or detailed to, the National. Security
Agency or the Central Intelligence Agency,
(ii) any' exert or consultant ander contract
to the National Security Agency or the Cen-
tral. Intelligence AgencY. Mb any employee
of a contractor of the National Security
Agency or the Central intebigence Agency,
or (iv) any individual apply- tag for a posi-
tion in the National Security Agency or the
Central Intelligence Agency:, or
(B) any individnal assigned to a space
where sensitive eryptelogie information is
produced, processed, or stored for the, Na-
tional Security Aigenc3r or the Central Intel-
ligence Agency.
(e) Exararnom row FBI Cemericrems.?
Nothing in this Act WW1 be construed to
prohibit the administration in. the perform-
ance of any counterintelligence finiction, of
any fie detector test to an employee of a
contractor of the Pederal Bureau. of Frivestf-
cation. of the Department of Antice who ifs
engaged int the performance of say wort
under the contrast with such Bureau.
amessanamor unmans IX UR. Tome. or
FLOalrith.
Mr. YOUNG of Florida. Mr. Chair-
man, I offer an amendment.
The Oink read as face=
Amendment offered by Mr; Yonne a
Florldsc Page 1.. eater Hee 13, linen_ the 1ml-
lowing new subsection:
119551
(d) Minim Homo Excearrion.?This Act
shall not plohibit the use of a he detector
teat by an employer on say employes or
prospective eraploYee e1 any =NMI hone
facility. This subsection shall not preempt.
or aupercede any State or local law which
prohibits or restrfcts the use of tie detector
tests.
Mr. YOUNG of Florida. Mr. Chair-
man, this amendinesa comes at an ap-
propriate place in the hilt. Section 6 is
entitled National Defense and Seoul-
ty Exemptions. In 1965,, when we had
the Armed Services authorisation bill
before the House,. the House of RePro-
sentatives approved by a vote of 333, to
71 an amendment offend by this
Member to establish a polygraph pro-
gram for those in the Defense Depart-
ment seeking classified clearances
That. 2-year test program. loarked so
well that ha IOW we offered the
amendment. to provide a pemaanent
program fee- the national Department
of Defense. That peomanent proinclit
was amerced by this Hiram MS to
ordy 44 against.
And as was discussed earlier today,
the House this. year voted 414 to zero
for an amendment to the State De-
pertinent authorisation to require
the use of polygraphs In. screening em-
bare' sennity Perieralla
SO. okationsiar the House of Rogue-
sestatices believes there in need for
the- me of potygraph.
I made this paha* earlier and want
to my it again briefly: If this bill be-
comes law the way it in preseiatly writ-
ten or if it is to, be amended several
times or no times, there is still going
to be theme of the polygraph because
the bill presented by- the gentleman
from Montana allows the use of poky-
graph by the Ifiaderai Government,.
State governments county govern-
ments, and kcal government* and on
litical subdivisions. thereof.
Ant for example beck harm ha Flori-
da where we used to have mosquito
problems, we used to hare what we
called mosquito contra/ boards. Now
under this bill you use the polygraph
when itOrneane applies for a job on the
mosquito control board to drive a
truck between the hours of midnight
and 4 o'clock in. the morning sprat/Mg
swampy areas and drainage ditches.
Under this bill you. could use the poly-
graph in that ease but you could not
use the polygraph to screen someone
who would deal with Annerfts'a elderly
became under this bill, you cannot use
the polygraph to screens an employee
who is seeking employment to serve,
America's elderly in nursing homes.
Fa fact., I thought when the bit/
came out that it might du that, be-
cause lent year In this debate, along
with a. number of either exemptions
that the chairman accepted, he accept-
ed my amendment to exempt norsing
homes front this- proiribtlion because
he felt?and I ant sure most of us in
the Chamber felt--that if anyone
needs our protection it is thee elderly
in numing km= who eannot take
care of themselves, who are bedridden,
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H 9552 CONGRESSIONAL RECORD ? HOUSE
who have no family, in many cases, to
look after them.
Mr. Chairman, I digress just a
moment here: Here are three volumes
of hearings conducted by Select Com-
mittee on Aging of the House of Rep-
resentatives dealing with abuse of the
elderly and to a great extent in nurs-
ing homes.
0 1310
These reports also deal with the
rights of America's institutionalized
aged lodged in confinement, and elder
abuse. Throughout these hearings we
are told how elderly people in nursing
homes have been abused and over-
drugged to keep them under control so
they did not make a lot of demands.
We hear of soiled bed clothes not
changed because someone did not
want to do it, and of theft from elderly
persons in the nursing homes.
One of the problems in nursing
homes is that people who work there
do not get paid enough money, and
many of them do not stay on the job
very long. They are very transient;
they come and they go, and it is very
difficult to keep track of their previ-
ous employment records.
So nursing homes and nursing home
managements have turned to another
tool. Little by little they are using the
polygraph to screen prospective em-
ployees, those who are going to deal
with the elderly, those who in the wee
hours of the night have access to that
patient strapped down to that bed,
those who in the wee hours of the
night have access to those people's be-
longings.
Mr. Chairman, we owe those in nurs-
ing homes the protection of this Con-
gress and of this law, and I say again
there is going to be the polygraph in
America whether the Williams bill
passes or not. The Williams bill pro-
vides for the polygraph in certain
cases. But it is at least necessary that
we accept this amendment to create
an exemption for nursing homes so
that those people who are serving
America's elderly might be checked
out before they do serious harm to one
of our elderly mothers or grandmoth-
ers or fathers or grandfathers.
Let us look after them. As I said, the
subcommittee chairman accepted this
amendment last year. I had hoped
that he would accept it again this
year.
Mr. MARTINEZ. Mr. Chairman, I
rise in opposition to the amendment,
and I will not take the full 5 minutes
allotted to me because I do not think
it is necessary.
It really offends me to think that
there are people who assume that
every pervert in the world wants to
work in this industry, and that all of
those people who are working out
there very diligently and conscien-
tiously should be polygraphed in order
to prove that they are conscientious
and diligent, and yet there are people
who are looking to work in these pro-
fessions because of their dedication to
aiding and helping the elderly and
children in daycare centers and other
places.
I hate to think that we have to
worry every time we send a child to
school or to preschool or anytime we
put one of our elderly parents or rela-
tives in a day care home. I hate to
think that we have to worry about all
the perverts that are working there
and all the perverts that want to apply
for jobs there. It goes back to what
one of my colleagues said. You are in-
nocent until you are proven guilty, but
this assumes you are guilty before you
are proven innocent. That is offensive.
I do not see that there is anything
wrong in requiring employers to do a
diligent job if investigating the back-
grounds of the individuals who are ap-
plying, looking at their credentials and
histories and seeing what they are and
who they are. I am sure that in the
multitude of people working out there
in those industries there is no reason
to be alarmed. I resent the inference
that all of those people need to be po-
lygraphed.
Mr. Chairman, I also resent the in-
ference that America is going to hell
in a hand basket if we do not allow the
polygraph to be used.
Mr. WILLIAMS. Mr. Chairman, I
move to strike the last word, and I rise
In opposition to the amendment.
Mr. Chairman, it is true that this
bill does not prevent the public sector,
that is, law enforcement officers, the
FBI, the National Security Council,
and all the rest, from using the poly-
graph. They use the lie detector under
very restrained and highly regulated
circumstances. This bill does not have
jurisdiction over that matter and does
not affect it.
But I remind my colleagues again
that our local police agencies, the FBI,
the National Security Council, the
CIA, and the other public agencies
througout the United States adminis-
ter only 2 percent of the lie detector
tests given in the United States. What
we are trying to do here is restrain the
vast bulk of the quick, easy, simple, in-
expensive, unreliable tests that are
given in the United States.
Yes, we accepted this amendment
the last time. We accepted it at almost
midnight after 6 or 7 hours of debate.
We felt that the Senate would not
take this bill with that amendment in
it or would strip that amendment. I
guess we were correct about the
former. The Senate did not take the
bill. It was a mistake on our part to
accept this amendment.
I ask my colleagues, have they read
the amendment? It says that any em-
ployee or prospective employee of a
nursing home facility has to undergo a
lie detector test. I wonder how many
people that is in the United States?
prospective employees of nursing
homes. It means that not only would
we be strapping in and plugging in the
doctors, the nurses, and the specialists
that work in nursing homes, but we
would also be giving the lie detector
November 4, 1987
test to the fellow that raises the flag
in the morning outside the nursing
home and takes it down at night. We
would also be strapping in the secre-
tary that works in the front office and
provides only indirect service to any of
those elderly citizens in the nursing
home. The groundskeeper who is out
there cutting the lawn and trying to
keep the place looking nice for those
senior citizens and the people visiting
them would have to undergo a lie de-
tector test under this amendment.
Do we want to keep our senior citi-
zens safe in the nursing homes in this
country? Absolutely. Of course we do.
And that may mean that we ought to
raise the minimum wage in America,
because, as the gentleman from Flori-
da has noted, one of the reasons, in his
opinion, that we get less then perhaps
excellent employees in nursing homes
Is because we do not pay them enough.
We will see how the gentleman and his
colleagues vote when the minimum
wage bill comes up perhaps next year.
Yes, we need good personnel prac-
tices, including good wages and good
benefits in the nursing homes. We
need a screening process. But we just
maintain that to make every employee
and every prospective employee of the
nursing homes in the United States
undergo this demeaning test is wrong.
Mr. BARTLETT. Mr. Chairman, will
the gentleman yield?
Mr. WILLIAMS. I yield to the gen-
telman from Texas.
Mr BARTLETT. Mr. Chairman, I
thank the gentleman for yielding.
Mr. Chairman, there will be a lot of
debate no doubt on this, but I do want
to be sure to clarify and give the gen-
tleman a chance to clarify his state-
ment as to what the amendment says.
I have a copy of it if the gentleman
has not been provided one.
The amendment does not provide
that every employee or any employee
of any nursing home will be subjected
to a polygraph test. The amendment
merely says that this act shall not pro-
hibit the use of the polygraph by an
employer of employees at a nursing
home. The amendment does not man-
date the employers to do any more or
any less than they are doing now.
It goes on to say that this subsection
is not going to preempt any State law
which in most States places rather
stringent standards and in most States
prohibits the use of the polygraph as
the sole determinant.
So when the gentleman told us that
this amendment provides that all em-
ployees of nursing homes will be re-
quired to take a polygraph test, I just
want to bring to the gentleman's at-
tention the fact that that is not true.
This amendment provides that this act
will not prohibit the use of the poly-
graph, but it does not require it for
anybody.
Mr. WILLIAMS. Mr. Chairman, re-
claiming my time, I appreciate the
gentleman's explanation. He is, of
course, correct. I did not mean to and I
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CONGRESSIONAL RECORD ? HOUSE H 9553
believe that I did not misrepresent the
amendment. This simply allows nurs-
ing home owners to polygraph any em-
ployee or any prospective employee,
from the groundskeeper to the flag
raiser.
Mr. LUNGREN. Mr. Chairman, I
move to strike the requisite number of
words, and I rise in support of the
amendment.
Mr. Chairman, a lot of times here we
talk in the ephemeral world. We talk
in legalities, and we do not talk about
what actually happens in the real
world. We forget, on the one hand,
that we have in the past, and State
legislatures have in the past, enacted
precisely legislation which does not
allow certain information to come out.
Yes, you can in some cases get con-
viction records if those conviction
records have not been sealed, but you
cannot get arrest records. And as
many of us know, in many situations
around the country, because of the
overcrowding of our court system, of-
tentimes a plea bargain will take place
to an offense that is a lesser offense or
to an offense that may be only tangen-
tially involved with the facts of the
crime committed.
So in some cases we may have some-
one whose actions gave rise to a crime
which would bring some cause to have
alarm about having that individual
taking care of the elderly. Yet there is
no way the employer can check on
that.
When the Subcommittee on Health
and Long-Term Care of the Select
Committee on Aging held hearings on
the rights of America's institutional-
ized aged, they heard testimony from
one of the representatives from Cali-
fornia, the executive director of the
Commission on California State Gov-
ernment Organization and Economy,
that has gone in and looked at the
level of care of the institutionalized el-
derly. He indicated that although
under California law the applicant,
that is, the person whose actual name
would be on the license for the com-
munity care facility is screened for
past criminal record, there is?and
these are his words?"no way of know-
ing whether his employees have a
criminal record. We received testimo-
ny on various cases in which employ-
ees with criminal records raped, beat,
and abandoned residents."
That is what we are talking about
here. We are not talking about the guy
who is raising the flag in the morning
and has no connection with the pa-
tients involved. We are talking about
prospective employees with criminal
records who would rape, beat, and
abandon residents. These are the el-
derly in our community care facilities.
That is pretty serious. That ought to
be something that we are concerned
about in this House. So when we talk
about this amendment, let us talk
about the practical. Let us talk about
an 80-year-old woman who is bedrid-
den, who is being treated in one of
these facilities, and who is at the
mercy of the employees there. And so
I ask, should we say to her after she
has been beaten or raped, "Well,
maybe if we had had a little bit better
information about that person, we
wouldn't have hired him. But, you
know, we had to make sure that
person didn't suffer the indignity of
having to take a lie detector test as
part of the entire screening; nonethe-
less we will make sure that that
person is not employed tomorrow to
rape or to beat you."
This is the real world. We are not
making these things up. This is from
the testimony of people who have
looked at what has happened in my
home State of California.
Mr. Chairman, I would suggest that
we ought to be concerned about that.
Mr. LAGOMARSINO. Mr. Chair-
man, will the gentleman yield?
Mr. LUNGREN. I yield to the gen-
tleman from California.
Mr. LAGOMARSINO. Mr. Chair-
man, I thank the gentleman for yield-
ing.
What the gentleman says is very ac-
curate and very true. It is something
we should consider very carefully. It is
not just a possibility.
Just yesterday, I believe it was, a
man pleaded guilty to killing 13
people, and they think there were
many more, in a hospital. This is a not
unsimilar situation.
Mr. Chairman, this is something we
do owe to our people. Why should we
say that the secrets of the Defense De-
partment are more sacred than the
lives and well-being of our elderly citi-
zens?
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield?
Mr. LUNGREN. I am happy to yield
to the author of this amendment.
Mr. YOUNG of Florida. Mr. Chair-
man, I thank the gentleman from Cali-
fornia for his contribution. He has
made some very, very strong and per-
suasive points here. In support of that,
let me just hold up these relatively im-
portant copies of newspaper stories
telling how previous employers are not
responding to requests for information
about employees that might have
worked for them because if they give a
bad recommendation, they are getting
sued. In some cases they are getting
sued if they give a good reconunenda-
tion.
They are just buttoning up in many
cases, and it is getting more difficult
all the time to learn something about
an applicant from a previous employ-
er.
Mr. LUNGREN. Mr. Chairman, I
thank the gentleman for offering his
amendment, and I hope we will have a
unanimous vote in favor of this
amendment.
Mr. DARDEN. Mr. Chairman, I
move to strike the requisite number of
words.
Mr. Chairman, I rise in strong sup-
port of the amendment offered by the
gentleman from Florida [Mr. Youucl,
and I want to commend him for realiz-
ing that here we have a very obvious
flaw in the Williams bill that must be
addressed and that I think certainly is
addressed by this amendment.
I think it is interesting to note, Mr.
Chairman, that if this House of Repre-
sentatives has gone on record for any
one thing or any one subject or any
one topic, it has been taking action to
better the lot and the lives of our el-
derly people in this country. I think to
take away, as this bill would do, the
right to see that those persons who
care for and administer care to our el-
derly are not properly investigated
would indeed be setting a bad, bad
precedent here on the floor of the
House of Representatives.
0 1325
Further example of how unfair the
situation has become, Mr. Chairman,
under the bill as it now stands, a
person who is charged, a young person
who is charged with stealing $3.50
worth of candy from a store can be po-
lygraphed by the police; but at the
same time a person who may have a
serious record of convictions, and the
amount of convictions may not have
been divulged, cannot be polygraphed
by the owners of a nursing home.
It is important to note that, let us
not take away this valuable investiga-
tive tool which should be used in con-
junction with, not solely for the pur-
pose of determining suitability for a
particular job, but in conjunction with
all other evidence to screen out these
people who might not be employable.
I was gratified last year when the
committee accepted this amendment,
but now it appears to be an opposite
situation here today.
Mr. MARTINEZ. Mr. Chairman, will
the gentleman yield?
Mr. DARDEN. I yield to the gentle-
man from California.
Mr. MARTINEZ. Mr. Chairman, I
thank the gentleman for yielding to
me.
I want to refer to the point the gen-
tleman makes on the validity of a lie-
detector test, because it is given by a
police department and not used in evi-
dence.
A court of law does not recognize it,
because the polygraph is recognized as
invalid. They cannot use it in evidence.
If the police are using it, they are
using it as a supplement, and that re-
quires them to dig up the hard evi-
dence, and more than just that poly-
graph test.
I think the argument is the kind of
an argument that confuses us into
giving credibility to the use of a lie de-
tector test in the private workplace.
Mr. DARDEN. The police can, under
this bill, continue to use a polygraph
unfettered as they have in many years
throughout this country.
What it does prohibit as it stands
now is the right of a person who may
go to work in a nursing home to care
for our elderly, they cannot have that
type of background check.
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Mr. LIJNGREN. Mr. Chairman, will
the gentleman yield?
Mr. DARDEN. I yield to the gentle-
man from California.
Mr. LIMGREN. Mr. Chairman, I
thank the gentlemarrfor
The police departments use the lie
detector testa in precisely the same
way we are asking under this amend-
ment that employers, in taking care of
the elderly, use it; that is, in employ-
ment situations.
That Is where the police use it today,
and the Supreme Court has said that
they can use it. They ican use it for
employs:treat circumstances.
We are not talking about using it for
criminal circurastances here. We are
talking about using it for employment
circumstances.
Mr. DARDEN. Mr. Chairman. I
thank the gentleman for making that
point.
We are contending that the poly-
graph ought to be used in evidence,
even though it might be permitted to
be used in evidence by _stipulation in
some States.
We are malting the point that once
more the polygraph should be used as
the same Investigative tool by owners
of nursing 'homes, just as police offi-
cers can use it.
It is a valuable investigative tool
which should not be taken away from
the possible benefit to the elderly.
Mr. WILLIAMS. Mr. Chairman, will
the gentleman yield?
Mr. DARDEN. I yield to the gentle-
man from Montana.
Mr. WILLIAMS. Mr. Charman, I
thank the gentleman for yielding.
Who ought to investigate crime?
This bill says if the pollee departments
want to investigate crime and want to
use the He detector to investigate
crime, let them do it; but What some of
the Members on the floor seem to
want is to allow private industry to
become police departments, and not
only that, but they want to allow pri-
vate industry to use the gadget in a
way we do not allow law enforcement
to use it; and that is, for preemploy-
ment, for -people who never committed
a crime.
The Members would allow the
owners of nursing homes to require a
secretary seeking a job in a nursing
home to be sat down, strapped In and
plugged in. We do not let the law-en-
forcement agencies in this country do
that. That Is a far broader situation
that the gentleman wants to create.
Mr. WALKER. Mr. Chairman. I
move to strike the requisite number of
words.
I rise in support of the amendment,
and I would say to the gentleman from
Montana that what the gentleman
just said is wrong wfth regard to what
we do in this body.
Just a few moments ago the staff
checked with the Capitol Police, and
guess what. For the 'protection of ear-
selves around here, we allow the Cap-
itol Police to have two fullitime exam-
iners who do nothing but screen all ap-
plicants for the Capitol Police Force,
to check the info that is on their ap-
plications, not for Investigative work
of criminals.
We allow our Capitol Police to
screen all their -applicants about the
Information that is on their applica-
tions.
Mr. 'WILLIAMS. Mr. Chairman, will
the gentleman yield?
Mr. WALKER. I yield to the gentle-
man from Montana.
Mr. WILLIAMS. MT. Chairman, I
thank the gentleman for yielding.
'My question is, do we allow the Cain-
nal Police, or any other police depart-
ment, to use the lie detector test to
screen prospective employees of nurs-
ing homes or banks or anywhere else?
That is what this amendment allows,
nursing homes, so I was not wrong.
Mr. WALKER. No, we are allowing
the Capitol Police Force, in terms of
the people that apply to work at the
Capitol Police Force,, to use lie detec-
tor tests to screen those applicants, ex-
actly what the gentleman from Flori-
da wants to do in terms of nursing
homes, screening their own applicants.
It is exactly the same.
What we now have is a standard
which says that to protect ourselves,
'we will have one :standard. To protect
The elderly of Americas we will have
another standard.
That is an abomination. Once again,
we have legislation an the floor that
says we are somehow above the law,
that this particular body of men and
women is better than the law, that
what we are going to take away from
private Industry, we are not willing to
take away from ourselves, because
there is nothing in this Mil that takes
away from our ability to use lie detec-
tors to screen the people that protect
us.
I cannot understand it. Why is it day
after day, week after week we are
bringing bills to the floor that say we
are better than the rest of the Ameri-
can people?
I would think it would get to be an
embarrassment after a while. To find
out the gentleman from Florida wants
to protect the elderly of America, and
we say no, you cannot do that. When
it comes to protecting ourselves, we
are going to have the best equipment
in our arsenal to do so.
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield?
Mr. WALKER. I yield to the gentle-
man from Florida.
Mr. YOUNG of Florida. Mr. Chair-
man, I thank the gentleman for yteld-
ing to me.
I want to make sure J understand
the gentleman's point. If it is proper
to use a polygraph examination to
screen those who protect Members of
The U.S. Congress, then it should be
proper to use that same process, that
same tmote gadget unquote to protect
elderly people tying in nursing homes
who cannot take care of themselves
nearly as well as we can here in Con-
gress. Is that what the gentleman is
saying?
Mr. WALKER. I would say to the
gentleman, I think It is probably more
Important to have that particular abil-
ity rather than for ourselves.
Maybe those people who are lying
helpless in nursing homes deserve
more protection than what we deserve
in the U.S. Congress, and so the gen-
tleman is absolutely correct, and that
is the point I am making.
If the technique is good enough, If it
Is good enough for elderly Americans,
It is good enough for employers all the
way across this country.
I find it very, very disturbing that
day after day, week atter week we are
saying we are somehow better than
the rest of America.
Mr. WILLIAMS. Mr. Chairman, will
the gentleman yield?
Mr. WALKER. I yield to the gentle-
man from Montana.
Mr. WILLIAMS. Mr. Chairman, I
thank the gentleman for yielding to
me.
Does the gentleman know in this
matter of the House being duplicitous
here on Capitol Hill, does the gentle-
man know whether or not the Capitol
Police give He detector tests to that
fellow that raises the flag and to those
secretaries that work in the office of
the gentleinan from Pennsylvania, be-
cause this amendment allows nursing
home owners, not public officials, to
give the lie detector test to people ap-
plying for a job to cut lawn outside
the nursing hone? -
Mr. WALKER. The gentlemen's bill
exempts all government employees, so
it is my understanding, and in the
same way that the gentleman's
amendment Allows the nursing home
operators to behave, we are allowed to
behave ourselves.
U we wanted to test the people who
raised the flag in the morning, we
could under the gentleman's bill; but
tinder the gentleman's bill, the nurs-
ing home operator does not have that
-option.
The gentleman from Florida is
saying that your bill ought to give the
nursing homes that option.
Mr. BARTLETT. Mr. Chairman, will
the gentleman yield?
Mr. WALKER. I yield to the gentle-
man from Texas.
Mr. BARTLETT. Mr. Chairman, I
thank the gentleman for yielding to
tae.
We need to get hack to what the bill
says, and I propound the question to
the sponsor of the bill, or any of the
sponsors including the gentleman
from Montana.
The CHAIRMAN. The time of the
gentleman from Pennsylvania (Mr.
Watareel has expired.
tOn request of Mr. BARTLVTT, and by
'unanimous consent, Mr. WALKER was
allowed to proceed for 3 additional
ntimites.)
The CHAIRMAN. The Chair will
offer the explanation that in accord-
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November 4, 1987 CONGRESSIONAL RECORD ? HOUSE 11 9555
ance with the precedents, the Chair
will recognize members of the commit-
tee, first priority, and then those non-
members in accordance with seniority.
I thought that explanation would be
in order to understand the recognition
by the Chair of diverse Members who
have sought recognition.
Mr. WALKER. We thank the Chair.
Mr. Chairman, I yield further to the
gentleman from Texas [Mr. BART-
LETT].
Mr. BARTLETT. Mr. Chairman, I
thank the gentleman for yielding to
me.
I would propound the question to
the sponsors of the legislation.
Would they then accept an amend-
ment to permit nursing-home opera-
tors to use the polygraph as one deter-
minant in hiring those employees that
deal directly with the elderly in a way
in which it is an occupation?
If that is an amendment that is ac-
ceptable, then perhaps the sponsor of
the bill should accept the amendment
with that change in it, and we could go
on to the next amendment.
Mr. WILLIAMS. Mr. Chairman, will
the gentleman yield?
Mr. WALKER. Mr. Chairman, I
would be glad to yield to the gentle-
man from Montana to see if the gen-
tleman wants to have that reasonable
amendment added to the bill.
Mr. WILLIAMS. Mr. Chairman, I
thank the gentleman for yielding to
me.
The sponsor of the bill believes that
one cannot cure baldness through the
application of electricity, just as one
believes that a box plugged into a wall
cannot determine through the applica-
tion of electricity whether the person
Is telling a truth or a lie.
The sponsor of the bill is opposed to
the use of the lie detector gadget.
Mr. WALKER. Let me say to the
sponsor of the bill, what the gentle-
man is saying is, it is perfectly all right
when it comes to protecting the gen-
tleman, when the Capitol Police use it
to protect him, and the gentleman's
bill in now way says we are going to
take that power away from the Cap-
itol Police when it comes to protecting
the gentleman?
Mr. BARTLETT. Mr. Chairman, will
the gentleman yield?
Mr. WALKER. I yield to the gentle-
man from Texas.
Mr. BARTLETT. Mr. Chairman, I
thank the gentleman for yielding.
I further inquire as to whether or
not the sponsor would accept an
amendment to unexempt Congress
from this bill.
Mr. WILLIAMS. Mr. Chairman, if
the gentleman will continue to yield,
the sponsor of this bill will cosign a
bill introduced by the gentleman from
Texas to take away from the Capitol
Police the use of the lie detector
gadget.
Will the gentleman offer that?
Mr. BARTLETT. It would not be a
bill; it would be an amendment to this
bill.
Mr. WILLIAMS. My bill would have
jurisdiction over this. If the gentleman
can offer this amendmennt to strip
the use of the lie detector from the
Capitol Police, his gentleman will sup-
port it; and I will tell the gentleman
why.
Spies and terrorists, people intent on
doing the Members any bodily harm
can go through a lie detector like
water through a sieve.
If we are depending on the lie detec-
tor to protect ourselves, we are in a lot
of trouble.
Mr. BARTLETT. Mr. Chairman, if
the gentleman will continue to yield,
the sponsor of the bill is being
straightforward and honest then.
The gentleman wants to prohibit
polygraphs in all cases. The House will
consider an amendment to remove the
congressional exemption from this
bill.
Mr. WALKER. Mr. Chairman, re-
claiming my time, we also do lie detec-
tor tests of the people who work on
our intelligence committees, for exam-
ple.
It goes much furtherS than that
when we are relying on protecting the
intelligence of this country, using the
employees of this body, and we use lie
detectors there too.
The gentleman thinks they are some
sort of a witchcraft, but we do depend
upon them.
The CHAIRMAN. The time of the
gentleman from Pennsylvania [Mr.
WALKER] has again expired.
(On request of Mr. Youxo of Florida,
and by unanimous consent, Mr.
WALKER was allowed to proceed for 3
additional minutes.)
Mr. KASICH. Mr. Chairman, will
the gentleman yield?
Mr. WALKER I yield to the gentle-
man from Ohio.
Mr. KASICH. Mr. Chairman, I
thank the gentleman for yielding to
me.
The Stillwell Commission, the group
that studied the problems with securi-
ty leaks throughout this country,
pointed out the problem with poly-
graphs is not the fact that people can
avoid them.
The problem is that they are not ad-
ministered in a way that does not tip
somebody off as to when those tests
are going to be administered; and in
fact, if you study the whole Walker
situation, the senior Walker told his
son, "Don't get yourself in a position
where you are ever going to be poly-
graphed, because that is how you are
going to get discovered."
Using a polygraph in national securi-
ty is a very valuable tool in terms of
trying to prevent this kind of thing
from happening. They are recom-
mending more use of the polygraph,
not less, when it comes to national se-
curity.
That point ought not to be missed
when we are looking at something as
sensitive as this.
0 1340
Mr. WALKER. Mr. Chairman, I
thank the gentleman.
Let me yield to the gentleman from
Florida.
Mr. YOUNG of Florida. Mr. Chair-
man, I thank the gentleman for yield-
ing.
An important point has been raised
relative to who believes the polygraph
works or does not work.
This latest conversation prompts me
to read this statement from Christo-
pher Boyce. Christopher Boyce ap-
pearing before the Senate Committee
on Governmental Affairs made this
statement. Christopher Boyce is very
infamous in that while he worked for
one of our defense contactors, he sold
out to the KGB and provided them
with some very strategic information
that harmed us considerably.
Christopher Boyce said that the
KGB officer who was his charge told
him that they had ways to beat the
polygraph. Christopher Boyce said to
the Senate:
I knew I could not pass the polygraph and
greatly feared it. That same fear heightened
my resolve never to accept direct employ-
ment with the CIA because they require a
polygraph.
Now, Christopher Boyce, I think,
should be paid attention to because he
has cost us a lot of money and he has
given the Soviets some very important
strategic information that belonged to
us, that we developed. Unfortunately
we are getting away from the amend-
ment at hand. The subject before us
now is are we going to give elderly
people in nursing homes the protec-
tion of having an opportunity to
screen prospective employees who are
going to be tending them in the wee
hours. That is the issue. Are we going
to do that or not?
Unfortunately we have allowed the
debate to move in the wrong direction.
The proponents of this bill are trying
to create the illusion that we are going
to polygraph, that we want to poly-
graph everyone who applies for a job
anywhere in the world. That is not the
case, not the case at all.
First of all, to conduct a polygraph
examination takes time.
No. 2, it is extremely costly and if
you think that all these industries just
want to indiscriminately use poly-
graphs, you are wrong, but it is a very
good tool and the existence of the pro-
gram itself will be very helpful.
But let us not allow this debate to
move off in 20 directions. This debate,
this moment, is whether or not we are
going to give protection to the elderly
people in America's nursing homes.
I thank the gentleman for yielding.
The CHAIRMAN. The time of the
gentleman from Pennsylvania has
again expired.
(By unanimous consent, Mr. WALKER
was allowed to proceed for 2 additional
minutes.)
Mr. WALKER. Mr. Chairman, let
me say to the gentleman, and I will
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H 9556 CONGRESSIONAL RECORD ? HOUSE November 4, 1987
yield to the gentleman in a moment,
but let me sag to the gentleman that I
think it is important that we refocus
the debate on his amendntent
What this gentleman is saying is we
ought to do unto others, namely, the
elderly. what we willingly do unto our-
selves, namely, we allow our Capitol
Police to acbniaister lie detector tests
when it comes to protecting us. They
do it on the basis of job :applications.
That is the same standard of protec-
tion that we ought to allow to the el-
derly of this country.
Mr. NEAL. Mr. Chairman, will the
gentleman yield?
Mr. WALKER. I am very glad to
yield to the gentleman from North
Carolina.
Mr. NEAL. Mr. Chairman, I thank
the gentleman for yielding.
I agree with the gentleman that we
ought to be an this subject, but the
gentleman from Florida made a very
Important ,point. The gentleman from
Florida said that the spy that he
quoted was afraid of the polygraph.
That is precisely the point..
The point is that the polygraph testa
do not work. They are not He detector
testa. They are unreliable, no more ac-
curate than the flip of a coin, but
there are people who are afraid of
them. There are some people out
there who believe that they work and
in those cases when there are people
who believe that they work, the threat
of a polygraph can elicit a desired re-
sponse; but as more and more people
learn that they do not wort, they will
be become less and less effective.
This is the most important point,
since they are unreliable and many
people do It, the most dangerous
people, the people who would be most
dangerous to our national security or
to our elderly or to us here, the terror-
ists and so on, know how to beat them.
There are mental techniques, drugs,
and other ways to beat the polygraph.
Mr. DELAY. Mr. Chairman, will the
gentleman yield?
Mr. WALKER. Let me regain my
time and yield to the gentleman from
Texas.
Mr. DELAY. Mr. Chairman, I think
that the gentleman from North Caro-
lina has established his entire support
for this bill on the fallibility of the
polygraph system. The gentleman
cited a few studies and challenged us
to come up with Studies of our own.
The CHAIRMAN. The time of the
gentleman from Pennsylvania has
again expired.
(At the request of Mr. DELT, and
by unanimous consent, Mr. WALKER
was allowed to proceed for 2 additional
minutes.)
Mr. WALKER. I yield to the gentle-
man from 'Texas.
Mr. DELAY Mr. Chairman, I would
ask the gentleman after my statement
if he will change his support for the
bill if we can cite to the gentleman Ittl-
merous studies that show the accuracy
of the polygraph.
In 1984, the Department of Defense
called for a Study to be done of The
number of Studies in the United States
that have been done on the accuracy
of the polygraph. I would just like to
cite a few of them.
From Dr. Berland, University of
Utah, 89.7 percent accurate.
Mr. Philip Bergh, Temple University,
92.4 percent scourge.
Mr. Richard Blum, Stanford Univer-
sity, 96.2 percent accurate.
Dr. Frank Horvarth, 87.6 percent ac-
curate.
Dr. David Raskin, 96 percent accu-
rate, and I could go on and on. I have
got the book coming over. It is about
that thick of all the studies that have
been done that show that it is as accu-
rate as most drug testing or any other
tools That are being used in employ-
ment; so I can show the gentleman
that there are as many, if not more
studies, that show at least 35 percent
accuracy of the polygraph.
I will ask the gentleman, will he now
change his support for the bill, be-
cause I have as many, if not more,
than the gentleman has on the accura-
cy of the polygraph.
Mr. NEAL. Mr. Chairman, will the
gentleman yield to me to respond?
Mr. WALKER. I am happy to yield
to the gentleman from North Caroli-
na.
Mr. NEAL. Mr. Chairman, I would
refer the gentleman to the distin-
guished Republican Member from
Utah who is a former professor of sta-
tistics. I think he will point out to the
gentleman if we can get him involved
in this debate that at those levels of
accuracy, and I am not a statistician
and I cannot make his argument for
him, but I wish the gentleman was
here to make it, because I think he
could demonstrate that at these levels,
and this comes as news to me, frankly,
because the studies I have seen indi-
cate that they are much less reliable
than the gentleman indicates, but
even at these levels the gentleman is
talking about, the level of inaccuracy
would be one that would be a very
dangerous one for us to trust, so I
hope that when the gentleman from
Utah returns we can get. involved in
this.
Mr. DELAY. Mr. Chairman, will the
gentleman yield?
Mr. WALKER. I am happy to yield
to the gentleman from Texas.
Mr. DELAY. Mr. Chairman, I am
looking for the gentleman from Utah,
the statistician, because three of the
studies were done by the University of
Utah.
Mr. CHAIRMAN. The time of the
gentleman from Pennsylvania has
once again expired.
By unanimous consent. Mr. Waraire
was allowed to proceed for an addi-
tional 10 seconds.)
Mr. WALKER. Mr. Chairman, I do
so just to bring the subject matter
back, protect the elderly the same as
we protect ourselves. Vote for the
amendment of the gentleman from
Florida.
Mr. JEFFORDS. Mr. Chairman, I
move to strike the requisite number of
words.
(Mr. JEFIMRDS asked and was
given permission to revise and extend
his remarks.)
Mr. JEFFORDS. Mr. Chairman, the
key question here is whether or not
passing this amendment will do any-
thing to protect the elderly. That is
the question.
Related to that is the question of
the validity of preemployment testing.
Now, the gentleman from Texas
mentioned some studies, and if my
memory serves me correctly these
studies were done by the polygraphers
about themselves, or related to studies
of polygraphers, or at least did not
deal with preemployment testing.
Mr. DELAY. Mr. Chairman, will the
gentleman yield?
Mr. JEFFORDS. I will yield to ask
the gentleman this question. Did they
deal with preemployment testing?
Mr. [LAY. Yes, the studies dealt
with preemployment testing and these
were not conducted by polygraphers.
These tests mem performed by profes-
sors in universities that made studies
commission by private organizations
and compiled by the Department of
Defense in 1984. These individuals are
not polygraphers.
Mr. JEFFORDS. Well, I would just
point to the OTA, the Office of Tech-
nology Assessment of the Congress,
which did a study of the studies, and
those were not commented en there,
and found that there is no study, to
their knowledge at that time, that
showed any validity to preemployment
testing. That is the issue here, because
we are weighing issues here dealing
with the private sector which we do
not have with the Oovernment sector.
Now, as to government use of The po-
lygraphers I will recite some informa-
tion that came to me this morning by
virtue of my being on C-SPAN. I was
talking with a polygrapher who did
some preemployment testing for a
police department. I will get to that
matter in a minute.
The question here is an interest-
weighing matter. The important point
here is the polygraph test is not reli-
able. Let us take a look at what the
courts have said about this and how
long they have said it. The first case in
the U.S. Supreme Court case dealing
with polygraphs was in 1923. This
Issue and discussion on tt has been in
existence for probably 70 years. Yet
still the courts will not allow this test
to come into evidence. This should be
distinguished from drag testing and all
those kind of things which are allowed
in evidence sin courts under certain cir-
cumstances. Let us not be confused by
these analogies.
Also, it should be pointed out that
this partici:the amendment is opposed
by the American Medical Association.
the American Psychologists Associa-
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November 4, 1987
CONGRESSIONAL RECORD ? HOUSE H 9557
tion and the American Nurses Associa-
tion. These tests administered here
under these circumstances are humi-
liating. They are an invasion of priva-
cy with the questions that are asked.
They have no known validity in the
preemployment testing situation, the
private sector interests should be dis-
tinguished from the military and
others who come forward and are
placed in a position of national securi-
ty. They are considered to have waived
some of those rights. Certainly that
would be true with respect to police of-
ficers dealing with us here in applying
for positions which involve that kind
of rigorous testing required for such
tests and responsibilities. This is not
true when you talk about people de-
serving and work for nursing homes,
et cetera in the private sector.
Let me relate to you the experience
I had this morning to show you how
these polygraphs are used or rather
misused. On C-SPAN this morning,
naturally I was challenged by poly-
graphers. One was the police depart-
ment examiner in one of the Virginia
areas. He called and said, "It is very
reliable. We had a hundred applica-
tions for four positions in the police
department. I examined them and in
96 cases I could tell they were drug ad-
dicts, criminals or sexual abusers.
Therefore, we were able to hire the
only four that came forward that I
could tell were really honest and
would make police officers, and they
have."
Now, can you believe that that
would occur? He must have been sit-
ting outside of the State prison exam-
ining people coming out the door and
looking for jobs. That is the kind of ri-
diculous response you get from some
polygraph operators.
I point that out because what we are
basically concerned with here is the
protection of people, yes; but it is pro-
tection also of those who want to be
there to try to protect people.
Since the polygraph has no demon-
strated reliability in this kind of situa-
tion, what we are trying to say here, at
least in the preemployment situation,
Is that we should not subject people to
such intimidating and unreliable tests.
thus eliminating people from being
able to work by virture of a test which
absolutely has no known validity in
the preemployroent situation.
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield?
Mr. JEFFORDS. I am happy to yield
to the gentleman from Florida.
Mr. YOUNG of Florida. Mr. Chair-
man, I thank the gentleman for yield-
ing.
Since we got away from the elderly
nursing home amendment once again
and we are back on the bill, let me tell
you why the gentleman from Georgia
[Mr. DARDZN3 and myself have sug-
gested this substitute, because we put
In there a Hill of Rights for that
person who might be examined by a
polygrapher. A substitute saw
A polygrapher may not ask a question
during the actual examination unless such
question is in writing and has been reviewed
with the examinee prior to such examina-
tion.
That takes care of the problem the
gentleman from Indiana [Mr.. Viscto-
sicy3 mentioned earlier in the debate
when they could not pronounce the
name of his high schooL
A polygraph examiner may not inquire
Into (a) religious beliefs or affiliations;
racial beliefs or opiniorm political beliefs or
affiliations; sexual preferences or activities,
beliefs affiliations or opinions regarding
unions or labor organizations. Each prospec-
tive examinee shall be required to sign a
notice before the beginning of each poly-
graph examination that he understands the
limitations imposed on the examiner; that
the examinee may terminate the examina-
tion at any time; that the examinee has
legal rights and remedies if the polygraph
examination is not conducted in accordance
with this title.
And it goes on.
The CHAIRMAN. The time of the
gentleman from Vermont has expired.
(At the request of Mr. You= of
Florida, and by unanimous consent,
Mr. JEFFORDS was allowed to proceed
for 1 additional minute.)
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield further?
Mr. JEFFORDS. I yield to the gen-
tleman from Florida.
Mr. YOUNG of Florida. Let me add
this further point. This is a bill of
rights to protect the person who will
be examined by a polygrapher.
Now, under the Williams bill, there
Is no such guarantee. There is no bill
of rights for the examinee in the bill
before us.
This substitute is the only legisla-
tion pending today that protects the
rights of the examinee. That is why
we should adopt this substitute later
on to do just that. There are going to
be polygraph examinations whether
the Williams bill passes or not; so at
leaSt let us make them professional
and provide a bill of rights for the ex-
aminee now Mr. Chairman, but at this
point let us get back to the issue at
hand, which is protection of the elder-
ly in nursing homes, because that is
the issue before us right now.
TheCHAIRMAN. The time of the
gentleman from Vermont has again
expired.
(By unanimous consent, Mr. Jar-
FORDS was allowed to proceed for 2 ad-
ditional minutes.)
Mr. JEFFORDS. Well, it is ture, Mr.
Chairman, that under the Williams
bill there would be no Bill of Rights
because there would be no examina-
tion. You do not need a bill of rights
to protect you from something which
Is prohibited.
Now, if the gentleman is saying that
it would expand to other areas that
may be allowed, that may be ture and
I would certainly have no quarrel with
that aspect of it. But here we are in-
volved here with the question of valid-
ity and nothing you can do is going to
make something that has been shown
not to be valid enough to be consid-
ered in evidence for 70 years to be sud-
denly valid now. I am sure that ques-
tions not have been asked, have been
changed and reordered by polygraph
examiners over the years to try and
get admissible results. Yet they still
cannot get results which are reliable
enough to let the courts admit them
into evidence.
So I would say right now the ques-
tion is whether or not these tests are
valid the evidence is very clear that
they are not valid. potentional em-
ployees should not be subjected to
such humiliating tests and questions
in preemployment situations.
0 1355
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield?
Mr. JEFFORDS. I yield to the gen-
tleman from Florida.
Mr. YOUNG of Florida. Mr. Chair-
man, I am sure the gentleman from
Vermont did not do this intentionally,
but he misspoke. Under the Williams
bill millions of Americans can be poly-
graphed. Those who work for the U.S.
Government, those who work for the
governments of all the 50 States, those
who work for the governments of the
thousands of counties and the thou-
sands and thousands of cites can all be
polygraphed.
Mr. JEFFORDS. Reclaiming my
time. I will admit that the gentleman
Is correct and add that is true for some
employees of the defense industry.
Mr. YOUNG of Florida. All of those
people are subject to polygraph by the
Williams bill. I do not think the gen-
tleman intended to misspeak, but un-
fortunately he did.
Mr. JEFFORDS. Mr. Chairman, I
would say that the gentleman is cor-
rect in that. Of course those situations
other than the Federal Government
are not under our jurisdiction, other-
wise we may have given consideration
to covering them. However, that does
not diminish my arguments relative to
the non validity of the tests.
Mr. MARTINEZ. Mr. Chairman, will
the gentleman yield?
Mr. JEFFORDS. Mr. Chairman, I
yield to the gentleman from Califor-
nia.
Mr. MARTINEZ. Mr. Chairman, the
point is they are susceptible to being
polygraphed and are not part of the
Federal Government The point is
there are tens of thousands of those
who have no business being poly-
graphed because they have not done
anything wrong to begin with, who are
going to be polygraphed if this bill
does not past
Mr. JEFFORDS. I agree with the
gentleman. We are here to protect the
private sector, also, as well as deal
with Government agencies.
Mr. Chairman, I again urge my col-
leagues that this amendment be de-
feated.
Mr. McCOLLUM. Mr. Chairman, I
move to strike the last word.
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CONGRESSIONAL RECORD ? HOUSE November 4, 1987
Mr. Chairman, I think this debate is
down to the point now where we ought
to be talking about what is reasonable.
Everything we do in this Congress, it
seems to me, is all part of our checks
and balances, that old balance wheel
that we have talked about in many of
these debates comes into play here, it
seems to me.
What are the inherent evils of the
polygraph test? I do not think there
are inherent evils. If the polygraph is
given to somebody, there may be har-
assment, there is potential for abuse
of it in the preemployment practice,
no doubt about it, but in the sense
that it is inherently evil that some-
body will suffer physical ailment or
somebody is going to die from it or
somebody is going to be irreparably in-
jured by it, that is highly improbable
that that would occur. On balance, the
question is under what circumstances,
if any, will the polygraph examination
be given in the employment scenario?
It seems to me that when one weighs
the limited amount of evil, if that is
what it is to be called, or problems for
somebody seeking employment in a
nursing home, the harassment and po-
tential abuse that might be there
weighed against the harm that could
occur to the elderly if we denied the
owners and operators of nursing
homes the opportunity to preemploy-
ment screen with a polygraph, I think
that we have to come down firmly on
the side of the elderly in allowing the
employment screening to take place.
The fact of the matter is that there
will always be debate over the techni-
cal validity of the polygraph, whether
It is 85, 90, 72 percent accurate. Let me
say to my colleagues, drug tests are
not all accurate. We had a great
debate over the AIDS test, and a lot of
people still say, people in the medical
profession, say the AIDS test does not
screen out all the necessary things to
make certain determinations.
The point is that the polygraph test,
by the evidence I have seen, and I
have seen a lot of it as my colleagues
have also seen it, is extremely valid for
the purposes of preemployment
screening if an employer uses other
things besides simply the polygraph,
which we would be required I am sure
under any form of this legislation, the
substitute or this one, the tests that
the gentleman from Florida (Mr.
YOUNG) has proposed in his substitute
would seem eminently fair. These
would provide the degree of safe-
guards necessary to let the polygraph
be used for the protection of the elder-
ly.
I had a grandmother in a nursing
home, some of my colleagues have had
their parents or grandparents in a
nursing home. I think most of the
nursing homes of this country are to
be respected. There has been a great
improvement over the last few years in
the quality of care and inspections,
but elderly people in nursing homes
themselves are often not capable of
understanding certain things, or pro-
tecting themselves. They are among
the most vulnerable citizens of this
country. They are people that I am
sure every Member of this body wants
to be sure their interests are protect-
ed. The fact is they can have valuable
possessions in their rooms that could
be easily stolen. As the debate brought
out earlier, in a nursing home, an el-
derly citizen can be attacked by the
wrong person working there. We have
had documented cases of rape and of
physical abuse to the elderly in nurs-
ing homes by people who have no busi-
ness being employees of those nursing
homes. The polygraph itself is not
going to be a guarantee to get rid of
all those people but it seems to me on
balance, and I think that is what we
have to do here as a body, if we are
weighing the good and the evil of the
use of the polygraph, in this case the
good, the need for the polygraph in
the nursing home setting to protect
the elderly far outweighs any harm
that could possibly occur in the em-
ployment area to somebody who might
want to work in a nursing home.
There are a lot of other places, if
somebody is worried about getting a
job and being rejected, where they can
go to work where they will not worry,
and we will not worry, about what
kind of threat they will be to the el-
derly, to the health and safety of the
elderly and to their possessions.
It is just not responsible for this
body to allow a bill like this to go
through that would prohibit the em-
ployer in a nursing home context from
screening people who work in that es-
tablishment who take care of the el-
derly, who are on guard around the
clock at midnight when everybody else
has gone home. It is not reasonable
for us to prohibit that employer from
using the polygraph, from using every
reasonable means to protect the elder-
ly that are in that nursing home facili-
ty.
Mr. Chairman, I strongly urge my
colleagues to put some common sense
Into this debate. Whatever my col-
leagues think about the use of the
polygraph in general, the gentleman
from Florida's (Mr. Young] amend-
ment on nursing homes is eminently
fair and logical, and a balanced ap-
proach, to this process. We need to
have an amendment in this bill that
exempts nursing homes.
Mr. Chairman, I urge my colleagues
to vote for the Young amendment.
Mr. WORTLEY. Mr. Chairman, I
move to strike the requisite number of
words.
Mr. Chairman, I rise in support of
the Young amendment. As a member
of the Select Committee on Aging, I
am acutely aware of the special con-
cerns of the elderly and those involved
with caring for the elderly. This
amendment realistically confronts a
very sad reality facing our seniors?a
reality that involves cases of physical
and psychological abuse, violation of
rights, and financial exploitation in
nursing homes.
Let met make it clear from the start
that my comments in no way typify
employees and professionals of the
nursing home industry, but rather
some particular cases which could be
avoided in the future by the use of
polygraph testing.
Physical abuse in nursing homes
comes in many forms ranging from
simple neglect to being strapped to a
bed and left in the dark for hours. Oc-
casionally, actual beatings occur which
result in cuts, bruises, and broken
bones.
Psychological abuse is even more di-
verse, ranging from verbal assaults to
protracted efforts to dehumanize an
elderly person.
Additionally, violation of fundamen-
tal inalienable rights occur in nursing
homes. This includes violation of the
right to adequate, appropriate medical
treatment and the right to a clean,
safe, living environment, among
others.
Finally, financial exploitation by
nursing home employees has been ac-
complished through force, fraud,
deceit and misrepresentation. I am
talking about documented cases in
which employees have physically
forced seniors into signing checks and
cosigner release forms.
Allowing nursing home employers to
use polygraph testing would signifi-
cantly aid in weeding out those few?
and I emphasize few?employees or
applicants who pose a direct physical,
psychological or financial threat to
the elderly.
Currently, it is conceivable that a
person with a history of physical as-
sault coud gain employment, undetect-
ed, in a nursing home. Polygraph test-
ing is one important and necessary
option to help make it impossible for a
person to carry a bad track record, in
terms of nursing home employment,
from one location to another. I sin-
cerely believe that nursing home em-
ployers should be permitted to use this
testing method to aid their efforts to
keep criminals away from the elderly.
I support this amendment since it
provides a much needed tool in pro-
tecting our senior citizens. We have al-
ready made an exemption to the poly-
graph prohibition for reasons of na-
tional security, and I cannot accept
that it is any less important to protect
our elderly?your parents, my parents,
my 87-year-old mother who resides in
a nursing home. I urge your consider-
ation and strong support of this cru-
cial exemption to H.R. 1212.
Mr. GUNDERSON. Mr. Chairman, I
move to strike the requisite number of
words.
(Mr. GUNDERSON asked and was
given permission to revise and extend
his remarks.)
Mr. GUNDERSON. Mr. Chairman, I
hope that I will not take my full time,
but I think there are two important
items that need to be added to the dis-
cussion on the amendment of the gen-
tleman from Florida (Mr. YOUNG].
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November 4, 1987 CONGRESSIONAL RECORD ? HOUSE
I rise in support of this amendment
and I rise in strong support of this
amendment because I would call to
the attention of every one of my col-
leagues and particularly my colleagues
on the Democratic side of the aisle, to
take a look at the 1985 May report by
the Select Committee on Aging on "El-
derly Abuse: A National Disgrace."
0 1405
Take a look at that report and take
a look at the discussions in there on
the area of sexual abuse alone.
Let me recall for my colleagues some
of the testimony from that report. An
elderly woman with cerebral palsy re-
lated her experiences in five different
nursing homes in which she lived. In
one of those experiences she was
abused sexually by her doctor. At that
time her speech was so severely im-
paired that she could not relate this
experience to her nurses.
A daughter wrote from California re-
garding treatment of her aged mother
in a convalescent hospital. The hospi-
tal personnel would tie her mother in
a chair and leave her in a crowded
room for long periods of time. No at-
tempt was made to treat a bad eye in-
fection. Her mother was beaten up
while a patient. When questioned by
the daughter, the head nurse said.
"We really don't know what hap-
pened."
Mr. Chairman, elder abuse is hap-
pening and what we are talking about
here today could have a direct impact
on curbing such abuse. Before we get
into some kind of a rampage to auto-
matically ban the use of polygraphs
for everybody but national security,
we must somehow or another take into
consideration the very threats to those
least able to protect themselves, our
elderly population in this country.
Second, I want to point out that 41
States in this country have some kind
of legislation regarding the use of the
polygraph today. All 50 States, all 50
States, have regulation of their nurs-
ing home industry. Are we going to at
the Federal level say no matter what
you are trying to do to regulate your
nursing homes, you cannot in any way
try to protect the residents of that
nursing home by making sure that the
people that are hired as the staff and
the employees of that nursing home
do not have previous records of sexual
abuse of elder people. Where are our
consciences?
This amendment ought to be accept-
ed. There should not have been a
debate, and if there is IL rollcall I ask
everyone to vote for it in a unanimous
fashion.
The CHAIRMAN. The question is on
the amendment offered by the gentle-
man from Florida (Mr. YoutuO.
The question was taken; and the
Chairman announced that the noes
appeared to have
RECORD= VOTE
Mr. YOUNG of Florida. Mr. Chair-
man, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic 09deesee_
device, and there were?ayes 187, noes '111u""manns
237. not voting 9, as follows: Gliclunan
Gonzalez
Gordon
Grandy
Gray (IL)
Gray (PA)
Green
Gregg
Guarini
Hamilton
Hawkins
Hayes (IL)
Henry
Hertel
Horton
Houghton
Howard
Hoyer
Hubbard
Hughes
Jacobs
Jeffords
Johnson (CT)
Johnson (SD)
Jontz
Kantorsid
Kaptur
Kastenmeier
Kennedy
Kennelly
Kildee
Kleczka
Kolter
Kostmayer
LaPalce
Lantos
Leach (IA)
Lehman (CA)
Lehman (FL)
Leland
Levin (MI)
Levine (CA)
Lewis (GA)
Lipinski
Lowry (WA)
Luken, Thomas
Manton
Martel(
Martinez
Matsui
(Roll No. 4071
AYES-287
Anderson Hanunerschmidt Oxley
Archer Hansen Packard
Armey Harris Parris
Badham Hastert Pashayan
Baker Hatcher Pepper
Ballenger Hayes (LA) Pickett
Barnard HefleY Pickle
Bartlett Hefner Porter
Barton Herger Quillen
Bateman Riley Raven.)
Bennett Hochbruedtner Ray
Bentley Holloway Regula
Bereuter Hopkins Rhodes
Bevill Huckaby Roberts
Biliralds Hunter Rogers
Bliley Hutto Rose
Boggs Hyde Roth
Boniter Inhofe Roukerna
Broomfield Ireland Rowland (GA)
Buechner Jenkins &Mkt
Bunning Jones (NC) Saxton
Burton Jones (TN) Schaefer
Byron Kasten Schuette
Callahan Kolbe Schub.
Chandler Konnyu Sensenbrenner
Chapman Kyl Shaw
Chappell Lasomarsino ShurnwaY
Cheney Lancaster Shuster
Clarke Latta Sisisky
Coats Leath (TX) Skeen
Coble Lent Slaughter (VA)
Coleman (MO) Lewis (CA) Smith (NE)
Combest Lewis (FL) Smith (NJ)
Courter Lightfoot Smith (TX)
Craig Livingston Smith, Denny
Daniel Lloyd (OR)
Dannemeyer Lott Smith, Robert
Darden Lowery (CA) (NH)
Daub Lubin Smith, Robert
de is. Gana Lukens, Donald (OR)
Delay Lungren Solomon
DeWine Mack Spence
Dickinson MacKay Stangeland
DioGuardi Madigan Stenholm
Doman (CA) Marlene. Stump
Dreier Martin (IL) Sundquist
Edwards (OK) Martin (NY) Sweeney
Emerson McCandless Swindon
Erdreich McCollum Tausin
Pawell McEwen Taylor
Fields McGrath Thomas (CA)
Flippo McMillan (NC) Thomas (GA)
Frenzel Meyers Torricelli
Gallegly Mica Valentine
Gallo Michel Vander Jagt
Garcia Miller (OH) Vucanovich
Gekas Molinari Walker
Gingrich Montgomery Whittaker
Goodling Moorhead Wolf
Gmdison Morrison (WA) Wortley
Grant Myers Wylie
Gunderson Nelson Young (FL)
Hall (OH) Nichols
Hall (TX) Ortiz
NOES-237
Ackerman Bryant Dorgan (ND)
Akaka Bustarnante Dowdy
Alexander Campbell Downey
Andrews Cardin Durbin
Annunzio Carper Dwyer
Anthony Carr Dymally
Applegate Clay Dyson
Asidn Clinger Early
Atkins Coelho Begirt
AuCoin Coleman (TX) Edwards (CA)
Bates Collins English
Beilenson Conte lgsnY
Berman Conyers Evans
Bilbray Cooper Fasoell
Boehlert Coughlin Fazio
Boland Coyne Peighan
Bonior Crockett Fish
Honker Davis (IL) Flake
Bonk' Davis (MI) Florio
Bosco Deleazio Fogitetta
Boucher Delinnis Potty
Boxer Derrick Ford (MI)
Brennan Dicks Ford (TN)
Brooks Dingell Frank
Brown (CA) Dixon Prost
Bruce Donnelly Gaydos
Biaggi
Brown (CO)
Crane
Mavroules
Mazzoli
McCloskey
McCurdy
McDade
McHugh Schumer
igehilllen (MD) Sham
Mums Shays
Miller (CA) Sikorski
9559
Savage
Sawyer
Scheuer
Schneider
Schroeder
Miller (WA)
Mineta
Moakley
Mollohan
Moody
Morella
Morrison (CT)
Mnizek
Murphy
Murtha
Nagle
Hatcher
Neal
Nielson
Nowak
Oskar
Oberstar
Obey
Olin
Owens (NY)
Panetta
Patterson
Pease
Pelosi
Penns
Perkins
Petri
Price (IL)
Price (NC)
Purnell
Rahall
Rangel
Richardson
Ridge
Rinaldo
Ritter
Robinson
Rodin?
Roe
Rostenkowski
Rowland (CT)
Roybal
Russo
Sabo
Skaggs
Skelton
Slattery
Slaughter (NY)
Smith (FL)
Smith (IA)
&wive
Solos
Sprat
St Germain
Staggers
Stallings
Stark
Stokes
Studds
Swift
Synar
Tallon
Tauke
Torres
Towns
Traficant
'Frazier
Udall
Upton
Yenta
Visclosky
Volkiner
Walgren
Watkins
Waxman
Weber
Weiss
Weldon
Wheat
Whitten
Williams
Wilson
Wise
Wolpe
Wyden
Yates
Yatron
Young (AK)
NOT VOTING-3
Duncan
Gephardt
Kemp
Owens (UT)
110emer
Stratton
0 1420
Mr. WELDON changed his vote
from "aye" to "no."
So the amendment was rejected.
The result of the vote was an-
nounced as above recorded.
AMENDMENT OMB= BY MRS. ROOKRMA
Mrs. ROUMEMA. Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mrs. EMMA:MA.
Page 8, after line 13. insert the following
new subsection:
(d) EXtriPTION FOR SECt7R/TY SIXVICES.?
(1) Subject to paragraph (3), this Act shall
not prohibit the use of a lie detector test on
employees or prospective employees of a pri-
vate employer whose primary business pur-
pose consists of providing armored car per-
sonnel. personnel engaged in the design, in-
stallation, and maintenance of security
alarm systems, or other uniformed or plain-
clothes security personnel and whose func-
tion includes protection of?
(A) facilities, materials, or operations
having a significant impact on the health or
safety of any State or political subdivision
thereof, or the national security of the
United States, as determined under rules
and regulations issued by the Secretary
within 60 dills after the date of the enact-
ment of this Act. including?
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9560 CONGRESSIONAL RECORD ? HOUSE
(I) facilities engaged in the production,
transmission, or distribution of electric or
nuclear power;
(ii) public water supply facilities;
(iii) shipments or storage of radioactive or
other toxic waste matetials; and
(iv) public transportation; or
(B) currency, negotiable securities, pre-
cious commodities or instruments, or propri-
etary information or property.
(2) The exemption provided under para-
graph (1) shall not diminish an employer's
obligation to comply with?
(A) applicable State and local law. and
(B) any negotiated collective bargaining
agreement,
which limit or prohibit the use of lie detec-
tor tests on such employees.
(3) The exemption provided under this
subsection shall not apply if?
(A) the results of an analysis of lie detec-
tor charts are used as the sole basis upon
which an employee or prospective employee
is discharged, dismissed, disciplined in any
manner, or denied employment or promo-
tion; or
(B) the test is administered to an employ-
ee or prospective employee who is not or
would not be employed to protect facilities,
materials, operations, or assets reeferred to
in paragraph (1).
Mrs. ROUICEMA (during the read-
ing). Mr. Chairman, I ask unanimous
consent that the amendment be con-
sidered as read and printed in the
RECORD.
The CHAIRMAN. Is there objection
to the request of the gentlewoman
from New Jersey?
There was no objection.
Mrs. ROUKEMA. Mr. Chairman, I
hope that as we consider this amend-
ment there will be less heat and more
light on the subject.
This is the same one which was
passed by the House last year and
which the gentleman from Montana
(Mr. Wuxi/tits] accepted last year. He
stated then that "it is very necessary
? ? ? to establish symmetry between
what we allow in the public sector
? ? ? and what we allow in the private
sector." And that it "establishes some
symmetry with what the FBI, the
CIA, and the National Security
Agency are allowed to do."
The amendment applies to firms
whose primary business is to furnish
protective security services for sensi-
tive facilities affecting the public
health and welfare and valuable items
and documents. In other words, pri-
vate firms which perform a policing
function of protection of certain types
of property and facilities would have
the same ability to use the polygraph
as public police forces.
This amendment would include ar-
mored car, uniformed and plainclothes
guards and security alarm companies.
It would allow the administration of
polygraphs to those who guard such
facilities as nuclear powerplants,
public water supplies, and public
transportation, such as airports. I
cannot overstate the need for airport
security. There would be devastating
results to the public if just one terror-
ist infiltrated such facilities.
Let me give you just one example of
the need for this amendment. The ar-
mored car industry transports, counts
and stores over $15 billion per day.
The majority of the monetary losses
in the industry-65 percent?result
from internal theft. Furthermore, em-
ployees in the industry are frequently
required to carry guns. Employers nec-
essarily have a great concern for inves-
tigating those they employ in such
sensitive positions, both to protect
their customer's property and to pro-
tect the public.
To address concerns that the exemp-
tion not be so broad as to cover low
priority security functions, there is an
important limitation. The administra-
tion of polygraphs is only allowed
when employees are engaged in the
protection of currency, negotiable se-
curities, precious commodities or in-
struments, proprietary information, or
facilities, materials or operations
having a significant impact on our na-
tional security or the health or safety
of a state or locality.
Finally, the amendment contains a
safeguard for employees who are
tested. They may not be denied em-
ployment, discharged, or disciplined
solely on the basis of the results of a
polygraph test. An employer would
have to have additional corroborating
information before taking any of these
actions.
The amendment specifically states
that more restrictive state or local law
or collective bargaining agreements
limiting polygraph use are not pre-
empted.
In further defining these interests
through regulations, I emphasize that
the language in the amendment is de-
signed to be inclusive and broadly con-
strued. Therefore, we do not expect
the Secretary in his regulations to
limit the exemption to just those fa-
cilities listed in the amendment. In ad-
dition, the definition of "proprietary
information" shall include documents
which are essential for the functioning
of a business.
Finally, the amendment contains a
safeguard for employees who are
tested. They may not be denied em-
ployment, discharged, or disciplined
solely on the basis of the results of a
polygraph test. An employer would
have to have additional corroborating
information before taking any of these
actions.
Even if you believe there is a need
for this bill's prohibitions, you must
realize that there are certain interests
which are so sensitive to both the em-
ployer and the public that we must
provide special consideration. The
sponsors of the bill already recognize
that a balancing test between individ-
ual interests and the public interest is
sometimes needed because exemptions
are included for all State, local, and
Federal Government employers and
for defense and FBI contractors. The
private security industry has a similar
compelling need for access to the poly-
graph.
November 4, 1987
I urge you to support this important
common sense public safety exemp-
tion, as did the House last year.
0 1435
Mr. SKELTON. Mr. Chairman, I approach
the subject?in favor of the original bill and
against the substItute=with trepidation. A
number of years ago, I had the opportunity to
serve as the Lafayette County prosecuting at-
torney back home in Missouri, and on several
occasions, I was aware of and knew of the
administration of polygraph tests to people
who were suspected of criminal activity in one
form or another. As a result of the experi-
ences that I had, there were cases in which
the findings were, at best, inconclusive. On
two occasions I had good reason to believe
that people beat the test. The fact of the
matter is these tests are far from reliable and
polygraphs are no better than the person who
gives them.
We are fortunate to have in my home
county a sheriff who has served on the force
for some 27 years, and I think no one would
question his ability. But, compare this gentle-
man, Sheriff Gene Darnell of Lafayette
County, with someone who has had only 6
weeks of training and is a certified polygraph
tester and I think that there would be a great
deal of difference between the two.
In all truthfulness I have some serious prob-
lems with this issue, and because of my past
experiences, I am driven irresistibly in favor of
the bill.
Mr. SLATTERY. Mr. Chairman, I
move to strike the last word, and I rise
in support of the Roukema amend-
ment.
Mr. chairman, we all agree that the
polygraph can be and has been
abused. There is no question that
some people have been wrongfully
denied employment or fired on the
basis of a faulty polygraph examina-
tion. There can be no doubt that this
legislation will sharply reduce the use
of the polygraph in the workplace.
This legislation will not eliminate
the use of the polygraph. But, we are
deciding where and when the use of
the polygraph is justified. The Educa-
tion and Labor Committee has already
determined that for purposes of na-
tional security and law enforcement,
some useful information can be gained
from polygraph examinations.
Private security companies are often
hired to fulfill functions of equal im-
portance, especially in the area of
public safety.
The Roukema amendment provides
a narrow, well defined exemption from
the provisions of H.R. 1212. Only pro-
fessional security services could use
polygraphs and only for employees
who are assigned to protect:
Electric or nuclear powerplants;
Radioactive or toxic waste;
Public water supplies;
Public transportation; or
Currency, negotiable securities and
other precious materials.
In these instances, the overriding
concern must be for the protection of
the public and the preservation of
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November 4, 1987
CONGRESSIONAL RECORD ? HOUSE H 9561
losses of currency or other precious
items.
The Roukema amendment recog-
nizes that the polygraph does not and
cannot replace appropriate back-
ground checks on prospective employ-
ees. The results of a polygraph test
could not be used as the sole basis
under which an employee or prospec-
tive employee is dismissed, disciplined,
or denied employment.
The polygraph is far from a perfect
tool. But, I believe that in a limited
number of instances, under the direc-
tion of a qualified examiner, the poly-
graph can be a useful tool.
In this case, I believe that we must
put the public safety first. I urge a
"yes" vote on the Roukema amend-
ment.
Mr. SUNDQUIST. Mr. Chairman, I
move to strike the requisite number of
words.
Mr. Chairman, I rise in support of
the amendment offered by the gentle-
woman from New Jersey [Mrs. ROIIKE-
MA] to exempt the private security in-
dustry from the restrictions placed
upon the use of the polygraph in the
pending legislation.
I think it is important, Mr. Chair-
man, as we take up this critical bill,
that we have the good sense to make
exceptions. I think it is important to
recognize that we cannot make broad
rules, that we cannot just get the
steamroller going and say, "The public
be damned."
This amendment is necessary to pro-
tect the private security industry, and
I commend the gentlewoman from
New Jersey [Mrs. ROTIKEMA] for offer-
ing her amendment. It is necessary for
consumers of private security, and I
think it is critical for the general
public safety.
Mr. Chairman, Government security
agencies, such as the CIA and the FBI,
as has been explained previously, have
the option to use polygraph tests. Pri-
vate security is an extension of Gov-
ernment security, and this is true par-
ticularly when security personnel pro-
tects companies doing contract work
for the Government.
Mr. Chairman, it is only consistent
with current policy that private com-
panies be given the same polygraph
exemptions as Government security.
To do less does not make any sense.
The polygraph test is a useful tool. It
is a deterrent, it is a protector. This
test, or even better said, the threat of
this test effectively deters criminally
minded individuals from abusing sensi-
tive security positions. This test also
protects the innocent, and that is im-
portant to consider. It protects the in-
nocent in cases where integrity is ques-
tioned.
Security exists to protect the safety
of the public. The general public is at
danger if this amendment does not
pass. The Roukema amendment en-
sures against terrorist or psychopathic
takeovers of vulnerable public installa-
tions such as airports and water facili-
ties.
Each and every one of us is affected
by private security. We are affected
when we go to a football game, when
we go to the airport, when next
summer we go to the conventions of
the Democratic and the Republican
Parties, when we go to the hospital,
when we go to the grocery stores, or
when we go to banks or any public
places, and as has been mentioned pre-
viously, we in the House allow the use
of the polygraph here at the Capitol.
Yet we are going to say to the private
sector, "You can't use this same tool
while we in the House of Representa-
tives allow it to be used for our protec-
tion."
The largest independently owned se-
curity company in America is head-
quartered in Memphis?Guardsmark,
Inc. Its employees range from
security guards at industrial plants to
highly sophisticated security experts in-
side sensitive industries where there is
no room for error. Think for a moment
about the damage that could be done.
We have read in the papers about prob-
lems in recent times. Think for a mo-
ment about the damage that could be
, done by the wrong person doing baggage
I screening. Think for a moment about
the misconduct, as was recently report-
ed, among security guards at a nuclear
powerplant. If this amendment does not
pass, we face that problem.
Finally, let us bear in mind that the
results from this test cannot be used
as the sole factor of an employment
decision.
In a company that I am familiar
with, Mr. Chairman, when they have
been doing their interviewing and the
prospective employee was given a list
of the questions that were to be asked
on the polygraph, over 65 percent of
the people who were discovered to be
guilty of filling out that employment
application wrongly admitted to that
offense prior to the polygraph test
being administered. In other words,
almost two-thirds of the people who
were not telling the truth admitted
prior to the test that they had filled
out the application wrongly.
Are we going to deprive the private
security industry of that tool? Good
security can only exist with rigorous
standards. I would urge my colleagues
to support this amendment to guaran-
tee effective security performance by
private security companies.
Mr. Chairman, I ask the Members to
support the amendment to guarantee
good security for sensitive businesses
and to support it for the safety and
welfare of the general public.
Mr. BIAGGI. Mr. Chairman, I move
to strike the requisite number of
words, and I rise in support of the
amendment.
Mrs. ROUICEMA. Mr. Chairman,
will the gentleman yield?
Mr. BIAGGI. I am glad to yield to
the gentlewoman from New Jersey.
Mrs. ROUKEMA. Mr. Chairman, I
want to thank the gentleman from
New York [Mr. BIAGGI) for the won-
derful support he has given to this
amendment, both last year in commit-
tee and on the floor, and now this
year. I appreciate the leadership he
has shown on this issue.
Mr. BIAGGI. Mr. Chairman, I thank
the gentlewoman from New Jersey.
She is very kind. I was just about to
say that I am very proud to join the
distinguished gentlewoman from New
Jersey in offering this important
amendment to permit certain seg-
ments of the private security industry
to continue to use the polygraph test.
I want to commend Mrs. ROUNEMA for
the effective leadership she has dem-
onstrated on this important issue.
Mr. Chairman, this is the same
amendment that we offered last year
on the House floor. It was adopted
then by voice vote, and I would sug-
gest to my colleagues that it deserves
your overwhelming support once
again. Simply put, it recognizes the
highly sensitive nature of the security
industry, while providing a number of
carefully crafted and very important
labor protections. Let me stress to my
colleagues that, as a strong supporter
of labor, I would not be endorsing this
amendment if it did not protect the
rights of labor.
As a 23-year police veteran, I believe
there are certain very specific situa-
tions where the polygraph can and
should be used to help prevent crimes,
and to detect criminals once a crime
has been committed. This is clearly
one of those times.
This amendment would allow a pri-
vate employer to use the polygraph
for prehiring and posthhing purposes,
but only in those cases where employ-
ees would be responsible for high pri-
ority security functions. The bill de-
fines these jobs as those that have a
significant impact on the health or
safety of any State or local govern-
ment, as well as those jobs that impact
on national security. The only other
security personnel who would be eligi-
ble for the polygraph test under this
amendment would be those responsi-
ble for protecting public utilities, haz-
ardous materials shipments, public
transportation, currency, negotiable
securities, precious commodities, or
proprietary information from terrorist
or other criminal threats. I want to
emphasize that this amendment does
not provide a blanket prohibition for
the entire private security industry. It
deals strictly with terrorism and other
highly dangerous security risks. Noth-
ing more.
Certainly, a crime in any of these
areas could have devastating conse-
quences. That is why the private secu-
rity industry deserves the same special
consideration already given by this bill
to Government employers and private
contractors dealing with intelligence
or counterintelligence with the CIA,
NSA, Department of Defense, and the
FBI. And, that's why this amendment,
unlike some of the others to be of-
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CONGRESSIONAL RECORD ? HOUSE
fered, is totally consistent with what's
already in the bill.
Let me offer a perfect illustration of
why this amendment is so important.
In 1983, a member of a Puerto Rican
terrorist group robbed a Wells Fargo
armored car depot of $7 million?the
second largest theft in U.S. history.
Why is that incident so important to
today's debate? Because that Puerto
Rican terrorist was a Wells Fargo se-
curity guard. Unfortunately, he was
hired in Connecticut. a State that does
not allow polygraph testing. Based on
his employment profile, this terrorist
was going to make a fine security
guard and was entrusted with guard-
ing millions of dollars. Only the poly-
graph test could have determined his
true criminal intent. In this case, a
group of violent terrorists ended up
with $7 million in stolen money to
fund death and destruction. Simply
put, we need to fight terrorism with
all the tools at our disposal, and the
polygraph test is one of those impor-
tant tools.
As stated previously, the amendment
contains a number of very important
labor protections. For example, it
would not preclude existing State and
local law, or any negotiated collective-
bargaining agreement, which limit or
prohibit the use of lie detector testa;
and it guarantees that the analysis of
lie detector charts will not be used as
the sole basis for denying employment
or promotion. The Department of
Labor would be required to ensure
that these provisions are effectively
enforced and that the rights of the
employee under these provisions are
fully protected.
H.R. 1212 seeks to prevent employ-
ment discrimination based on the irre-
sponsible use of the polygraph test by
private employers. I fully support that
worthy objective and am an original
cosponsor of this bill. I know that too
much of the private sector does abuse
and overuse the polygraph to the det-
riment of our Nation's labor force.
However, the same cannot be said
about the private security services in-
dustry. In fact, evidence we heard pre-
sented before the Education and
Labor Committee has convinced me
that the polygraph test is an impor-
tant anticrime tool that is selectively
and responsibly used by the private se-
curity services industry.
Mr. Chairman, for anyone interested
in fighting terrorism and other serious
crime, this is a good amendment. For
anyone interested in protecting the
rights of labor, this is a good amend-
ment. And, for anyone interested in
protecting the security interests of our
Nation, as well as the personal safety
and property of American citizens,
this is a good amendment.
I strongly urge Its aPPreeni-
1450
Mr. MARTINEZ. Mr. Chairman, I
move to strike the requisite number of
words.
Mr. Chairman, I want to state that
we will get into the same debate that
we got into in the past over the fact
that some Members believe that this is
the save-all of all the problems of in-
dustry, that by polygraphing employ-
ees prior to hiring that we are going to
weed out the people that would perpe-
trate any wrongdoing while in your
employ
The truth of the matter is, it is not,
because it does not take into consider-
ation the conditions at the time when
that person would perpetrate, for
whatever reason.
I doubt very much that it would do
anything other than allow people to
misuse this device for discrimination.
I was interested in the comments of
the gentleman from Vermont about
being on C-SPAN and getting a call
from a person who was a polygrapher
for law enforcement, and where the
gentleman described taking a number
of applicants, screening them down to
four that he knew of the myriad of ap-
plicants he got that were honest.
In my city the individual doing the
polygraph, after receiving an educa-
tion in polygmphing from one of the
finest schools back here in the East,
used this to discriminate against em-
ployees.
It was determined after an investiga-
tion of his activities as a polygrapher
that the applicants that were being
denied were those of Hispanic descent,
and that was the only basis on which
he was using the polygraph for evalu-
ating these people coming under those
applications.
There is a lot of area for abuse, and
the one thing that must be kept in
mind, when we talk about protecting
people's rights, we have to understand
that we are trying to protect the em-
ployees' rights, or people that are ap-
plying for jobs and their rights; and
there is no way that anybody can
really justifiably make the argument
that it is going to protect their rights.
They are victims of the failure
factor of this machine and process,
and it will not protect their rights. It
gives the ability of the bias of the po-
lygrapher an opportunity to manipu-
late a situation to his like or dislike,
and for that reason I do not think it
should be used for anything more
than incident-specific after a situation
has occurred, and only as a part of a
total investigation, and where there Is
some determination, some direction
they can go with that investigation,
something they gather from that, so
that they might bring to the front the
hard evidence that actually deter-
mines whether this person is guilty or
innocent.
Mr. BARTLETT. Mr. Chairman, will
the gentleman yield?
Mr. MARTINEZ. I yield to the gen-
tleman from Texas.
Mr. BARTLETT. Mr. Chairman, I
thank the gentleman for yielding to
me.
I want to inquire what the gentle-
man meant. Did the gentleman mean
November 4, 1987
to say that the gentleman would then
support an incident-specific exception,
so that the polygraph could be used if
there was a specific indicident, because
an amendment will be offered later by
the gentleman from Wisconsin (Mr.
Guicesssosa for inctdent-specific test-
ing?
Mr. MARTINEZ. As the gentleman
read from the bill earlier, the bill pro-
vides for the use only as a part of a
total investigation.
I supported that portion of the bill
and offered that as an amendment in
committee which indicates my support
for the use in specific incidents.
Mr. BARTLETT. If the gentleman
would further yield, because I am
trying to clarify for the House, the bill
as currently drafted coming out of
committee, H.R. 1212, as I read it, does
not provide for any use of polygraphs,
except by a Government agency, and
does not provide for an incident-specif-
ic test.
I respect the gentleman saying that
he would support an incident-specific
use.
Mr. MARTINEZ. Yes.
Mr. BARTLETT. I would comment
to the gentleman that later in the
debate, probably way towards the end,
the gentleman from Wisconsin (Mr.
Gurnmsson] will have a very specific
amendment that will permit incident-
specific testing or postemployment;
and I would commend that to the gen-
tleman from California.
Mr. SHAW. Mr. Chairman, I move to
strike the requisite number of words.
Mr. Chairman. I doubt that I will
consume my full 5 minutes. The
debate seems to be going along the
lines of those who are voting against
this particular amendment, those
speaking against it, those that have
voted already. Unfortunately, the ma-
jority has voted on the wrong side of
the amendment of the gentleman
from Florida (Mr. Yousol, which was
a very good amendment.
In looking at this as to the object of
what we are talking about, you are
looking at the rights of the employee
and what the rights of the employer
should be. One cannot look only that
far.
We have to look to the general
public, to the good of the entire com-
munity. We have to look to what are
the rights of those that live near an
atomic plant to know that those em-
ployees who are in charge of the secu-
rity of that atomic plant have gone
through every bit of screening that
they could possibly be subjected to.
We are talking about when someone
entrusts his money to a carrier, that
those employees have been screened in
every way possible. Yes, there is going
to be abuses. Yes, there Will be abuses.
There was one cited for discrimina-
tion by the gentleman from California.
We cannot legislate to address the
worst among us, but we must always
address the rights of the safety of in-
dividuals.
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CONGRESSIONAL RECORD ? HOUSE H 9563
In my district office we are protected
by private security firms. I want to
know that my people working in my
office, and my constituents who are
coming in, my elderly who are visiting
their Social Security offices, which are
also in that Federal building, I want to
know that they are being protected.
This is a most important amend-
ment, and I compliment the gentle-
woman from New Jersey for having of-
fered it.
It is very fair and very narrow, and
we are not talking about doing great
harm to this legislation, even though I
feel very strongly that the legislation
Itself is ill-advised.
Mrs. ROUPZEMA. Mr. Chairman,
will the gentleman yield?
Mr. SHAW. I yield to the gentle-
woman from New Jersey.
Mrs. ROUKEMA. Mr. Chairman, I
thank the gentleman for yielding to
me.
The gentleman from Florida has
made an excellent point here. The
gentleman referred to the fact that
this amendment is carefully drawn.
The gentleman asked the question,
are we going to say we do not want the
best possible people properly screened
to guard nuclear powerplants? Do we
not want properly screened personnel
protecting water supplies?
Can you believe the deleterious ef-
fects of some person getting at a
public water supply? That is not
beyond one person's imagination.
Included also in this amendment are
those persons that are involved in the
shipment and storage of radioactive or
other toxic waste materials.
The gentlemen and I know how we
have worked so hard on legislation in
this Congress to protect the radioac-
tive and toxic wastes. We know what
emotions break out in communities if
there is any hint of a toxic waste prob-
lem.
Can you imagine what the American
public's reaction is going to be to learn
that we cannot even give employers
the right to use a polygraph as one
tool in screening the employees that
have responsibility for toxic wastes
and radioactive wastes?
I thank the gentleman for the gen-
tleman's contribution.
Mr. SHAW. The gentlewoman from
New Jersey is making some wonderful
points.
The gentlewoman is trying to cor-
rect something by this particular
amendment. What this bill does in its
present form, it does not create rights.
We cannot create rights.
We can merely redistribute them.
Sometimes they need to be redistribut-
ed; but in this instance, one is talking
about the water supply or an atomic
plant, the rights are being taken away
from the consumer and the general
public, simply to protect the rights
which have in very minor instances
been abused of the employee.
This one is wrong. I hope that the
Members of the House will vote yes
for the amendment of the gentlewom-
an from New Jersey [Mrs. Rouiczmal.
It is a most important amendment.
Mr. VALENTINE. Mr. Chairman, I
move to strike the requisite number of
words.
Mr. Chairman, I do not suppose
there is much that I can add to this
discussion that would not repeat or, I
hope, underscore some of the argu-
ments that have been made previous-
ly.
I rise in strong support of this
amendment, Mr. Chairman.
0 1505
I rise to express to my colleagues a
grave concern which I have concerning
this proposed legislation and a lot of
other matters which have come before
the U.S. House of Representatives in
the 5 years that I have been privileged
to serve here.
Do we really believe that American
business does not understand what we
are about, what some elements here
are about as we here in this legislation
say to them that we do not have
enough confidence in you to entrust
into your hands an instrumentality, a
mechanism, a machine, which is okay
for us to use in the Federal Govern-
ment? We can use it all we want to.
We passed legislation recently which
says in no uncertain terms that the
U.S. Government is free to use a poly-
graph or lie detector in many different
sets of circumstances, yet we have
elected to say to American business
here today that we do not think you
gentlemen collectively have got
enough sense to use it.
We say to the young proprietor or
old proprietor of a jewelry store that
if he has a handful of diamonds that
are missing, you know, you could put
him into bankruptcy by the wealth
that you could hold in one hand, that
this instrumentality which some say is
faulty and is an instrument of the
devil, he can not use it, but Uncle Sam
can use it all he wants to.
One final comment. I have great re-
spect for all the gentlemen who have
testified here and for those who spon-
sored this legislation. They are my
friends, I hope, but it is strange to me,
maybe some of the rest of you under-
stand this, but it is strange to me that
the sponsors of this legislation could
stand up here and tell us what a sorry
useless unreliable contraption this is,
but say that not only can the Govern-
ment use it, but with the legislation
that came up for consideration in
1986, and I hold in my hand a copy of
the CONGRESSIONAL RECORD, they ac-
cepted, after having cursed this device
so vehemently, they accepted an
amendment which permitted the use
of polygraph examinations for current
and prospective employees in the
pharmaceutical industry, for example.
They accepted the use of polygraph
examinations for employees who work
as security personnel protecting facili-
ties. They accepted an amendment
which permitted the use of polygraph
examinations for employees at public
utilities and they accepted the amend-
ment which was voted down by this
body a few minutes ago.
Now what does all this mean? What
are the folks back home looking at me
and looking at the rest of us, what are
they to make of that? We come here
and say that this dastardly contrap-
tion, that you can not use it in Ameri-
can business, with certain exceptions,
but that we in the Government can
use it all we want to.
I suggest that we ought to give this
more serious consideration, Mr. Chair-
man. We ought to support this amend-
ment and the other amendments
which seek to liberalize this legislation
and then defeat the legislation and
adopt the substitute which gives us
some reasonable, meaningful, sensible
relief.
Mr. Chairman, although it is clear that H.R.
1212 has widespread support, I hope my col-
leagues will reconsider their positions on the
bill and on the Young-Darden substitute.
As I stated last year during House consider-
ation of a similar bill, if polygraphs are so un-
reliable, so wrong, and if their use violates in-
dividual rights, then their use should be made
unlawful in all situations and by all citizens. In-
stead, H.R. 1212 will exempt large numbers of
Government employees as well as certain pri-
vate consultants, contractors, and employees
of contractors doing business with the Federal
Government.
So far this year, the House has given over-
whelming approval to a randon counterintelli-
gence polygraph program at the Department
of Defense, and to a similar polygraph pro-
gram for diplomatic and embassy security per-
sonnel as a part of the State Department au-
thorization bill that passed the House unani-
mously. If the use of polygraphs Is acceptable
in these situations, then I believe private in-
dustry should be allowed to utilize polygraphs
under certain conditions and with strong safe-
guards as a security tool.
On the other hand, if polygraphs are unreli-
able, why should we use them to test those
who are entrusted with our most sensitive se-
crets? Are they unreliable in detecting shoplift-
ing but all right for espionage? I fail to see the
logic in our position.
The Young-Darden substitute would provide
for the use of polygraphs only under carefully
regulated conditions, with protection for those
taking the tests, and impose standards for test
examiners. This is a much fairer approach
than the blanket prohibition of H.R. 1212.
If the Young-Darden substitute is voted
down and H.R. 1212 is passed without ex-
empting amendments, than the House will be
saying to the American people that it is per-
fectly all right, even commendable, for Gov-
ernment to use polygraphs but that the private
sector must not touch them.
Do we really want to administer this slap in
the face to the private sector? Think about it.
Mr. BARTLE'rr. Mr. Chairman, I
move to strike the requisite number of
words.
(Mr. BAR'I'LETT asked and was
given permission to revise and extend
his remarks.)
Mr. BARTLETT. Mr. Chairman, I
rise to speak in favor of this amend-
ment. In speaking in favor of the
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CONGRESSIONAL RECORD ? HOUSE November 4, 1987
amendment I want to call to the atten-
tion of the House that this is a differ-
ent issue and a different amendment
than the issues we have been debating
all day; that is to say that the gentle-
woman from New Jersey has con-
structed a very narrow amendment
that should have been accecpted by
the sponsors of the legislation.
Now, there is a fundamental dis-
agreement within this body about the
need to eliminate the use of the poly-
graph as a whole, and we all under-
stand that and from the last vote it is
apparent that at least a majority so
far in the debate would choose to do
that and a minority would not choose
to do that; but the gentlewoman from
New Jersey (Mrs. Romosits3 is offer-
ing an amendment that those who
favor the bill can and ought to vote
for. I have gotten a copy of the
amendment and I want to walk
through it, describing for the House
how narrow this amendment is. The
Roukema amendment would set out to
protect the public from some rather
serious and dangerous instances of po-
tential abuse without permitting any
abuse whatsoever of the polygraph of
those potential employees.
Now, the amendment is narrow. The
gentlewoman has very explicitly draft-
ed the amendment so that it permits,
or does not prohibit the use of a poly-
graph on employees by a private em-
ployer only if that private employer is
an employer whose business consists
of providing armored car personnel,
personnel engaged in the design, in-
stallation, and maintenance of securi-
ty alarm systems, or other uniformed
or plainclothes security personnel and
whose function includes the direct
protection of the public in specific
ways, including only?and it is a limit-
ed list?including only the health or
safety of any State or political subdivi-
sion and, if that involves the transmis-
sion or distribution of nuclear power
or electric power, public water supply
facilities, shipments, or storage of ra-
dioactive or other toxic waste materi-
als, and public transportation. The
other possibility is the transmittal or
protection of currency or negotiable
securities or precious commodities or
instruments.
The Roukema amendment?what I
am trying to bring to the attention of
the House is that it is not unlimited. It
Is a very narrow amendment that only
applies to armored car personnel and
security personnel involved in those
activities.
Further, the Roukema amendment
says that the result of that polygraph
cannot be used as the sole determi-
nant, and further the results cannot
be used on an employee unless the em-
ployee or prospective employee is em-
ployed directly to protect the facili-
ties, materials, operations, or assets
that are set out in the bill. So the
Roukema amendment is drafted so
carefully, it seems to me, as to elimi-
nate all the arguments that have been
used against amendments in the past.
It is far more narrow than even the
Government exemption that we have
in the rest of the bill
Mrs. ROUICEMA. Mr. Chairman,
will the gentleman yield?
Mr. BARTLETT. I yield to the gen-
tlewoman from New Jersey.
Mrs. ROUKEMA. Mr. Chairman, I
thank the gentleman from Texas for
his explanation and the stress that he
has put quite properly on the defini-
tion and the limitations of the amend-
ment.
I think the corollary of what the
gentleman has just said should also be
stressed, which is that there is a pro-
tection carefully devised here in this
amendment against abuse. The poly-
graph cannot under my amendment be
used as the sole vehicle or instrument
for making a determination on em-
ployment, promotion, dismissal, or any
other factor pertaining to the appli-
cant or the employee, and I think that
is equally important, because one of
the arguments that we hear is that we
are going to somehow be using poly-
graphs as the sole instrument to hang
the employee or hand the innocent ap-
plicant. This is not the case and it is
expressly prohibited in my amend-
ment.
Mr. BARTLETT. Mr. Chairman, the
gentlewoman is correct.
Mr. WILLIAMS. Mr. Chairman, I
move to strike the requisite number of
words. I rise in opposition to the
amendment.
Mr. Chairman, the gentlewoman has
attempted to specifically draw her
amendment. I think she has probably
done it as well as it could be done;
however, to vote for this, you first
have to believe that the gadget works.
You first have to accept that there is
universal physiological response
shared by all liars, that they all per-
spire about the same rate, their respi-
ration increases when they start lying,
all at about the same rate; the heart
rate increases by a certain amount.
You have to accept that this metal
box can pick out the liars from the
nonliars, and there is no scientific evi-
dence that that is true.
Now, specifically with regard to the
language that the gentlewoman has
drawn, I would say that I do not want
my colleagues to misunderstand this
amendment. It is not limited to just se-
curity guards guarding, for example,
nuclear powerplants. In fact, it is not
limited to just security guards at all. It
also includes the engineer who is
working quietly in the laboratory
trying to develop a new circuit system
to be used for alarm systems or for
electronic fences. Those people if they
want a job, those engineers, could
have to undergo a lie detector test
This amendment is not just limited
to certain security guards who are
guarding airports. It also includes that
electrician who comes by your house
to install security alarm, just the elec-
trician is also included in this amend-
ment.
If a private company hires a plain-
clothes man to ride on Metro, those
plainclothes men to get a job would
have to undergo a lie detector test; so I
say again, it is not limited to security
guards.
You know, we are starting that part
of the process now which I guess we
could call the butchers, bakers and
candlestick makers, amendments. I
mean, every industry in the United
States, security guards, the electrical
industry, plainclothes people, the day
care operators, the nursing home oper-
ators, the bankers, the butchers, the
bakers and the candlestick makers are
all going to come before us now with
amendments asking that they be ex-
empted from this bill
I think it is wrong to start trying to
pick and choose those industries or
those individuals that we should give
this phony lie detector gadget test to.
So I oppose the gentlewoman's
amendment and I do so knowing that
she made an attempt to craft it care-
fully, but (a) the lie detector does not
work, and (b) it is not crafted all that
carefully. If it only included, if the
amendment only included security
guards and private police and private
protective service people, it would
mean that more than half a million
Americans would be subjected to this
gadget for which there is no scientific
evidence that it works.
Mr. BARTLETT. Mr. Chairman, will
the gentleman yield?
Mr. WILLIAMS. Yes; I am pleased
to yield to the gentleman from Texas.
Mr. BARTLETT. Mr. Chairman, I
thank the gentleman for yielding.
Again, to clarify the amendment, the
amendment does not require that any-
one use a polygraph, but only that the
Federal law not prohibit the use of the
polygraph, just as in the last amend-
ment.
I do want to call the gentleman's at-
tention to the last paragraph of the
amendment on page 2 beginning on
line 19. It is a limiting paragraph. It
limits the rest of the amendment, and
I will read it very slowly.
The exemption provided under this sub-
section shall not apply if the test is adminis-
tered to an employee or prospective employ-
ee who is not or would not be employed to
protect facilities, materials, operations, or
assets referred to in paragraph (1).
SO in fact the amendment does not
apply to people who are not used to
protect those facilities. It is only those
employees who are engaged in the
direct protection of those facilities.
The amendment does not cover secre-
taries and gardeners and maintenance
workers and people who raise the flag,
as has been previously discussed.
The CHAIRMAN. The time of the
gentleman from Montana has expired.
(By unanimous consent, Mr. Wit.-
mum was allowed to proceed for 1 ad-
ditional minute.)
Mr. WILLIAMS. Mr. Chairman, I
understand-that the gentleman is pre-
cisely correct. I would only read to the
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November 4, 1987 CONGRESSIONAL RECORD
gentleman the first paragraph, subsec-
tion (d), which indicates that the lie
detector test can be used, quoting
from the amendment now, on employ-
ees or prospective employees of a pri-
vate employer whose primary business
purpose consists of providing armored
car personnel, personnel engaged in
the design, installation, and mainte-
nance of security alarm systems.
Mrs. ROUKEMA. Mr. Chairman,
will my good friend, the gentleman
from Montana, yield?
Mr. WILLIAMS. Yes; I am pleased
to yield to the author of the amend-
men? the gentlewoman from New
Jersey.
0 1520
Mrs. ROUKEMA. Mr. Chairman, I
believe the gentleman from Montana
[Mr. WILLIAMS] should read that first
section and that should be understood
In conjunction with the exemption
provided on page 2, section 3, line 12.
The CHAIRMAN. The time of the
gentleman from Montana (Mr. Wit-
mum] has expired.
(On the request of Mrs. ROUKKKA,
and by unanimous consent, Mr. Woe
maws was allowed to proceed for 1 ad-
ditional minute.)
Mrs. ROUKEZELA. Mr. Chairman,
will the gentleman yield?
Mr. WM T AUK I yield to the gen-
tlewoman from New Jersey.
Mrs. ROUHEMA. Section 3 at line
12 on page 2 says. "the exemption pro-
vided under this subsection shall not
apply," and then are two sections. As
the gentleman from Texas (Mr. BART-
zarr7 has said, part B is the limiting
section. That limits the application to
only those personnel that are directly
involved.
I think the gentleman from Mon-
tana [Mr. WittiAmal should remember
that last year we worked together on
the development of this amendment
and we had hoped together to reach
that kind of an agreement that would
be limiting and would be very specific
as to its application.
Mr. WILLIAMS. Mr. Chairman, re-
claiming my time, finally I again want
to express my and the committee's op-
position to this amendment which
would be the beginning of opening up
this bill, and once the opening up of
this legislation starts for security
guards or electricians or the people
who maintain or prepare alarm sys-
tems, there will be no stopping it.
I urge my colleagues to vote "no."
The CHAIRMAN. The question is on
the amendment offered by the gentle-
woman from New Jersey [Mrs. Romar-
rata).
The question was taken; and the
Chairman announced that the ayes
appeared to have it.
RECORDRD VOTE
Mr. WILLIAMS. Mr. Chairman, I
demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic
device, and there were?ayes 210, noes
209, not voting 14, as follows:
Anderson
Andrews
Archer
Armee
Dedham
Baker
Ballenger
Barnard
Bartlett
limrterr
Bateman
Bennett
Bentley
Bereuter
Bilirakis
Bliley
Boulter
Broomfield
Bueehner
Burton
Byron
Callahan
Cardin
Chandler
Chapman
Chappell
Cheney
Clarke
Coate
Coble
Coleman (MO)
Combest
Courter
Craig
Daniel
Dannemeyer
Darden
Daub
de la Garza
DeLay
DeWine
Dickinson
DioGuardi
Dornan (CA)
Dreier
Edwards (OK)
Emerson
English
Pawell
Fields
Pah
Flippo
Poglietta -
Ford (TN)
Frenzel
Gallegly
Gallo
Gekss
Gingrich
Goodling
Grafton
Grant
Green
Gregg
Gunderson
Hall (OH)
Ball (TX)
Hamilton
Hammerschmidt
Ackerman
Akeks
Alexander
Annunzio
Anthony
Applegate
Atkins
AuCoin
Bates k
BeBenson
Berman
Bevill
Thy
Boehlert
Boggs
Bo/and
Bonior
Honker
Berski
Boma
Boucher
Boxer
Moll No. 4087
AYES-210
HOUSE H 9565
Hansen Pashayan
Hastert Petri
Hatcher Pickett
Hayes (LA) Pickle
Henry Porter
Hefner Price (NCI
Berger QolSan
liner Ravenel
NADROay Ray
Hopkins Regal
Horton Rhodes
Houghton Richardson
Huckaby linter
Hughes Roberts
Hunter Roe
Hutto Rogers
Hyde Rose
Inhofe Roth
Ireland Rankest&
Jenkins Rowland (GA)
Jones (NC) Saiki
Jones (TN) Saxton
Kasich Schaefer
Kolbe Seamier
Yonnyu Schuette
Kyl Schulze
Lagontersam Sensenbrenner
loacaslar Shaw
Latta Lihumway
Lent Shuster
Lewis (CA) Sisisky
Lewis (FL) Skeen
Lightfoot Slattery
Livingston Sktughter (NY)
Lloyd Slaughter (VA)
Lott Smith (NE)
Lowery (CA) Smith (NJ)
Wan Smith (TX)
Luken. Thomas Smith, Denny
Lukens, Donald (OR)
Lurstren Smith, Robert
Mack (NH)
Madigan Smith, Robert
Marlenee (OR)
Martin (IL) Snowe
Martin (NY) Solomon
Mazzoli Spence
McCandless Sweat
McCollum Stangeland
McCurdy ' Stenholm
McDade Stump
McEwen Sundquist
McGrath Sweeney
McMillan (NC) Swindell
Meyers Tauzin
Mica Taylor
Michel Thomas (CA)
Miller (OH) Thomas (GA)
Molinari Torricelli
Montgomery Upton
Moorhead Valentine
Morrison (WA) Vander Jest
Murphy Vucanovich
Myers Walker
Nelson Weber
Nichols Weldon
Nielson Whittaker
Ortiz Wolf
Oxley Wortley
Packard Wylie
Perris Young (FL)
NOES-209
Brennan
Brooks
Bruce
Bryant
Bustamante
Campbell
Carper
Can
Clay
Clinger
Coelho
Coleman (TX)
Collins
Conte
Conyers
Cooper
Coughlin
Coyne
Crockett
Davis (IL)
Davis (MI)
Dank)
Delltuns
Derrick
Did=
Dingell
Dixon
Donnelly
Dorgan (ND)
Dowdy
Downey
Durbin
Dwyer
Dynally
Dyson
Early
Eckert
Edwards (CA)
ENV
Pascell
Wain
Fazio
Pelglan
Flake
Florio
Foley
Ford (MI)
Frank
Prost
Garcia
Garios
Geldensen
Gibbons
(Ehnen-
Glickman
Gonzalez
Gordon
Grandy
Gray (IL)
Gray (PA)
Guarini
Harris
Hawkins
Hayes (IL)
Henry
Hertel
Hoehbrueetner
Hoyer
Hubbard
Jacobs
Jeffords
Johnson (CT)
Johnson (SD)
Jontz
Kanjortici
Kutereneier
Kennedy
Kennelly
Kildee
Kleczka
Kolter
Kostmayer
LaPaloe
Lantos
Leach (IA)
Lehman (CA)
Lehman (FL)
Leland
Levin (MI)
Levine (CA)
Lewis (GA)
Lipinski
Lowry (WA)
Biaggi
Brown (CA)
Brown (CO)
Crane
Duncan
MacKay
Manton
Markey
Martinez
Matsui
Mavroules
M(Closkey
McHugh
McMillen (MD)
Mime
Miller (CA)
Miller (WA)
Moakley
Mollehan
Moody
Morelia
Morrison (CD
Mreeek
Murtha
Nagle
hatcher
Neal
Nowak
Oskar
Oberstar
Obey
Olin
Owens (NY)
Panetta
Patterson
Pane
Pekoe'
Penny
Pepper
Perking
Price (IL)
Pitmen
Rattail
Rawl
Ridge
Rinakki
Robinson
Rodino
Rostenkowski
Rowland (CT)
Roybal
Russo
Sabo
Savage
Sawyer
Schneider
Schroeder
Schumer
Sharp
Maw
flikerski
MANN
Skelton
Smith (FL)
Smith (IA)
Solara
St Germain
Staggers
Stallings
Stark
Stokes
Studds
Swift
Synar
Talton
Tauke
Torres
Towns
Trafiautt
Treater
Udall
Vento
Visclosky
Vollmer
Walgren
Watkins
Waxman
Weiss
Wheat
Whitten
Matins
Wilson
Wise
Wolpe
Wyden
Yates
Yatron
Young (AK)
Dilneta
Owens (Cr)
Roemer
Stratton
NOT yarn/a-14
Gephardt
Reward
Kaptur
Korey
Leath (TX)
0 1530
The Clerk announced the following
pair:
On this vote:
Mr. Brown of Colorado for. with Ma
Kaptur against.
Messrs. DERRICK, MOR.RISON of
Connecticut, AuCOIN, HAYES of Illi-
nois, and PANETTA changed their
votes from "aye" to "no."
Messrs. ANDREWS, MOORHEAD,
nz IA GARZA, and FLIPPO changed
their votes from "no" to "aye."
So the amendment was agreed to.
The result of the vote was an-
nounced as above recorded.
ANENDIEENT ORM= DT MIs. RODICZNIA
Mrs. ROITKEMA. Mr. Chairman. I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mrs. ROUT:RNA:
Page 8, after line 13, insert the following
new subsection:
(d) Kuser/ow roe FRDERAux Rawarrnsa
FINANCIAL INSTITUTIONS.?(l) &WWI to
paragraph (3), this Act. shall not prohibit
the use of a lie detector test on employees
or prospective employees of a financial insti-
tution (as defined in section 7(4)).
(2) The exemption provided under para-
graph (1) shall not diminish an employer's
obligation to comply with?
(A) applicable State and local law, and
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H 9566 CONGRESSIONAL RECORD ? HOUSE
(8) any negotiated collective bargaining
agreement, which limit or prohibit the use
of lie detector tests on such employees.
(3) The exemption provided under this
subsection shall not apply if the results of
an analysis of lie detector charts are used as
the sole basis upon which an employee or
prospective employee is discharged, dis-
missed, disciplined in any manner, or denied
employment or promotion. Nothing in this
paragraph shall be construed to prohibit
the temporary reassignment of any employ-
ee for such period as is necessary for a
speedy and thorough investigation concern-
ing potential criminal activity which in-
volves the operations of the employer.
Page 9, line 2, strike "and".
Page 9, line 5, strike the period at the end
of such line and insert "; and".
Page 9, after line 5, add the following new
paragraph:
(4) the term "financial institution"
means?
(A) an insured bank, as defined in section
3(h) of the Federal Deposit Insurance Act
(12 U.S.C. 1813(h));
(B) an insured institution, as defined in
section 408(a)(1) of the National Housing
Act (12 U.S.C. 1730a(aX1));
(C) an insured credit union, as defined in
section 101(7) of the Federal Credit Union
Act (12 U.S.C. 1752(7)); or
(D) an exchange, broker, dealer, invest-
ment company, securities information proc-
essor, clearing agency, municipal securities
broker, municipal securities dealer, govern-
ment securities broker, or government secu-
rities dealer, as such terms are defined in
section 3(a) of the Securities Exchange Act
of 1934 (15 U.S.C. 78c(a)), or an exchange
member subject to section 15(e) of such Act
(15 U.S.C. 78o(e)).
Mrs. ROUKEMA (during, the read-
ing). Mr. Chairman, I ask unanimous
consent that the amendment be con-
sidered as read and printed in the
RECORD.
The CHAIRMAN. Is there objection
to the request of the gentlewoman
from New Jersey?
There was no objection.
Mrs. ROUKEMA. Mr. Chairman, I
offer an amendment to exempt feder-
ally insured or federally regulated fi-
nancial institutions from the bill's ban
on the use of polygraphs. This amend-
ment has the same logic and common-
sense as the previous exemptions.
As you know, last year the House
very nearly passed an exemption for
financial institutions. The amendment
failed because some felt it was too
broad?it included pawnbrokers, tele-
graph companies, and travel agencies.
I recognize these Members concern
with confining any such exemption to
those institutions which truly have a
compelling need for retaining the use
of the polygraph. Therefore, I empha-
size that I have carefully drafted my
amendment to apply only to federally
insured banks and financial institu-
tions and stock exchanges and invest-
ment companies regulated pursuant to
the Securities Exchange Act.
American financial institutions
handle an enormous amount of cash
and securities every day, with many
employees?from the lowest clerk to
the highest executive?having access
to these funds. Unfortunately, losses
from internal fraud and embezzlement
are enormous. According to the FBI,
over $1.1 billion was lost by banks, sav-
ings and loans, and credit unions last
year. The sad fact is that over 80 per-
cent of these losses have been attrib-
uted to employee theft. Employees, in
fact, are responsible for greater losses
than all robberies, burglaries, and lar-
cenies combined. What's worse, these
losses have greatly increased in the
last few years. In 1981, the losses to-
taled less than $200 million; by 1986,
they shot up to over a billion dollars.
With such an alarming trend taking
place, it would be totally irresponsible
for us to prohibit the use of a tool
which helps detect embezzlers, par-
ticularly when you realize that today's
computerized operations make it possi-
ble to divert millions of dollars in an
instant if the confidentiality of com-
puter codes is compromised.
These are the exact reasons why fi-
nancial institutions are highly regulat-
ed by the Federal Government. Let me
give you some examples of the exten-
sive regulation.
The Bank Protection Act of 1968 re-
quires the establishment of compre-
hensive security programs.
The Federal Deposit Insurance Act
prohibits federally insured banks from
employing anyone convicted of "any
criminal offense involving dishonesty
or a breach of trust" without first ob-
taining the written approval of the
FDIC.
SEC regulations require fingerprint-
ing of securities industry personnel to
help identify people with criminal
records.
Other Federal laws and regulations
require the investigation of suspected
thefts, embezzlements, unexplained
shortages of funds, and so forth. Find-
ings must be reported to the Federal
Reserve, Comptroller of the Currency,
or FDIC. Reports must also be made
to the FBI and other law enforcement
agencies.
I ask you: How can the Federal Gov-
ernment on the one hand place such
stringent duties and requirements on
financial institutions, and on the other
hand prohibit the use of one of the
methods of carrying out these require-
ments?
For these reasons the Chairman of
the Securities and Exchange Commis-
sion has written a letter of support for
this amendment.
For these reasons the Chairman of
the Federal Deposit Insurance Corpo-
ration has written a letter of support
for this amendment.
I know many of you are concerned
about the validity of polygraph exams.
You are reluctant to exempt specific
industries because of the basic ques-
tion of whether or not polygraphs are
valid indicators of honesty. I point
out, however, that often in the law we
use a balancing test. We recognize that
the need for something is so great that
we use the best helpful means at our
disposal, even though it may not be
perfect. Such a balancing test has al-
ready been recognized by the sponsors
November 4, 1987
of this bill because exemptions have
been included for all State, local, and
Federal Government employers and
for defense and FBI contractors. Fi-
nancial institutions similarly have a
compelling need to use the polygraph
In certain situations. With the events
occurring in the stock market in the
last few weeks, this is no time to enact
any laws which could raise the least
doubts about the securities industry or
other financial institutions.
I urge your support.
0 1545
Mr. WYLIE. Mr. Chairman, I move
to strike the last word, and I rise in
support of the amendment.
(Mr. WYLIE asked and was given
permission to revise and extend this
remarks.)
Mr. WYLIE. Mr. Chairman, I am
glad to rise in support of the amend-
ment offered by my colleague from
New Jersey, Mrs. ROIIKEMA. This
amendment which would exempt fi-
nancial institutions from H.R. 1212's
ban on the use of polygraph tests is an
appropriate measure to protect the in-
tegrity of savings, lending, and trading
Institutions that are at the heart of
our economy.
Through membership on the Bank-
ing Committee I have learned that em-
ployees of banks and other securities
houses handle enormous amounts of
cash and other valuable items each
day and that there are many possibili-
ties ?for fraud, embezzlement and
theft. Just a few statistics show the
scope of the problem.
The FBI estimates that banks, sav-
ings and loan, and credit unions lost
more than $1.1 billion in 1986 through
employee losses from banks, savings
and loan, and credit unions. Losses at-
tributable to employees are greater
than losses caused by robberies, bur-
glaries, and larcenies. In fact, the dif-
ference is overwhelming. Over 80 per-
cent of the losses that these financial
Institutions suffered were the result of
employee theft.
As the gentleman from Kansas men-
tioned a little earlier, we are deciding
here where and when the polygraph
test is appropriate. The ability to use
all available screening and investiga-
tive tools is critical to maintaining se-
curity at financial institutions.
As Mrs. ROIIKEDIA mentioned a little
earlier, both the Chairman of the
FDIC, Mr. Seidman and the Chairman
of the SEC, Mr. Ruder, have recog-
nized the importance of employee
theft and have stated their support for
an exemption that would allow finan-
cial institutions to use the polygraph.
We considered and almost passed a
similar amendment last year. The
problem with the amendment that was
offered last year was that it was too
broad; it would have granted exemp-
tions to travel agents and pawn bro-
kers among others. These businesses
are not federally insured and they are
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November 4, 1987 CONGRESSIONAL RECORD ? HOUSE
not federally regulated like banks and
other savings institutions.
This amendment is much more care-
fully drawn and narrowly drafted.
There is a Federal nexus here. The
amendment covers only financial insti-
tutions insured under Federal law or
regulated under the Securities and Ex-
change Act.
I was once a prosecuting attorney
myself and I can tell you that a poly-
graph test can be useful in helping
solve mime. I believe that use of the
polygraph test can be an important
and proper security measure and can
be used as an ounce of prevention in
these cases. So I enthusiastically sup-
port the amendment and urge an
"aye" vote on the amendment.
Mr. BARNARD. Mr. Chairman, will
the gentleman yield?
Mr. WYLIE. I yield to the gentle-
man from Georgia.
Mr. BARNARD. I thank the gentle-
man for yielding.
Mr. Chairman, I rise in support of
the amendment offered by my col-
league from New Jersey allowing fi-
nancial institutions to continue to uti-
lize polygraph examinations as one
tool in their continued fight against
white collar crime, crime which all too
often places a heavy burden on the
safety and soundness of our Nation's
financial institutions when they can
least afford it.
Since 1984, the subcommittee which
I chair has held extensive hearings on
Insider abuse and criminal misconduct
in financial institutions and found
that losses from fraud and other crimi-
nal activities have amounted to bil-
lions of dollars. Many of these losses
occur at smaller institutions which are
the least able to afford them and
which can suffer the greatest impact.
In 1986, over one-third of the 138 bank
failures that occured were due to
fraud and embezzlement, according to
FBI statistics. These losses occur at
the upper management levels and are
not by any means confined to lower
echelon employees. Polygraphs are
needed for all levels of employment in
the financial services industry. In
many of the fraud cases, a polygre.pyh
exam would have indicated the need
for further research of a person's
background.
The Roukema amendment is nar-
rowly drawn and consistent with the
exemptions already included in the
bill for various governmental agencies
and private companies that are nation-
al security contractors. No industry
has a higher fiduciary responsibility
than our federally insured financial
Institutions. I urge my colleagues to
support the amendment and the avail-
ability of polygraphs as one arrow in
the quiver of defenses against criminal
misconduct in our financial services in-
dustry.
Mr. WYLIE. I thank the gentleman
for his contribution.
Financial institutions do occupy a
very special place in our economy.
Banks do have the responsibility to
maintain appropriate security and I
think this very carefully, well-drawn
amendment will help them with that
charge.
Mr. Chairman, I yield back the bal-
ance of my time.
Mr. McCANDLESiii. Mr. Chairman, I
move to strike the requisite number of
words and I rise in support of the
amendment.
Mr. Chairman, as a member of the
Banking Committee, I support the
gentlewoman from New Jersey's im-
portant amendment to create an ex-
emption for financial institutions such
as banks, savings and loan, and the se-
curity industry. I rise in support of
this measure because the financial in-
stitutions protected by the amend-
ment are a distinct part of our econo-
my.
Deposits at banks, savings and loan,
and credit unions are insured by the
Federal Government. Losses at these
Institutions are therefore costly to the
Federal Government. That is why the
Government imposes security require-
ments on savings institutions. The se-
curity requirements are strict and ex-
acting. To comply with Federal regula-
tions, a great many savings institu-
tions use the polygraph as one impor-
tant element in their overall security
program.
Similarly, the securities industry is
heavily regulated by the Federal Gov-
ernment. For instance, securities firms
are prohibited from hiring anyone
who has a felony conviction. There-
fore, securities firms find that the
polygraph is a useful tool in complying
with Federal Law.
In light of the Federal regulatory re-
quirements on financial institutions, it
Is particularly noteworthy that the
heads of the principal regulatory
agencies, the FDIC and the SEC, have
written to the Members of the House
expressing their support for the Rou-
kema amendment to exempt financial
Institutions from H.R. 1212.
In the final analysis, for the Govern-
ment to require security programs at
financial institutions, and then take
away those institutions' ability to use
a vital security tool would be nonsensi-
cal. For this reason, I strongly support
the amendment under consideration,
and I urge you to join me.
Mr. MILLER of Washington. Mr.
Chairman, I move to strike the requi-
site number of words.
(Mr. MILLER of Washington asked
and was given permission to revise and
extend his remarks.)
Mr. MILLER of Washington. Mr.
Chairman, as a cosponsor of H.R.
1212, I hope that we do not amend this
bill to death.
Let us remember the polygraph ma-
chine does not measure mendacity, it
measures stress. The wildly misnamed
lie detector cannot detect lies or for
that matter the truth. Yet there are
those who argue that the jobs, reputa-
tions, and integrity of thousands of
truthful Americans workers should
9567
depend on the outcome of these stress
tests. ?
Mr. Chairman, courts of law in this
country protect criminal defendants
from taking these tests. Yet there are
those who would compel thousands of
law abiding American workers to
submit to these discredited proceed-
ings.
Finally, Mr. Chairman, every Ameri-
can enjoys constitutional protection
from self-Incrimination and arbitrary
searches and seizures devoid of proba-
ble cause. Yet there are those who
would play with this most basic consti-
tutional right to privacy in order to
use a pseudo technology only slightly
more accurate in assessing truth than
a Ouija board.
I urge my colleagues to support the
passage of H.R. 1212.
Mr. PERKINS. Mr. Chairman, I
move to strike the requisite number of
words.
Mr. Chairman, this entire discussion
today strikes me as pretty ludicrous.
The question is: Do polygraphs, do lie
detectors work or not? They do not
work.
I was an attorney in the real world
for a period of time. Some people here
have had that same experience.
I was a criminal attorney. I had
people who dealt with things like
murder, arson, drugs, kidnaping; you
name it, at one time or another I prob-
ably either defended or prosecuted
them in some fashion or another.
The question became time and time
again what happened if they took the
lie detector test?
Let me tell you, the people that took
the lie detector test, those guys, those
people were smooth, they were able to
stand there with steel nerves and lie,
control their breathing. They got
through the thing.
Time and time again I would see the
police drop the case on the outcome of
what happened with that lie detector
test and then they would come back
later and say, "Yeah, I did it."
0 1605
What we are talking about with this
entire exercise is a stress test. We are
talking about whether or not you can
handle that stress test or not. We are
not talking about a lie detector test.
That is a misnomer. So this entire ex-
ercise we are going through today is
just a complete exercise in futility.
Mr. GUNDERSON. Mr. Chairman,
will the gentleman yield?
Mr. PERKINS. I yield to the gentle-
man from Wisconsin.
Mr. GUNDERSON. Mr. Chairman, I
appreciate my good friend, the gentle-
man from Kentucky, yielding to me.
Mr. Chairman, I am just curious
about this. If the lie detector never
works, why did the gentleman vote in
the majority when we created a per-
manent polygraph program for nation-
al defense agencies?
Mr. PERKINS. I take no issue at all
with that, and quite frankly, if I voted
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H 9568 CONGRESSIONAL RECORD ? HOUSE
that way, I made a big mistake. I will
stand here and tell that to the gentle-
man.
Mr. 017NDERSON. Mr. Chairman,
will the gentleman yield again?
Mr. PERKINS. I will yield further
to the gentleman, and I hope the gen-
tleman extends the same courtesy to
me when my time expires.
Mr. GUNDERSON. I will get more
time for the gentleman.
Mr. PERKINS. All right.
Mr. GUNDERSON. Why did the
gentleman on June 16 of this year vote
with the majority again when an
amendment was offered by the gentle-
man from Florida (Mx. MICA] dealing
with the Department of State authori-
zation bill to allow the use of the poly-
graph and other means of investiga-
tion for embassy and diplomatic secu-
rity? If this machine is so bad, why did
the gentleman vote for that? Anybody
can make s. mistake once, but twice
the gentleman voted for it. Why?
Mr. PERKINS. Let me tell the gen-
tleman that the machine does not
work.
Mr. GUNDERSON. But I ask, why?
Mr. PERKINS. The gentleman can
read idiosyncrasies in my record, and I
can say that I make mistakes. But the
fact of the matter is that the machine
does not work. Consistently, when you
look and see the results of the tests,
you will find the machine does not
work.
I saw these clients who would come
in and literally stand there and tell me
they committed the crime, and the
police just did not even bother to con-
tinue afterwards with the investiga-
tions, after they got off, because the
police relied on this test.
This test is an excuse for laziness. It
Is an excuse for not investigating and
not paying any attention to the results
and really do some more investigation.
This entire series of amendments, in
my opinion is a farce. The bill is an ex-
cellent bill because it says this is a
farce. We cannot allow this as a divin-
ing rod, and that is what we are talk-
ing bout, a divining rod. That is the
entire situation.
Mr. MARTINEZ. Mr. Chairman, will
the gentleman yield?
Mr. PERKINS. I am pleased to yield
to the gentleman from California.
Mr. MARTINEZ. Mr. Chairman.
what I hear the gentleman saying is so
evident, if we would really listen to
what we have all said. Nobody has said
that this machine is a perfect machine
other than in measuring nerves and
stress. The problem is that there is
that human factor the gentleman is
talking about.
The gentleman made a mistake in
the way he voted, and he admits it,
but the polygrapher never admits
when he makes a mistake because he
always says the machine said so and
the machine is a perfect tool because
the machine is infallible. But where
the machine may not be infallible in
Its readings, he is infallible because he
Is trained to read the results of that,
and most polygraphers do not have
either the training or the background
in psychiatry or anything else to un-
derstand the emotions of the person
they are testing.
This country does not have stand-
ards for polygraphers, and the Darden
amendment would not create those
kinds of standards that require poly-
graphers to be trained or educated and
have the background to do that kind
of a job that needs to be done in evalu-
ating what that person is going
through under the polygraph.
So where you and I are human and
make mistakes and we can admit it,
the polygrapher, because he depends
on that machine, does not do it; is that
not right?
Mr. PERKINS. I am sure that I
agree with my colleague.
Mr. Chairman, I would like to say
this in closing because I realize a lot of
Members want to continue in this ex-
ercise in futility.
The CHAIRMAN. The time of the
gentleman from Kentucky (Mr. Part-
km] has expired.
(By unanimous consent, Mr. PER-
KINS was allowed to proceed for 2 addi-
tional minutes.)
Mr. PERKINS. Mr. Chairman, this
is, as I say, an exercise in futility. If
we want to impinge on the American
public with a divining rod and go in
and try to take away constitutional
rights based on the flip of a coin, we
can go ahead and do it. We have the
ability to do it by passing these
amendments here today.
But if we want to use legitimate in-
vestigation techniques, we could get
out and do some hard work, we could
get out and find some good evidence as
to whether or not this person should
be hired in a particular industry or not
and find some good evidence as to
whether this person is an individual
we would want working for us or not.
Let us not rely on the flip of a coin.
The machine does not work, and it is
not admitted in any criminal court in
this country. It is ridiculous. I ask the
Members to vote against all these
amendments. Let us pass the bill and
give the American people some protec-
tion here. That is what we need.
Mr. McCOLLUM. Mr. Chairman, I
move to strike the requisite number of
words, and I rise in support of the
amendment.
(Mr. McCOLLUM asked and was given
permission to revise and extend his re-
marks.)
Mr. McCOLLUM. Mr. Chairman, I
have listened to a lot of this debate
and participated in part of it this
afternoon, and I do not think any of
us who advocate some exceptions to
this bill believe that the polygraph is a
perfect machine. We do not believe
that the system is going to be error-
less, and we do not think the way it is
conducted in the cases around the
country today is always right. But the
fact is that it is, by the testimony of
those who are experts in this?at least
a good number of them that I have
November 4, 1987
read?something that, 80 percent of
the time, 90 or 70 percent of the time,
is right and is accurate, and if you do
have a good polygraph test giver, a
polygraph machine expert, you can
produce results for screening and pre-
screening of employment applications
that will aid, not give a definitive
answer but aid the person making em-
ployment decisions in making that de-
cision.
I think the question is not one of
whether or not we totally do away
with the polygraph examination, but
what areas do we limit it to. That is
what this legislation is all about. What
restrictions do we place on it? What
areas do we limit it to?
It was already decided when this bill
came forward that the Defense De-
partment and the national security
areas of our country were still going to
be able to use this machine. I think if
this body had determined that this
machine was obsolutely not valuable
in any way, we would not have even
agreed to that. Though some do not
agree with it and there are isolated in-
stances of those speaking today who
do not think We ought to have it at all,
I think the body has made that deci-
sion. The body has also, I think, decid-
ed that there are other exceptions.
We just did one a few minutes ago.
It was a close vote, but it was some-
thing we decided in the last Congress
and we decided it this time, that in the
case of security guards and armored
personnel guards, those who carry
money and are involved in guarding
private businesses, we ought to screen
those applicants or at least allow the
polygraph to be used by those who
screen applicants and make employ-
ment decisions.
So the issue here is on the amend-
ment offered by the gentlewoman
from New Jersey [Mrs. Rotrkzara] as
to whether or not we should give this
same exemption that we just gave to
the security guards to the banks, the
savings and loans, the credit unions,
and some security industry folks. That
is a question of judgment, a question
of balance and reasonableness on
whether or not we want to make this
Particular exception. It is not a ques-
tion of whether the polygraph works
or does not work. It is not a question
either of whether or not somebody is
harassed or whether there can be
abuse, because indeed there can be,
and there ought to be restrictions and
limitations and guidelines, maybe
more than those that are here. Many
of us have argued for those. The ques-
tion, though, now that we ought to ad-
dress ourselves, it seems to me, is,
should we grant this exemption to the
banking community, to the financial
services community, as narrowly de-
fined?
I offered an amendment similar to
this a Congress ago. It was broader. It
was defeated by about 10 votes. It
seems to me the complaints made by a
few Members about that ought to
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CONGRESSIONAL RECORD ? HOUSE H 9569
bring them aboard, and we ought to
pass this amendment.
The fact is that the money that we
are concerned about being embezzled
or taken away by the push of a button
in this electronic world of banking
today is not the banks' money. It is my
money, it is your money, it is the
money of the constituents of every
Member of this body. We are the
people and our constituents are the
people who deposit our funds in the
banks of this country, in the savings
and loans, in the credit unions, and
with the securities industry people,
and we are the ones as a whole, the
whole public, that have to be worried
that somebody is going to go out and
take this money by the push of a
button somewhere.
I submit to my colleagues that we
have a paramount fidicuiary duty in
this case as Congressmen and Con-
gresswoman to pass this exception to
allow this tool to be one more of a
number used by those in employment,
making decisions in the financial serv-
ices area so they can have the oppor-
tunity of making better decisions on
which 10 out of 100 people who apply
for a banking job are going to be
hired. This will not necessarily be the
deciding criteria, but it ought to be a
tool available if we are going to get
some of this fraud out of the industry.
Let me make one other point. In the
banking world today, unfortunately,
there is another great abuse that some
employees take of our money system,
and we all too well know about this if
we think about if for a minute. That is
in the area of drug trafficking and
money laundering. We passed a major
drug trafficking bill last year, trying
to get at that tremendous problem for
our citizenry. As part of that, we
passed a bill dealing with the new
crime of money laundering. That
cannot possibly be enforced or it
cannot work if we do not have a
system of screening out the people in
the financial services institutions who
might be prone to be involved in the
shady transactions that are involved
in the process of hiding their sources
of crime and money dealing in drugs.
I submit to my colleagues, if we
really want to fight drug trafficking,
we have got to get at it in a number of
ways, and one of the key ways is to
stop money laundering.
The CHAIRMAN. The time of the
gentleman from Florida [Mr. McCoL-
Luatt] has expired.
(By unanimous consent, Mr. McCOL-
LUM was allowed to proceed by 2 addi-
tional minutes.)
Mr. McCOLLUM. Mr. Chairman, if
we are going to be effective in fighting
the war on drugs, it requires that we
have at our disposal not only the law
on the books to make something a
crime but the ability on the part of
those who are managing our financial
Institutions to screen out those who
might become employees who would
push those computer buttons around
to aid and abet the criminal element
who would like to pass millions of dol-
lars through our institutions in vari-
ous ways, although we have now
passed laws saying that they should
not. In other words, we are not going
to catch all those people simply be-
cause we have a law on the books. We
have got to have honest people at the
teller window, we have got to have
honest people dealing with the funds,
and its seems to me it makes no sense
to pass a bill like this one and pass an
exception to it that says the guard
who is transporting the money be-
tween two banks is going to be
exempt, or the employer of that guard
is exempt, but the teller or the person
at the computer desk or the computer
station may not be someone the em-
ployer has screened as well. That
makes no sense to me at all if we are
going to protect the financial interests
of our citizenry.
Mrs. ROUKEMA. Mr. Chairman,
will the gentleman yield?
Mr. McCOLLUM. I am glad to yield
to my colleague, the gentlewoman
from New Jersey.
Mrs. ROUKEMA. Mr. Chairman, I
thank the gentleman for yielding to
me.
I wanted to commend the gentleman
from Florida [Mr. McComma], a dis-
tinguished member of the Committee
on Banking, Finance and Urban Af-
fairs, and one who worked very hard
on this amendment last year.
The gentleman alluded to a point
that should be stressed for the Mem-
bers, and it is a compelling reason for
passing this amendment. The gentle-
man alluded to the fact that we are
talking about banks that have federal-
ly insured deposits. This is full faith
and credit of the U.S. Government,
and ultimately it may actually back up
to the taxpayers.
This is a compelling reason why this
is a legitimate inclusion in this bill.
Second, the Security Exchange Act
controls here. We have highly regulat-
ed institutions, and they should be
under the provisions of this act and
should be given all the tools they
need.
Mr. McCOLLUM. The gentlewom-
an's amendment to exclude certain
banks, financial institutions, certain
securities outfits needs to be passed, if
we are going to have a truly fair bill to
protect the interests of the American
deposit holder in our banking institu-
tions.
Mr. MARTINEZ. Mr. Chairman, I
move to strike the requisite number of
words.
I doubt very much that the banking
Institution is going to change its way
of doing business or reduce any of its
losses that take place because of poly-
graphing employees.
The banking institution has ade-
quate measures now to screen employ-
ees, test employees for employment
there.
I have had family members who
have worked for the banks, and I have
some familiarity with their procedures
for hiring. I do not think they really
need the polygraph. It will not do any-
thing for them.
The kind of abuse that the gentle-
man from Florida is concerned about
is taking place at a higher level, and
where those people are able to make a
decision whether they would use poly-
graphs on that level of employee or
not, and I doubt very much if they
would, if they are going to be nefari-
ous about their business operations
and contemplate anything that would
be illegal. That is a moot point.
It gets back down to the basic thing
we have been arguing. Is there enough
margin of error in the procedure that
It merits penalizing people in applying
for employment, and does it merit in-
vading people's rights?
Does it merit violating civil rights,
people having to prove themselves in-
nocent when they have not been ac-
cused of a crime, and all of the things
we have argued, and we are beginning
to get redundant on?
I urge the Members to oppose the
amendment.
Mr. PARRIS. Mr. Chairman, I move
to strike the requisite number of
words.
(Mr. PARRIS asked and was given
permission to revise and extend his re-
marks.)
Mr. PARRIS. Mr. Chairman, I want
to take this time to congratulate the
gentlewoman from New Jersey on her
amendment.
It is very carefully drawn and is an
important improvement and a contri-
bution to this legislation.
Let me quickly reiterate that this
measure would exempt federally in-
sured banks, credit unions, and securi-
ties firms regulated by the Securities
and Exchange Commission from this
legislation. It does not preempt local
or State law on the use of these kinds
of tests, and cannot be used as the sole
basis for an employment decision; but
it is and should be an important tool
in that process.
Let me ask the Members to use a
little common sense here. The famous
bank robber, Willie Sutton, when
asked, why do you rob banks? An-
swered: "Because that is where the
money is."
Where do you suppose the money is
in our society? Where do you suppose
the people that are inclined to steal
money from an institution will find it?
In an insured bank or other financial
institution in this Nation is where.
They have the opportunity to make
enormous impacts on not just the
system itself but on individual deposi-
tors financial assets, so I suggest to
the Members, what more logical place
to use a lie detector test than in an in-
stitution where there are huge
amounts of cash laying around all over
the place, with an opportunity for a
person criminally inclined to take ad-
vantage of that fact.
They do not make nuts and bolts in
banks. They deal with money, and
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CONGRESSIONAL RECORD ? HOUSE November 4, 1.987
they ought to be able to use polygraph
tests to determine whether or not as
an element of an employment deci-
sion. this or that applicant for employ-
ment is the kind of person that ought
to be given the opportunity to be, in
that environment, and to be exposed
to that situation.
I would simply emphasize for this in-
dustry particularly, this exemption is
a very good idea. It deserves our sup-
port.
I hope the Members will support it.
Mr. WILLIAMS. Mr. Chairman. I
move to strike the requisite number of
words.
Mr. Chairman. are we all in favor of
honest bank and financial institution
employees? Of course, we are.
The question before the Members is,
how do we achieve that. I do not think
we achieve it by making it convenient
and quick for the banks to hire people,
and financial institutions to hire
people without going through a good
personnel security check.
Why does American businesses want
to use the lie detector? It cannot be
because the scientific evidence is there
that it works, because it is not. It is be-
cause it is convenient..
It is easier to use the lie detector
than it is to raise the wage, minimum
wage, or create a good personnel de-
partment to really do a good personnel
check on the bank tellers.
Lie-detector gadgets are not going to
improve security fraud and bank theft,
because we have them now in the
United States.
The banks use them now, and the
banks tell us, some of them at least,
that they are hemorrhaging because
of illegal acts of some of their employ-
ees.
This is when they use the lie-detec-
tor gadget. It does not work. Maybe
the banks are just looking in the
wrong place.
Our Department of Justice indicates
they are. The research arm of the De-
partment of Justice called the Nation-
al Institute of Justice estimates that
here is the reason there is a hemor-
rhage from banks and other financial
institutions in the United States, be-
cause of security fraud, corporate kick-
back, and insurance fraud estimated
by the Department of Justice to be
three times the loss than is employee
pilferage.
Corporate kickbacks, insurance
fraud, securities fraud being conduct-
ed not by bank tellers, the people that
are going to have to take these tests,
but being conducted illegally by the
captains of this industry. That Is our
problem on Wall Street.
That is our problem in the financial
Institutions of this country; and while
the gentlewoman's amendment allows
the presidents of these financial insti-
tutions to be strapped in and the box
plugged in, how many of the Members
believe that they are going to be
strapped in? How many? How many
people does this amendment include?
The hest estimates I can get say that
it includes a lot more than we might
originally anticipate.
I am told by folks over at the Con-
gressional Research Service who tried
to count it for me, that if this amend-
ment passes, it is going to include
3,152,000's of people who could be
made susceptible to this gadget.
Does it affect credit unions? Sure.
When we get off the subway down
here, we are liable to go past a long
line of our employees in the Wright
Patman Federal Credit Union who are
lining up to take the lie detector teat,
sure, because they are going to be sub-
jected to this, and so are people who
are called securities information proc-
essors.
I did not know what security infor-
mation processors were, so I checked
the law.
A securities information processor
means any person engaged in the busi-
ness of, first, collecting, processing, or
preparing for distribution or publica-
tion, or assisting, participating in or
coordinating the distribution or publi-
cation of information with respect to
transactions in or quotations from any
security, or distributing or publishing,
whether by means of tickertape or any
other communications network on a
current and continuing basis, inforzna-
tion with respect to such transaction
or quotations.
Probably most of the Members lis-
tening to that are. as I am, somewhat
confused by what it means; but it obvi-
ously includes thousands of people
who are involved in the distribution of
or publication of information about
quotations or securities.
The amendment also covers clearing
agencies.
The CHAIRMAN. The time of the
gentleman from Montana (Mr. Wu.-
Lulus] has expired.
(By unanimous consent, Mr. WIL-
LIAMS was allowed to proceed for 2 ad-
ditional minutes.)
Mr. WILLIAMS. When you check to
see what clearing agencies are, clear-
ing agencies mean any person who
acts as an intermediary in making pay-
ments or deliveries or both in connec-
tion with transactions in securities or
who provides facilities for comparison
of the data respecting the terms of set-
tlement of securities transactions, and
It goes on.
The point is that you can drive the
financial community of the United
States through the loophole being cre-
ated by this bill.
Again, do we want honesty in the fi-
nancial institutions of the United
States? Yes. Are we going to get it
with this outdated, timeworn, unscien-
tific device called a lie detector
gadget? No. That is not how we are
going to get it, and I urge the Mem-
bers to oppose this amendment.
Mr. GUNDERSON. Mr. Chairman. I
move to strike the requisite number of
words.
(Mr. GUNDERSON asked and was
given permission to revise and extend
his remarks.)
Mr. GUNDERSON. Mr. Chairman,
listening to the gentleman from Mon-
tana, the next thing we are going to do
is outlaw in this country any kind of a
preemployment interview, because
they are unscientific.
The gentlewoman from New Jersey
Is suggesting here that a polygraph
cannot be the sole determinant of
whether you hire someone or whether
you do not hire them. That is very
clear.
I would suggest that, if anything,
this is going to almost be an advantage
to an applicant for work in the finan-
cial industries. This says that if you
require the use of a polygraph, then
comprehensive consideration of that
application is also required. And do
not forget: it is the gentleman from
Montana who has imposed in this bill
a fine of up to $10,000 for a violation.
Do the Members think any bank,
any financial institution in this coun-
try is going to turn around and some-
how slap a polygraph test on someone,
use that as the sole determinant, say
no to hiring them with the full knowl-
edge that if that person goes out and
sues, they will be fined UP to 610,000?
Let us use a little common sense and
recognise what we are dealing with in
this amendment. Then the gentleman
from Montana says that if this amend-
ment is approved, we will open it up to
some 3,152,000 potential employees
who will be subject to the polygraph.
Now, come on.
The facts are, and we all agree, that
there are no more than at the maxi-
mum 2 million tests conducted per
year. Let us use a little common sense.
We are also aware of the fact, and
every one of the Members can go to
any local financial institution in their
district and be reassured, that when
employers are not about to spend any-
where from $75 to $125 just to man-
date that every one of these people,
whether it be tellers or clerical em-
ployees, has to take a polygraph test,
especially in light of the other require-
ments of the bill which would suggest
that if they give them a Polygraph,
they must be fully prepared to prove
that that is not the sole determinant
for an employment action.
1630
I mean, it is almost like if you use
the polygraph test, you better hire me,
because if you do not, you are prob-
ably going to have to pay at least half
my annual wages in a penalty to the
Federal Government for not hiring me
because it may be the sole determi-
nant for your action.
I really call upon my colleagues. The
one thing the American people ask of
us when we come here is not be Demo-
crat, not be Republican, not. be liberal,
not be conservative. They say, "For
gosh sakes, can you please go to Wash-
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CONGRESSIONAL RECORD ? HOUSE H 9571
ington and use a little common sense
in government?"
I think that is what this amendment
Is all about. I hope we support it.
Mr. ST GERMAIN. Mr. Chairman, I
move to strike the requisite number of
words.
(Mr. ST GERMAIN asked and was
given permission to proceed for an ad-
ditional 2 minutes.)
The CHAIRMAN. The gentleman
from Rhode Island is recognized for a
total of 7 minutes.
(Mr. ST GERMAIN asked and was
given permission to revise and extend
his remarks.)
Mr. ST GERMAIN. Mr. Chairman, I
rise in opposition to the amendment of
the gentlewoman from New Jersey.
As chairman of the Committee on
Banking, there is not a soul in this
House that I will take a back seat to
when it comes to discussing the rea-
sons for bank failures, fraud, embez-
zlement.
Money laundering?my God, I am
one who is responsible for the legisla-
tion that requires reporting of transac-
tions of over $10,000 and of the
amendments thereto in the recent
past. I take a back seat to no one.
I will tell you right now, a polygraph
test will do nothing about money laun-
dering.
Mr. Chairman, the amendment we
are considering would deny workers
employed by financial institutions the
protections contained in this bill.
As a result, every person employed
by a financial institution?and, I
might add, that is a term which is
quite broadly defined?would be ac-
corded a lesser degree of personal pri-
vacy and a greater presumption of
complicity than other workers.
The amendment suffers a fatal flaw
in that it makes no distinction be-
tween a bank president, whose actions
can and have threatened the safety.
and in some instances brought about
the collapse of an entire institution,
and an underpaid janitor or reception-
ist or a clerk-typist.
Over the past few years, the Bank-
ing Committee has conducted exhaus-
tive hearings into the causes of the
failure of a financial institution. Cer-
tainly economic factors such as the
downturn in the agricultural and
energy sectors have been a major
cause.
Just as important have been insider
abuse and mismanagement?some-
times criminal mismanagement. How-
ever, nowhere in our hearings did we
find that polygraph testing of employ-
ees would have reduced bank failures
or reduced losses suffered by our de-
posit insurance fund.
In the case of financial institutions,
we would simply be fooling ourselves if
we make bank employees the scape-
goat.
Instead, banks and other financial
institutions must initiate greater inter-
nal control, if needed, and Federal and
State regulators must use the powers
Congress and State legislatures have
given them to protect our Nation's fi-
nancial institutions.
The bill before us today provides
prudent exceptions which I support.
In matters involving national security
or in instances such as nuclear science,
where the potential for disaster is
great, balancing the public good
against the privacy of an employee, it
Is clear that the potential risks to the
public far outweigh the potential
damage to an individual.
However, the proponents of this
amendment have not made a case that
employees of a credit union, for exam-
ple, many of whom are volunteers,
mind you, they serve without pay,
have any greater propensity for com-
rnittting a crime than any other
person. Nor have they been able to
prove that any crime committed in a
credit union by such as employee
would be likely to have cataclysmic
consequences.
I understand the concern of the gen-
tlewoman from New Jersey, but I be-
lieve she has not provided sufficient
justification to subject one class of
workers to a lesser degree of personal
freedom and privacy simply because
they work for financial institutions.
Nothing whatsoever has been shown
that suggest that employees of finan-
cial institutions have any greater op-
portunity for crime, or a greater dispo-
sition to commit crimes.
Nor has it been shown that bank
crime so threatens the public good
that we must treat all bank employees
as second-class citizens and deny them
their right to privacy, due process and
the presumption of innocence.
For these reasons I must oppose an
amendment which would deny people
an opportunity for employment or
perhaps ruin a career based upon a
polygraph's reading, and as has been
stated here today, that is of very ques-
tionable value.
Mr. Chairman, the problem with
money laundering and banks that
were fined by the Department of Jus-
tice was because that the principals,
the executives in these financial insti-
tutions, did not communicate to the
employees what their duties and re-
sponsibilities were under the reporting
requirements of legislation designed to
protect our institutions from being
used as laundromats for drug traffick-
ers.
Again I repeat, Mr. Chairman, I take
a back seat to no one on that one, be-
cause I have been in the forefront of
that fight throughout.
Mr. Seidman wrote in support of the
amendment, frankly, what he should
do is upgrade the supervision and reg-
ulation of financial institutions, rather
than talk about polygraph testing if
he wants to save money for the insur-
ing fund.
I will tell you, after my hearings,
there is a lot of room for improvement
there.
Now, let me finish by saying this. If
polygraph testing is so good, so effi-
cient, so wonderful in the area of fi-
nancial institutions, how come over a
billion dollars, we were told earlier in
this debate, was lost by employee
fraud and embezzlement?
The CHAIRMAN. The time of the
gentleman from Rhode Island has ex-
pired.
(By unanimous consent, Mr. Sr GER-
MAIN was allowed to proceed for 1 ad-
ditional minute.)
Mr. ST GERMAIN. Frankly, Mr.
Chairman, the polygraph has not done
much good, has it?
I really do not think that the uncer-
tainty involved and the case that has
been made for this amendment war-
rants the invasion of privacy and sub-
jecting these innocent people to a
polygraph test of questionable value.
Mrs. ROTJICEMA. Mr. Chairman, I
move to strike the requisite number of
words.
The CHAIRMAN. Without objec-
tion, the gentlewoman from New
Jersey is recognized for 5 minutes.
There was no objection.
Mrs. ROUKEMA. I do not know if
there will be other speakers, Mr.
Chairman, but in conclusion for my
part, I would like to make some final
observations on my amendment, be-
cause I think we have gone pretty far
afield from the amendment.
I would like to again clearly state
that this is an amendment that is care-
fully defined. It is not the same
amendment as was presented in the
previous Congress. It is clearly limited
to only federally insured institutions
and securities firms that are regulated
by the SEC.
It does not preempt any State or
local laws and it cannot be used as the
sole basis for an employment decision
or of demotion or of promotion or any
other kind of action on behalf of an
employee.
Finally, Mr. Chairman, I want to say
that somehow it has been intimated
here by the previous speakers that fi-
nancial institutions and banks do not
know what is in their own best inter-
ests. It has been indicated here that
banks and these institutions do not
know how to conduct their business
and that they do not know that it is
not in their best interests to properly
screen employees.
Now, I just ask my colleagues, if it is
not in their best interests to screen
their employees in many ways, includ-
ing the polygraph as one tool, then
why would they want this ability, an
expensive procedure, I might add, why
would they want the ability to go
through this expensive procedure
unless they felt it was in their own
best interests to do so?
I would suggest that these people
know what they are doing and that if
the theft numbers are mounting, and
they are alarmingly, that one should
not say therefore the polygraph has
failed. One can also say imagine how
great the problem would have been
had they not been able to use the
polygraph.
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H 9572 CONGRESSIONAL RECORD ? HOUSE
Mr. WYLIE. Mr. Chairman, will the
gentlewoman yield?
Mrs. ROUICEMA. I yield to the dis-
tinguished ranking member of the
Banking Committee, the gentleman
from Ohio.
Mr. WYLIE. Mr. Chairman, I thank
the gentlewoman again for yielding
and for her amendment.
We do not say that this is the final
word. We say that this is one more
tool in checking and recognizing that
there are certain exemptions already
included in this bill and that financial
institutions are held to a special re-
sponsibility, to a higher standard, if
you please, than some other institu-
tions in our society.
Now, it was mentioned a little while
ago that perhaps volunteer employees
of credit unions would be subjected to
a polygraph test. I doubt if there are
very many voluntary employees in
credit unions anymore, but that would
be all the more reason why would an
employee volunteer to be an employee
of a credit union? Maybe they ought
to be the ones who would be checked;
but financial institutions are required
by law to carefully screen prospective
employees and that recognizes that
certain persons with criminal records
might want to go to work in financial
institutions to take care of an expen-
sive drug habit or maybe to take care
of a gaming debt or something else.
I think this is a good amendment. Fi-
nancial institutions are required by
law to establish comprehensive securi-
ty programs. That includes their
hiring practices. This is just one more
tool it we= to me that they ought to
have.
Mrs. ROUICEMA. Mr. Chairman, I
thank the distinguished ranking
member of the Banking Committee.
I would simply conclude by saying
that I think the financial institutions'
people understand their own industry
and they understand their needs and
they are being overwhelmed by theft.
I think this will go far to help them in
dealing with their problem.
The CHAIRMAN. The question is on
the amendment offered by the gentle-
woman from New Jersey (Mrs. Roux:s-
us].
The question was taken; and the
Chairman announced that the ayes
appeared to have it.
IINCORDRD TOTE
Mr. MARTINEZ. Mr. Chairman, I
demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic
device, and there were?ayes 184, noes
237, not voting 12, as follows:
(Roll No. 4091
AYES-184
Anderson Bennett Callahan
Archer Bereuter Chandler
Anney Bilirekh Chagnon
Badham Bliley Chacsrell
Baker Dreher Chaney
Ballenger Broomfield Coats
Barnard Bueehner Coble
Bartlett Bunning Coleman (MO)
Barton Burton Combest
Bateman Byron Courter
Craig Kasich
Dannemeyer Kolbe
Darden Konnyu
Daub Kyl
de la Garza Lagomarsino
DeLay Lancaster
DeWhm Latta
Dickinson Leath (TX)
DioGuardi Lent
Dornan (CA) Lewis (CA)
Dreier Lewis (FL)
Edwards (OK) Lightfoot
D11E111011 Livingston
English
Erdreich
PaweD
Fields
Fish
Flippo
Preinsel
Gallegly
Gallo
Gekas
Gingrich
Goodling
Gordon
Gradison
Grant
Green
Gregg
Chmderson
Lott
Lowery (CA)
Laden
Luken, Donald
Lungren
Mack
blactigan
Marienee
Martin (IL)
Martin (NY)
Masson
McCandless
McCollum
/Sefton
McGrath
McMillan (NC)
Meyers
Min
Hall (OH) Michel
Hall (TX) Miller (OH)
Hanmterschmidt Molinari
Haman
Harris
Hastert
Hatcher
Hayes (LA)
Hefley
Herger
Hiler
Holloway
Hopkins
Hubbard
Huckahy
Hunter
Hutto
Hyde
Inhofe
Ireland
Jones (NC)
Jones (TN)
Ackerman
Akaka
Alexander
Andrews
Annunzio
Anthony
Applegate
Aspin
Atkins
AuCoin
Bates
Bellenson
Bentley
Hermon
Bevil'
Bilbray
Boehlert
Boggs
Boland
Bonior
Honker
Barak'
Bosco
Boucher
Boxer
Brennan
Brooks
Bruce
Bryant
Bustamante
Campbell
Cardin
Carper
Carr
Clarke
Clay
Clinger
Coelho
Coleman (TX)
Collins
Conte
Conyers
Cooper
Coughlin
Montgomery
Moorhead
Morrison (WA)
Myers
Nelson
Nichols
Oxiey
Packard
Parris
Pashayan
Pickett
Porter
Quillen
Ravenel
Ray
Regula
Rhodes
Ritter
Roberts
Rogers
Rose
Roth
Barkers&
Rowland (GA)
Salk!
Murton
Schaefer
Schuette
Schulze
Sensenbrenner
Shaw
t3humway
Shuster
Sisisky
Skeen
Slaughter (VA)
Smith (NE)
Smith (TX)
Smith, Denny
(OR)
Smith, Robert
(NH)
Smith. Robert
(OR)
Solomon
Spence
Stangelartd
Stenholm
Stratton
Stump
Sundquist
Sweeney
Swindell
Tauzin
Taylor
Thomas (CA)
Thomas (GA)
Torricelll
Upton
Valentine
Vander Jest.
Vucanovich
Walker
Weber
Weldon
Whittaker
Wolf
Wortley
Wylie
Young (FL)
NOES-337
Coyne Guarani
Crockett Hamilton
Davis (IL) Hawkins
Davis (MI) Reyes (IL)
DePasio Hefner
Delltuns Henry
Derrick Hertel
Dicks Hochbrueckner
Dingell Horton
Dixon Houghton
Donnelly Boyer
Dorgan (ND) Hughes
Dowdy Jacobs
Downey Jeffords
Durbin Jenkins
Dwyer Johnson (CT)
Dyrnally Johnson (SD)
Dyson Jonas
Early Kanlorski
Eckert lEastenineler
Edwards (CA) Kennedy
Men Kennelly
Evans Rildee
Faseell
Fazio
Feighan
Flake
Florio
Foglietta
Foley
Ford (MI)
Ford (TN)
Prank
Prost
Garcia
Gaydos
Ge?
Gibbons
Gilman
Glickman
Goosales
Grandy
Gray (IL)
Gray (PA)
Klecska
Koller
Kostmayer
Laralee
Lantos
Leach (IA)
Lehman (CA)
Lehman (FL)
Leland
Levin (MD
Levine (CA)
Lewis (GA)
Lipinski
Lloyd
Lowry (WA)
Luken, Thomas
MacKay
Manton
Markey
/tertian
Matsui
Mavroules
McCloskey
McCurdy
McDade
McHugh
McMillen (MD)
blfurne
Miller (CA)
Miller (WA)
Mineta
Moakley
Mollohan
Moody
Morella
Morrison (CT)
Iffrazek
Murphy
Murtha
Nagle
Natcher
Neal
Nielson
Nowak
Dakar
Oberstar
Obey
Olin
Ortiz
Owens (NY)
Panetta
Patterson
Pease
Pelosi
Penny
Pepper
Biaggi
Brown (CA)
Brown (CO)
Crane
November 4, .1987
Perkins
Petri
Pickle
Price (IL)
Price (NC)
Pursell
Rattail
Rangel
Richardson
Ridge
Rinaldo
Robinson
Rodino
Roe
Rostenkowski
Rowland (CT)
Roybal
Russo
Sabo
Savage
Sawyer
schemer
Schneider
Schroeder
Schumer
Sharp
Shays
Suess
Skelton
Slattery
Slaughter (NY)
Smith (PL)
Smith (IA)
Smith (NJ)
Saone
&lam
Snratt
St Gentian
Staggers
Stallings
Stark
Stokes
Studds
Swift
BYnar
Talton
Tauke
Torres
Towns
Traficant
Treater
Udall
Vento
Viselosky
Volkmer
Walmen
Watkins
Waxman
Weiss
Wheat
Whitten
Williams
Wilson
Wise
Moine
Wyden
Yates
Patron
Young (AK)
NOT VOTING-12
Daniel Kantor
Duncan Kemp
Gephardt Owens (UT)
Howard Roemer
0 1655
The Clerk announced the following
pair:
On this vote:
Mr: BROWN of Colorado for, with Ms.
lEAPTUR against.
Mr. BEREUTER and Mr. STRAT-
TON changed their votes from "no" to
"aye."
So the amendment was rejected.
The result of the vote was an-
nounced as above recorded.
AMIDIDIRENT OPFER= PT KR. RICHARDSON
Mr. RICHARDSON. Mr. Chairman,
I offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. RIcilitilDsON:
Page 8, after line 13, insert the following
new subsection:
(d) EXEMPTION MR DRIPS Szcinurr, DRUG
THEFT. on DIM DIVIDISION Invzirrios-
TION8.?This Act shall not prohibit the WM
of a lie detector test by any employer au-
thorized to manufacture, distribute, or dis-
pense a controlled substance listed in sched-
ule I, II, III, or IV pursuant to section 202 of
the Controlled Substances Act (21 U.S.C.
812) to the extent thet?
(1) such use is consistent with?
(A) applicable State and local law, and
(B) any negotiated collective bargaining
agreement
that explicitly or implicitly limits or prohib-
its the use of lie detector tests by such em-
ployer;
(2) the test is administered only to an em-
ployee who has, or a prospective employee
who would have, direct access to the manu-
facture, storage, distribution, or sale of any
such controlled substance; and
(3) the results of an analysis of lie detec-
tor charts are not used as the sole basis
upon which any employee or prospective
employee is discharged, dismissed, disci-
plined in any manner, or denied employ-
ment or promotion.
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November 4, 1987 CONGRESSIONAL RECORD ? HOUSE
Mr. RICHARDSON (during the
reading). Mr. Chairman, I ask unani-
mous consent that the amendment be
considered as read and printed in the
RECORD.
The CHAIRMAN. Is there objection
to the request of the gentleman from
New Mexico?
There was no objection.
(Mr. RICHARDSON asked and was
given permission to revise and extend
his remarks.)
Mr. RICHARDSON. Mr. Chairman,
I rise to offer an amendment for
myself and Mr. HUGHES. Our amend-
ment will counter the problems of the
theft and diversion of controlled sub-
stances into the illegal drug market.
The Richardson-Hughes amendment
specifically exempts those companies
authorized by the Federal Govern-
ment to manufacture, distribute, or
dispense controlled substances from
the polygraph ban. Its intent is to
minimize the theft and diversion of
dangerous drugs and narcotics from le-
gitimate sources in the United States.
The exemption provided by this
amendment is narrowly drawn: the
test can only be administered to em-
ployees who have, or prospective em-
ployees who would have, direct access
to the manufacture, storage, distribu-
tion, or sale of controlled substances.
More Importantly, the amendment ex-
plicitly prohibits polygraph test re-
sults from being used as the sole deter-
mining factor in the hiring. disciplin-
ing, or firing of any employee. Finally,
this amendment is the exact, word for
word language that was adopted by
the House when we debated the poly-
graph ban in the 99th Congress.
Each year, large volumes of prescrip-
tion drugs are stolen or diverted into
Illicit channels. The Drug Enforce-
ment Administration IDEA] and the
General Accounting Office estimate
that 250 million to 270 million dosage
units of legally manufactured drugs
are stolen or diverted into illicit chan-
nels annually. There is a justified need
for a pharmaceutical exemption. The
DEA reports losses in the retail chain
which includes retail pharmacies,
warehouses, and trucks in transit of
between 500,000 and 1 million dosage
units yearly.
More importantly, these losses are
solely attributed to employee theft. In
other words, employee theft accounts
for 80 percent of all losses Incurred by
the chain drug industry. There is,
however, another meaning to these
DEA figures: employee theft and di-
version results in direct and substan-
tial dollar losses to the involved indus-
tries. Retail corporate drug stores
alone lose over $480 million annually
due to internal theft. I believe these
statistics indicate that there Is a legiti-
mate requirement for the Richardson-
Hughes exemption from the poly-
graph ban.
In addition to economic reasons
however, there are valid social policy
arguments that support passage of
this amendment. I am convinced this
amendment is a public health and
safety amendment addressing the
problems of drug abuse and the safety
of this Nation's prescription drugs.
The incentive for illicit drug trading
looms large when a capsule or Pill
which retails for 50 tents can com-
mand $25 to $35 on the black market.
This presents a clear and present
danger for manufacturers and distill).
utors who must guarantee the securi-
ty, safety, and integrity of prescription
drugs. While this amendment won't
stop drug trafficking, ft will present a
clear deterrent to those who would
steal or divert prescription drugs.
Lastly and perhaps most important-
ly, the Richardson-Hughes amend-
ment will help combat this Nation's
drug abuse problem. Drug abuse is
pervasive in the United States. An esti-
mated 40 million abuse illegal or legiti-
mately controlled drugs. Drug addic-
tion not only takes its toll in lost pro-
ductivity?absenteeism, crime, and
medical expenses from drug dependen-
cies cost the U.S. economy $230 billion
each year?but in human lives and suf-
fering. Stopping the flow of drugs into
the black market is essential to com-
bating this Nation's drug abuse prob-
lem and I believe this amendment will
act as a deterrent?helping to stop the
flow of controlled substances into illic-
it channels.
0 1710
Mr. ARMEY. Mr. Chairman, I move
to strike the last word.
Mr. Chairman proponents of ER.
1212 claim that the business oonwauni-
tY is requiring individuals and employ-
ees to take too many polygraph testa.
According to my friend from Montana.
Mr. Vintmens, some 2 million tests are
given every year in the private sector.
In my view, this number pales in
comparison to the number of Ameri-
cans who are abusing addictive drugs
and illicit substances. According to a
number of sources, 40 million people
In the United States regularly use ille-
gal drugs or abuse legitimate con-
trolled substances. In other words,
America has a serious, widespread
drug problem.
When we consider that there are
some 1 million jobs among drug manu-
facturing companies, wholesalers and
retail pharmacies, the odds that an in-
dividual with a chemical dependency
problem or a history of drug related
crimes seeking employment with one
of these businesses is fairly substan-
tial.
Congress would be making a terrible
mistake if we do not provide an ex-
emption on the controlled substance
Issue. To reject the Richardson
amendment will mean that we will
have created a gaping loophole in our
war against drugs and drug-related
crimes. Moreover, rejecting this
amendment will mean we'll /age a val-
uable procedure available to compa-
nies in their efforts to minimise and
deter losses of controlled drugs.
9573
No matter what your perspective is
on lie detector teats, I believe that It Is
Imperative in the name of national se-
curliy as well as public health and
safety to carve out an exemption so
that drug thefts and diversion from le-
glihnate sources do not escalate any
further.
Mr. Chairman, we agreed to this
very same amendment in the last Con-
gress because we, sadly, acknowledged
we have a terrible drug abuse/drug
theft problem. I strongly urge the
House to adopt this important amend-
ment..
Let me say, Mr. Chairman, that I
want to express my appreciation to
the framer of this amendment. I think
it is very carefully thought out.
We agreed to this a year ago. I think
the need is very apparent. It has been
especially seen by this Congress.
We have an opportunity here to pro-
vide an extra element of protection to
our young children from those who
would abuse their employment privi-
lege by stealing drugs and making
them available to our school children.
I urge everybody to support this
amendment.
Mr. OXLEY, Mr. Chairman, will the
gentleman yield?
Mr. ARMEY. I yield to the gentle-
man from Ohio (Mr. Omer].
Mr. OXLEY. I thank the gentleman
for yielding.
Mr. Chairman, I too want to join
Congressman RICHARDSON and Con-
gressman HITCHES in support of this
amendment. This is the amendment
that passed the last time this bill was
up. I think it makes a great deal of
sense. Our committee, the Oversight
and Investigations Subcommittee of
the Committee on Energy and Com-
merce have had numerous hearings on
the whole question of drug diversion.
It is a very, very serious problem in
this country. Many of the drugs that
are diverted are caused by theft,
which eventually get into the illicit
market.
So it is very important that we have
this tool.
As the gentleman from New Mexico
said, this is not the be-ail, end-all, it is
not going to salve the total problem,
but it is a tool which these companies
can use, and these pharmacies can use
to determine what kind of people they
have working for them.
So it is a well-crafted amendment.
Mr. Human and I are both on the
Select Committee on Narcotics Abuse
and Control. We understand the real
problem of drugs in our country. This
is a small step that we can use in pro-
viding the exemption which is provid-
ed for in the amendment by the gen-
tleman from New Mexico.
Mr. ECKART. Mr. Chairman, will
the gentleman yield to rae?
Mr. ARMEY. 1 yield to the gentle-
man from Ohio (Mr. Eczema
Mr. ECKART. 1 thank the gentle-
man for yielding.
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H 9574 CONGRESSIONAL RECORD ? HOUSE November 4, 1.987
My colleague from Ohio and I have
worked together on the Subcommittee
on Oversight and Investigations on
this matter. It was a year ago that this
was the Armey-Eckart amendment
that the House passed. It is my under-
standing that the gentleman's repre-
sentations are true. I wish to be associ-
ated with them. It does include our
direct access language and makes clear
we want to focus on those employees
who are in those circumstances.
So I wish to associate myself with
the gentleman's remarks and thank
him for yielding to me.
Mr. ARMEY. I thank both of the
gentlemen.
Let me say as I did say, as Mr.
ECKART pointed out this is a well craft-
ed amendment. Let me say to the body
at large that a "yes" vote on the Rich-
ardson amendment is a vote for the
safety and health of your children.
I applaud the gentleman from New
Mexico once again for his concern and
in bringing this amendment.
Mr. MARTINEZ. Mr. Chairman, I
move to strike the requisite number of
words.
Mr. OWENS of New York. Mr.
Chairman, will the gentleman yield?
Mr. MARTINEZ. I yield to the gen-
tleman from New York.
(Mr. OWENS of New York asked
and was given permission to revise and
extend his remarks.)
Mr. OWENS of New York. Mr.
Chairman, I thank the gentleman for
yielding.
Mr. Chairman, I rise in strong support of the
Employee Polygraph Protection Act (H.R.
1212) and against the many amendments
which will be offered today to gut the bill.
Polygraph screening does not work, cannot
work, and does not belong in the American
workplace.
One of the things that has made this coun-
try great Is our boundless faith in science and
technology, but sometimes it can get us into
trouble. We have seen so many miracles
made possible in our lives through science
that it does not seem implausible to us that a
little electronic box really could tell whether or
not we are telling the truth. But the reality is
that polygraph screening is essentially a
quack science which should enjoy about as
much credibility as the "x-ray specs" adver-
tised in the back pages of comic books. It
does not measure truthfulness; it measures
physiological indicators of stress?changes in
our blood pressure, breathing, and perspira-
tion. Sometimes those signals of stress can
mean you are lying, but they can also mean
any number of other things as well, including
simply that having electrodes strapped to your
head and being Interrogated like a criminal
makes you very nervous. Study after study
has found that there is absolutely no scientific
basis for the idea that polygraph exams can
reliably identity lies and deception.
We tolerate many foolish practices in our
society and if polygraphs were used as be-
nignly as comic book "x-ray specs" they
would be of no concern to us. That is not the
case, however. Despite the dearth of scientific
evidence to support its reliability, the use of
polygraph screening by employers is now epi-
demic and it is hurting too many of our con-
stituents. Every year, hundreds of thousands
of American workers?innocent, honest,
decent people?are being denied jobs and
turned into unemployable pariahs on the basis
of this bogus, pseudoscientific exam. Because
the polygraph measures physiological func-
tions, persons with physical and mental dis-
abilities or ailments are particularly vulnerable
to being unfairly and incorrectly identified as
"liars" by the exam. For similar reasons, as
well as because the interpretation of poly-
graph results is inevitably subjective and
prone to bias, there is also evidence that poly-
graph screening unfairly discriminates against
black Americans and other ethnic minorities; if
you are black, in other words, the polygraph is
far more likely to tag you as a liar than if you
are white. And most perversely of all, the
greatest discriminatory Impact of polygraph
screening falls on precisely those of our Con-
stituents who are the most scrupulously
honest because their understandable indigna-
tion, surprise, and anger at being interrograted
is likely to create the kind of stress the poly-
graph treats as a signal of deception.
The opponents of H.R. 1212 and those who
support industry-specific exemptions to the
legislation would have you believe that the
polygraph is necessary to combat employee
theft?even employee "terrorism"?and are
trying hard to cast this debate as some kind
of referendum on the crime in the workplace.
This is absurd. There is simply no evidence to
support their claim that the pseudoscience of
polygraph screening is an effective, much less
an essential tool against employee crime.
Businesses in those States which have
banned the use of the polygraph experience
no higher rate of theft and other crimes by
employees than buSinesses In those States
where polygraph use is unregulated and has
been allowed to flourish. Indeed, the National
Institute of Justice Study on Employee Theft
found that employers who use polygraph
screening actually experienced a higher rate
of employee theft than those who did not.
Other opponents of H.R. 1212 have argued
that instead of banning the use of the poly-
graph in private employment we should first
try to regulate its use in the workplace. Unfor-
tunately, advocates of this approach seem to
have missed the point Since polygraph
screening does not work, trying to regulate its
use makes about as much sense as trying to
regulate numerology or palm-reading?it is an
utterly pointless exercise which is inherently
unworkable. Moreover, the few States that
have tried this approach have demonstrated
little success in stopping what even polygraph
advocates agree are abuses of the device. In
fact, during the subcommittee's consideration
of H.R. 1212, one of the most frightening sto-
ries we heard about employer abuse and
misuse of the polygraph was told by a worker
who Was purportedly "protected" by one of
the State laws upon which the Darden substi-
tute has been modeled. Polygraph regulation
was of no use to this man and would be of no
use to other American workers either.
The massive polygraph screening now
taking place in American workplaces is an
abomination and it must be halted. If thou-
sands of our constituents were being branded
liars and denied employment on the basis of
their horoscopes, we would not hesitate to
outlaw the practice. The polygraph is no more
useful or valid in detecting deception than as-
trology, but we have tolerated its use because
it looks somehow scientific with its tangle of
wires and electrodes and its charts of colorful,
squiggly lines. It is long past time for us to
end this absurd masquerade and to provide
the protection American workers need from
the dangerous quackery of the polygraph.
Pass H.R. 1212 and defeat the weakening
amendments.
Mr. MARTINEZ. Mr. Chairman, I do
not know how all of a sudden the legis-
lation becomes a panacea to curb all
the abuses in banking, in child care, in
care of the elderly and all of the
amendments that we have heard so
far. I do not believe that security
measures for the safekeeping of drugs
or for keeping them out of the hands
of drug dealers should depend on the
reliability of a machine that is ques-
tionable.
The credibility of the machine and
the track record of the machine is not
such that we should depend on it for
our security measures to keep drugs
out of the hands of drug dealers. If we
are reduced to that kind of thinking
then we ought to turn over the key to
the cabinet to the drug dealers be-
cause it is not going to do the job.
The polygraph is not a security
measure. Twenty to forty percent of
the time the machines are wrong. If
this amendment passes it is just lead-
ing us down the primrose path of a
false sense of security.
AMENDMENT OFFERED BY MR. HUGHES TO THE
AMENDMENT OFFERED BY MR. RICHARDSON
Mr. HUGHES. Mr. Chairman, I offer
an amendment to the amendment.
The Clerk read as follows:
Amendment offered by Mr. HUGHES to the
amendment offered by Mr. RICHARDSON: In
the matter proposed to be inserted by the
amendment offered by the Gentleman from
New Mexico, strike out "and" at the end of
paragraph (2); strike out the period at the
end of paragraph (3) and insert in lieu
thereof "; and"; and after such paragraph
insert the following new paragraph:
(4) if the test is administered to a current
employee--
(A) the test is administered only in con-
nection with an ongoing investigation of
criminal or other misconduct involving, or
potentially involving, loss or injury to the
manufacture, distribution, or dispensing of
any such controlled substance by such em-
ployer; and
(B) the employee had access to the person
Or property which is the subject of the in-
vestigation.
Mr. HUGHES (during the reading).
Mr. Chairman, I ask unanimous con-
sent that the amendment to the
amendment be considered as read and
printed in the RECORD.
The CHAIRMAN. Is there objection
to the request of the gentleman from
New Jersey?
There was no objection.
Mr. HUGHES. Mr. Chairman, I rise
in very strong support of the Richard-
son amendment which creates a
narrow exception from the prohibition
in the bill in the case of the traffic in
controlled substances. The amend-
ment I am offering improves the Rich-
ardson amendment by limiting its coy-
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CONGRESSIONAL RECORD ? HOUSE 11 9575
erage in investigative uses of poly-
graph testing.
The first question of course Is, Do
we need a special exception in this bill
to fight drug trafficking and drug
abuse? I think that this House is on
record singling out the importance of
comprehensively attacking the drug
abuse problem on every front.
In fact It was just over a year ago, on
October 27, 1986, that President
Reagan signed the Anti-Drug Abuse
Act, which originated in this House,
the most massive legislative assault
and comprehensive attack upon the
problems of drug abuse in this Nation.
Certain drugs are well known to the
public and extensively covered in the
news media?drugs aneh as heroin, co-
caine, and Mftriilltalla. However, there
are other drugs which have legitimate
medical uses which are even more
widely abused. Throughout the 1970's
and 1980's these drugs were responsi-
ble for three-quarters of all the deaths
and injuries due to drug abuse in the
United States. They were responsible
for more deaths than heroin and co-
caine combined. Only in the last 2
years, because the tidal wave of
"crack" cocaine has engulfed our
cities' youth, has the percentage of
deans and injuries due to legitimate
drugs gone down. Legitimate drugs are
produced here in the United States.
We can't blame anyone else for the
thousands of deaths and tens of thou-
sands of hospital admissions from
these drugs.
In the past 3 years this House has
taken the lead in strengthening our
ability to prevent the diversion of le-
gitimate drugs from channels of medi-
cal distribution to the blackmarket
We have appropriated additional
funds for the drug enforcement ad-
ministration to investigate these eases.
We have strengthened the laws to
allow the revocation of registrations of
manufacturers, distributors, and medi-
cal practitioners who are involved in
diversion. We made the robbery and
burglary of controlled substances from
a registrant a separate Federal crime.
Recent estimates by DEA of the
quantities of drugs diverted run as
high as 700 million doses per year. It's
a very serious problem. These pills are
widely distributed to children because
they are easy to take. They don't need
to be injected or smoked. They look
like medicine because they are medi-
cine,, but they are very dangerous, and
when offered to children they are a
specially dangerous temptation.
These legitimate drugs?powerful
painkillers, tranqtdlizers, and stimu-
lants?are widely sought in the black-
market. A single 4 milligram pill of a
painkiller such as dilaudid sells for be-
tween $30 and $65 on the blackmarket
This is easy money for the unscrupu-
lous employee who pilfers drugs, and
big money for more sophisticated
criminals who try to infiltrate whole-
sale drug distribution operations.
The Richardson amendment gives us
a critical tool to prevent the organized
crime rhigs from infiltrating drug com-
panies and distributors. My amend-
ment narrows the Richardson amend-
ment. In the case of current employ-
ees, a polygraph can only be used in
connection with an ongoing investiga-
tion or criminal or other misconduct
involving the manufacture, distribu-
tion, or dispensing of controlled sub-
stances, and only if the employee had
access to the person or property which
Is the subject of the Investigation.
There can be no random polygraph
testing of current employees under
this amendment Indeed, the industry
has told us that they don't need
random testing.
There are Members who may have
been reluctant to support the Richard-
son exception. In light of my amend-
znent, which narrows and focuses the
Richardson amendment. I urge these
Members to take another look at the
Richardson amendment.
I urge my colleagues to support both
my amendment and the Richardson
amendment.
13 1725
Mr. RICHARDSON. Mr. Chairman,
will the gentleman yield?
Mr. HUGHES. I am happy to yield
to the gentleman from New Mexico,
Mr. RICHARDSON. Mr. Chairman,
I want to commend the gentleman for
offering his amendment. I think it im-
proves the one that I offered. It nar-
rows the scope, it creates a threshold,
and I would just like to advise the gen-
tleman that I would be pleased to
accept his amendment.
Mr. HUOTTER Mr. Chairman, I
thank the gentleman for his support.
Mr. WILLIAMS. Mr. Chairman, will
the gentleman yield?
Mr. HUGHES. I am happy to yield
to the gentleman from Montana.
Mr. WILLIAM& Mr. Chairman. I
want to be sure I understand the gen-
tleman's amendment The gentleman
is eliminating the postemployment
random nature of the Richardson
amendment and substituting for that
the use of the lie detector in an inci-
dent-only matter?
Mr. HUGHES. That is correct.
The CHAIRMAN. The time of the
gentleman from New Jersey [Mr.
Humus] has expired.
(By unanimous consent, Mr. Humus
was allowed to proceed for 2 additional
minutes.)
Mr. WILLIAMS. Mr. Chairman, If
the gentleman will yield, let me ask
this question:
Does the gentleman's amendment
continue to allow all preemployment
testing to go forward, or has it elimi-
nated the preemployment testing in
the Richardson amendment?
Mr. HUGHES. No, the preemploy-
ment testing is permitted under my
amendment.
Mr. WILUAMS. Mr. Chairman, I
thank the gentleman.
Mr. HUGHES. Mr. Chainnan,, let me
say that the only thing it does is It fo-
cuses the postemployment testing on
those incidents which in fact result in
an ongoing criminal or civil investiga-
tion.
Let me make one additional point if
I might before I yield back the balance
of my time.
Mr. Chairman, we make an excep-
tion for the law enforcement commu-
nity. The law enforcement communi-
ty, in using the polygraph, basically is
exposed to a very small amount of
controlled substances. Here we are
talking about millions and millions
and millions of dosage units that are
being handled by these phannaceutA-
cal companies said distributors, and
this is where we really need to have
the polygraph testing for diversion.
So I urge my colleagues, if they are
persuaded that law enforcement has
needs in the wee of controlled sub-
stances, they certainly a fortiori have
to argue that we need it in this par-
ticular area.
Mr. Chairman, I urge my colleagues
to support my amendment and to sup-
port the Richardson amendment,
which is an excellent amendment. I
can tell my colleagues that I would
have a hard time supporting this legis-
lation if this amendment does not
carry.
Mr. Chairman, I yield back the bal-
ance of my time.
Mr. LUNGREN. Mr. Chairman, I
move to strike the requisite number of
words.
Mr. Chairman, I think that the
Members ought to realize that for the
greatest period of the history of the
FBI they did not involve themselves in
drug cases. They specifically were pro-
hibited from being involved in drug
cases because J. Edgar Hoover. seeing
the tremendous amounts of money to
be gained in the illegal use of drugs,
was afraid it was such a corrosive, cor-
ruptive influence on even law enforce-
ment that tt would be extremely diffi-
cult for him to maintain the purity, so
to speak, of the FBI.
A number of years ago, in conjunc-
tion with this administration, we made
the decision and the administration
made the decision to remove the bar-
rier to investigation by the FBI, to
have them work with the DEA. In
fact, some of J. Edgar Hoover's worst
thoughts came to the fore. We have
had for the first time in the history of
the FBI, some FBI agents who went
bad, and we have had some prosecu-
tions of FBI agents. Nonetheless, we
thought that risk was appropriate be-
cause of the enormity of the drug
problem lacing the Nation.
Is It too much to believe that with
all the requirements we make prospec-
tive FBI agents go through, when
even then some of them succumb to
the temptations in this area, there-
fore, some of the people working in
the pharmaceutical Industry would
not be tempted to fall to the illegal
perpetrators of druge? I think if we
looked at it realkitically, we know that
Is happening. Not only Is the illegal
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H 9576 CONGRESSIONAL RECORD ? HOUSE
manufacture and distribution of drugs
a problem, as the gentleman from New
Jersey [Mr. HUGHES] has pointed out,
but the illegal diversion of drugs
which are controlled, having been pro-
duced legally, is a problem in this
country. If we believe it is a continuing
major problem why should we remove
one of the most valuable tools that
law enforcement has found in policing
itself from private industry?
I heard my friend, the gentleman
from California, say a little earlier
that Members who support this
amendment believe this gadget is the
panacea, and I would say to my friend,
the gentleman from California, that
he misstates our position. This is not
the panacea, but it is a tool, an effec-
tive tool, a seen by law enforcement,
that we are without this amendment
taking away from the private sector,
those who produce, manufacture and
distribute controlled substancefr it is
not a panacea, but it is an eigetTitte
tool.
Others have said, "Wait a second.
This involves the constitutional rights
of individual Americans." I would SW
if we look at the 5th and 14th amend-
ments of the Constitution, we would
find that they talk about State action.
They talk about prohibiting unreason-
able searches and seizures by the
State, that is, by Government officials.
Here we have made that exception, a
blanket exception in that regard.
What we are asking is this: What
should be the case in the private
sector, in the private employer-em-
ployee relationships? All I would say
is, if we are going to be true to the
feelings of the floor of the House that
were expressed last year in support of
the antidrug bill, truly a bipartisan ap-
proach fighting the drug problem in
this country, we ought to support the
amendment. It is more narrowly
drawn now, with the Hughes amend-
ment, so we do not have to fear
random polygraph tests being adminis-
tered to already existing employees,
but it does continue to allow preem-
ployment screening and having the
polygraph as part of that, not the
total thing but part of it.
Mr. Chairman, it seems to me that
this is a reasonable amendment. It is
something we ought to adopt. It is
something that is not to be feared. It
is something we should accept as rea-
sonable under the circumstances.
Mr. WILLIAMS. Mr. Chairman, I
move to strike the requisite number of
words, and I rise in opposition to the
amendment.
Mr. Chairman, I wonder if the
author of the amendment would
answer a few questions to clarify my
understanding of the amendment.
Does the amendment include the poly-
graphing of people who transport
drugs, that is, truck drivers?
Mr. RICHARDSON. Mr. Chairman,
if the gentleman will yield, the answer
to the question is no.
Mr. WILLIAMS. Mr. Chairman, let
me ask, what does the gentleman
mean in his amendment when he says,
"distribution"?
Mr. RICHARDSON. What I mean
by "distribution" is the normal proce-
dure of drug manufacturers and dis-
tributors. Once again, it would pre-
clude the trucker's ability to have
direct access to controlled substances.
Trucks transporting controlled sub-
stances are locked before leaving the
loading dock and unlocked at the
point of destination by authorized per-
sonnel.
. In answer to the second question, I
mean anybody involved in the entire
process in the channel of controlled
substances.
Mr. WILLIAMS. Except truckers?
Mr. RICHARDSON. Yes.
Mr. WILLIAMS. Mr. Chairman, if
the gentleman will answer another
question, so it is the gentleman' pur-
se
po I/hat those who haul dru23 or
rt drugs are not included 1 n his
eirlenthrnent?
Mr. RICHARDSON. That is correct.
Mr. WILLIAMS. How about those
people who store drugs or are involved
in warehousing drugs on their way to
the pharmacy?
Mr. RICHARDSON. Let me just
make this case: Those that are regis-
tered with the DEA, those that store
and are registered with the DEA are
included. So storage operators are in-
cluded.
Mr. BARTLETT. Mr. Chairman, will
the gentleman yield?
Mr. WILLIAMS. I yield to the gen-
tleman from Texas.
Mr. BARTLETT. Mr. Chairman, I
thank the gentleman for yielding, be-
cause I think the gentleman is doing
the House a service in pointing out
what the Richardson amendment in-
cludes.
I think it is important to read para-
graph 2 of the amendment. It would
be administered or permitted to be ad-
ministered only to an employee or pro-
spective employee who would have
direct access to the manufacture, stor-
age, distribution, or sale of controlled
substances. So whether it is a truck
driver or a pharmacy or a pharmacist
or anyone else, it is only employees
who have direc4 access to thrlipb-
s hink that is riff'.
PtWe line. A truck driver
w o does ot have access to the con-
trolled substance is no threat, and,
therefore, this amendment would not
apply to him.
Mr. WILLIAMS. Mr. Chairman, let
me reclaim my time. I appreciate the
gentleman's assistance and his expla-
nation.
Relating to these substances in
schedules 1, 2, 3, and 4, which appar-
ently are the only controlled sub-
stances the gentleman's amendment
covers, are those substances always
sealed? Are they always in a certain
state of security by having been sealed
as they are transported and stored ac-
cording to DEA's regulations?
Mr. RICHARDSON. Mr. Chairman,
if the gentleman will yield, that is cor-
November 4, 1987
rect. They are also sealed within the
truck, meaning that controlled sub-
stances are doubled-sealed during
transportation.
Mr. WILLIAMS. So as those sub-
stances come across the country and
are put in a warehouse, does the
manner in which they are sealed mean
that the people- dealing with them in
the warehouse are not subject to a lie
detector examination under the gen-
tleman's amendment?
Mr. RICHARDSON. They are cov-
ered under the bill.
Mr. WILLIAMS. So the truck driver
would not be the person who unloads
the truck and stores the drugs, so he
would not be subject to examination?
Mr. RICHARDSON. The gentleman
is correct.
Mr. -WILLIAMS. Mr. Chairman, if
the 40131kor of the amendment will con-
tinue tO respond, let me say that I ap-
preciate his willingness to engage in
this colloquy.
Does the author of the amendment
know what the position of the Ameri-
can Pharmaceutical Association is on
the gentleman's amendment?
Mr. RICHARDSON. Mr. Chairman,
my understanding is that the entire
pharmaceutical industry, the drug
manufacturers and distributors, are in
support of the legislation.
Mr. WILLIAMS. Mr. Chairman, the
gentleman is wrong. Let me read from
a letter to me from the American
Pharmaceutical Association. I will
read only the one sentence which
sums up the association's position.
The CHAIRMAN. The time of the
gentleman from Montana [Mr. Wm-
Limas) has expired.
(By unanimous consent, Mr. WIL-
LIAMS was allowed to proceed for 2 ad-
ditional minutes.)
Mr. WILLIAMS. Mr. Chairman, let
me say to my colleagues that I want to
share this with them because I believe
this is very important. The American
Pharmaceutical Association has writ-
ten this:.
"T
1116
4twerican Pharmaceutical As-
sociati1 position is that polygraph
sh t
_ not be used as a means of ab
DiveAn ployment screening in pharma-
cies, should not be used in pharmacies
for routine security checking of em-
ployees"?and the amendment offered
by the gentleman from New Jersey
may have taken care of that?and fi-
nally, "should not be used in pharma-
cies in the course of investigation for
causes."
The American Pharmaceutical Asso-
ciation itself is against this amend-
ment. I ask, why is that? Because they
know this gadget does not work. It cre-
ates a false sense of security, and they
do not want it. They do not want the
pharmacists and the drugstore owners
of America to be relying on a gadget
that does not work. The American
Pharmaceutical Association knows
that we cannot protect the American
Public when we let pharmacists and
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November 4, 1987
CONGRESSIONAL RECORD HOUSE
drugstore owners depend upon this
faulty gadget.
Mr. RICHARDSON. Mr. Chairman,
will the gentleman yield?
Mr. WILLIAMS. I yield to the gen-
tleman from New Mexico.
Mr. RICHARDSON. Mr. Chairman,
I would like to make the point very
clear that while the gentleman may
have a letter from the American Phar-
maceutical Association, they are very
limited in being involved in the storing
and distribution of drugs as prescribed
In this amendment.
Let me just say that the National
Association of Chain Dealer Drugs is
supportive of this bill. Most drug man-
ufacturers have sent many letters
throughout the Congress in support of
this legislation. Law enforcement
agencies support it. Perhaps that
small group that the gentleman men-
tions is not included.
The CHAIRMAN. The time of the
gentleman from Montana [Mr. WIL-
LIAMS] has again expired.
(By unanimous consent, Mr. WIL-
LIAMS was allowed to proceed for 2 ad-
ditional minutes.)
Mr. RICHARDSON. Mr. Chairman,
will the gentleman yield?
Mr. WILLIAMS. I yield to the gen-
tleman from New Mexico.
0 1740
Mr. RICHARDSON. Mr. Chairman,
I thank the gentleman for yielding.
The implication that the gentleman
Is trying to leave is that this is not
supported by a wide group of people
and companies in the drug business,
and that is not the case.
I wanted to point that out to the
gentleman.
Mr. WILLIAMS. The American
Pharmaceutical Association was
founded in 1852, and it is the leader in
the professional and scientific ad-
vancement of this industry.
This gets at the point of it. Of
course, we want to protect America
from a misuse of these drugs, but here
Is the association that is most impor-
tant for this matter saying do not
allow the lie-detector gadget to be
used to protect America from these
drugs, because it is no good. It is
faulty.
We use it now, and it does not work.
It is part of the reason we have a hem-
orrhaging in our industry. Instead,
they want to come up with good per-
sonnel practices. They want the re-
spected official law enforcement agen-
cies of the United States, the public
agencies, to be investigating these
matters, not the manager of Drug
Fair. That is our problem now.
We are trying to tighten up this
hemorrhaging in America with regard
to the illegal use of drugs, but I
submit, and the American Pharmaceu-
tical Association agrees, that contin-
ued use of the lie detector will do the
reverse of what the gentleman from
New Mexico and others are trying to
do here this evening.
Mr. SHAW. Mr. Chairman, I move to
strike the requisite number of words.
Mr. Chairman, I think that the gen-
tleman who just spoke is missing the
point. We are not here to represent
the American Pharmaceutical Associa-
tion or any other employer, and we are
not here to look at strictly protecting
the rights of the employee.
We must not lose the big picture
which is, if we are going to pass this
bill, which I believe is ill-advised, that
It has to be pared down to exempt cer-
tain categories.
We have done it earlier in areas that
have security sensitivity by a very
narrow vote. Now we are going to have
an opportunity to do this again, and in
casting your vote, do not talk about
the American Pharmaceutical Associa-
tion. Do not look at Dart Drug or
Drug Fair, but look at the kids out
there that are getting these drugs, the
misguided drugs that are illegally
coming onto the market and being di-
verted. It is a big problem.
The gentleman from New Jersey
[Mr. Humus] said he did not think he
could support this legislation without
this very important amendment in it.
Whereas I do not intend to support
this legislation on final passage, we
are very kindly cleaning it up and get-
ting rid of some of the sensitive areas
that must be addressed.
The gentleman from Montana has
made numerous references like it is a
piece of witchcraft. It is not.
Some 30 percent of the Fortune 500
companies in this country today use
the polygraph test. It is not altogether
correct, I know that; and there are
some stopgaps and some guarantees
that have to be put in it.
The gentleman from Florida [Mr.
YOUNG] will offer some of these pro-
tections to the employee later which
will make a very, very positive addition
to what is going on here this evening.
Addressing right now the amend-
ment of the gentleman from New
Mexico, the gentleman has pointed
out a very important part of the econ-
omy and commerce that must be made
an exception to.
Mr. RICHARDSON. Mr. Chairman,
will the gentleman yield?
Mr. SHAW. I yield to the gentleman
from New Mexico.
Mr. RICHARDSON. Mr. Chairman,
I thank the gentleman for yielding to
me.
I want to point out here a statement
in support of the amendment by the
National Wholesale Druggists Associa-
tion.
Mr. SHAW. Mr. Chairman, in con-
clusion I would certainly hope that if
we are going to have a vote on this
particular issue, that it be an over-
whelming "yes" vote.
We are going far beyond the rights
of the employee at this particular
point, and we are talking about the
rights of America to be crime free and
drug free as much as possible.
11 9577
This is a very important amend-
ment, an exception that I hope the
Members will vote for.
Mr. JACOBS. Mr. Chairman, I move
to strike the requisite number of
words.
Mr. Speaker, in speaking of the
Spanish Inquisition, the author of the
novel "Captains from Castile" spoke
of a situation where, "no one was too
Innocent to be proved guilty."
I am thinking of an incident about a
year ago when our incumbent Attor-
ney General was before the other
body for confirmation.
It was determined that his official fi-
nancial report, which he had filed and
signed, was false. The issue was wheth-
er it was consciously false or negligent-
ly false.
At that time some commentators
suggested that Mr. Meese, being one
of the leading advocates of the use of
so-called polygraph or lie detector
tests, take a dose of his own medicine,
which might prove to be truth serum,
in order that it be determined with
some reliability whether his false fi-
nancial statement was intentional or
unintentional.
If I recall correctly, Mr. Meese de-
clined to submit to a polygraph test.
That raises an interesting question.
Did he decline to submit to the poly-
graph test because he thought the test
was unreliable, or did he refuse to
submit to that test, because he
thought it was reliable?
Surely one must conclude one or the
other.
The Good Book tells us among the
Ten Commandments, that thou shall
not bear false witness. I wonder if that
only applies to humans, or also to the
contraptions humans have contrived
to manufacture.
If this mechanism is unreliable, and
If we assume the honesty of our own
Attorney General, we must assume
that in his opinion the test is unreli-
able, then one must ask, how does it
suddenly become reliable simply be-
cause it is drug abuse which one is
trying to detect.
If a chicken cannot fly across the
Ohio River to read poetry does it not
follow then that a chicken cannot fly
across the Ohio River to read prose?
If a Member is among those who be-
lieve that the polygraph test is inher-
ently unreliable?as our courts have
repeatedly held?how do drugs make it
reliable?
If, on the other hand, a Member be-
lieves that it is reliable, then why not
apply it to the detection of all crimes?
It is important to me that controlled
substances not be put to illicit use. But
that is not the issue here. The issue is
whether the polygraph which the
courts say is unreliable is somehow
made reliable by a vote of the Con-
gress.
One is reminded of the City Council
which passed an ordinance which said,
"Henceforth and hereafter pigeons
shall not light on city hail."
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H 9578 CONGRESSIONAL RECORD ? HOUSE
If this polygraph machine is unreli-
able, can an act by the Congress make
it reliable? No.
Mr. HUGHES. Mr. Chairman, will
the gentleman yield?
Mr. JACOBS. I yield to the gentle-
man from New Jersey.
Mr. HUGHES. Mr. Chairman. I
thank the gentleman for yielding to
me.
I thank the gentleman for the gen-
tleman's statement, and I do not agree
with the gentleman with regard to the
use of the lie detector, the polygraph
as a tool in law enforcement; but I
would suggest that the gentleman
would have problems with the bill. be
cause the bill carves out exceptions for
government, law enforcement,
gence-gathering.
Mr. JACOBS. I would suggest,, all of
the Members should have problems
with the logic discussed in the last
couple of hours here.
I think this is definitely a case for
consistency. Either the gun shoots bul-
lets or blanks. It it shoots bullets, it
may be useful; and if it shoots blanks
and impugns the reputation of a thor-
oughly honest citizen, which I assume
Mr. Meese comdders himself to be
when he did not take the test, then it
Is not useful.
Mr.. GUNDERSON. Mr. Chairman, I
move to strike the requisite number of
words.
(Mr. GUNDERSON asked and was
given permission to revise and extend
his remarks.)
Mr. GUNDERSON. Mr. Chairman, I
rise, first, of all, to respond to the gen-
tleman from Montana, who suggests
that somehow because the American
Pharmaceutical Association is opposed
to this amendment, that it is a bad
amendment.
The fact is that the Drug Enforce-
ment Administration estimates that
the employees are stealing between
500.004 to more than 1 million doses of
dangerous drugs per year.
And let us be very blunt about it.
It is the American Pharmaceutical
Association that apparently has some
of their employees, not the majority,
but some of their employees who are
probably stealing those drugs who do
not want to be subject to a lie-detector
test. That is why they have taken that
position.
The pharmaceutical manufacturers
and distributors are in favor of it.
Look as well at what the gentleman
from Montana said last year on the
floor of the House when we considered
this legislation.
He stood up before the House and
said, "Likewise, the bill before us pro-
vides exemptions for those private
businesses that directly impact on our
national security or public health. We
will be accepting amendments to pro-
vide other exemptions regarding dan-
gerous drugs, security guards., and the
protection of electric and nuclear pow-
erplants and public transportation We
will accept those amendments, because
they are a matter of protecting the na-
tional health and safety."
That is what we are talking about in
this particular amendment. We are
talking about the fact that we need to
protect the health and safety of our
young children, as the gentleman from
Florida stated.
This is not a cure-all, but a tool. The
amendment is very clear; and as the
amendment by the gentleman from
New Jersey says, when we are dealing
with present employees, we make sure
that testing is incident-specific, not
random. And that harassment and
other abuses are addressed.
If we cannot pass this amendment,
then we are suggesting that the so-
called war on drugs that this Congress
waged last year was just a joke.
The CHAIRMAN. The question is on
the amendment offered by the gentle-
man from New Jersey [Mr. Rooms] to
the amendment offered by the gentle-
man from New Mexico (Mr. RICHARD-
SON/.
The amendment to the amendment,
was agreed to.
The CHAIRMAN. The question is on
the amendment offered by the gentle-
man from New Mexico (Mr. RICHARD-
sox', as amended.
The question was take= and the
Chairman announced that the ayes
appeared to have it.
RECORDED VOTE
Mr. RICHARDSON. Mr. Chairman.
I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic
device, and there were?ayes 313, noes
105, not voting 15, as follows:
Mott No. 4101
AYES-313
Akaka Carr
Alexander Chandler
Andersen Chapman
Andrews Chaplet/I
Annunsio Cheney
Anthony Clarke
Archer Coats
Armey Coble
Amin Coelho
Dedham Coleman (MO)
Baker Ottfentart (TX)
Ballenger Combed.
Barnard Conte
Bartlett Cooper
Barton Coughlin
Bateman Coulter
Bennett Craig
Bentley Dannemeyer
Bereuter Darden
BaviU Daub
Bilbray Davin (IL)
Bilirakis Daze (MI)
Bliley de Is Garza
Boggs DeLaY
Boland Derrick
Honker DeWine
Boned Dickinson
Bosco Dicks
Boulter Dingell
Brennan DioCitierdt
Broomfield Dixon
Brown (CA) DortnellY
Bryant Dorgan (SD)
Buechler Dernan (Ca)
Bunning Dowdy
Berton Dreier
Bastairente Dwyer
Byron Dyson
Callahan Early
Campbell Eckert
Cardin Ifigitards (OK)
Carper Damon
English
Erdreich
Boy
Powell
Newell
Fazio
Petah=
Fields
Fish
Flippo
Piorto
Poky
Ford (TN)
Pretzel
Frost
GaDegly
Gallo
Gay*.
Gekita
Gibbets
Gilman
Gingrich
Glickman
Gooclling
Garden
Gradient
Grant
Gray (!L)
Green
Gregg
Guerin'.
Gunderson
Nall (OK)
BED CT%)
Hamli
Hefner
Henry
Berger
Hiler
Hochbrueckner
Holloway
Hopkins
Horton
Houghton
Hubbard
Huckaby
Hughes
Hunter
November 4, 1987
Mime Shmawey
Mica Shuster
Michel Seek;
Mifier (Off) Skeen
Molinari Sittiton
Moilokan Slattery
Montgomery SMuglater (NY)
Moorhead Slaughter (VA)
Morrison (WA) Smith (FL)
?dram& litnith (IA)
Murphy Smith (NE)
Murtha Sirdth (DU)
Myers Smith (TX)
Hutto Neale Smith. Deany
Hyde Watcher (OR)
Inhofe Nelson Smith. Robert
Ireland Menai, (NH)
Jenkins Nielson Smith, Robert
Johnson (S)) Nowak (OR)
Jones (NC) Olin Snowe
Jones (TN) Ortiz Solomon
Kartiorakt Oodey Spence
Kasieh Packard Speen
Kleezka Panetta St Germain
Kolbe Parris Staggers
Roller awhaYsii Stallings'
Koment Patterson illengeland
Kyl Penner Stenhoisn
Lagomarsino Petri Stratton
Lancaster Pickett Stamp
lentils Pickle Sweden's'
Latta Porter Sweeney
Leach (IA) Price (IL) Swindell
Leath (TX) Price (NC) Talton
Lent Panel Twee
Lewis (CA) Qmilien Tauzin
Lewis (FL) Rahall Taylor
Lightfoot Raven& Thomas (CA)
Livingston Ray Thomas (GA)
Lloyd Regula TorrieeM
Lott Rhodes Traliewst
Lowery (CA) Richardson Udall
Luian Rinaldo Upton
Luken, Thomas Ritter Valentine
Lukens, Donald Roberta Vander dagt
Ltmgren Robinson Vollmer
Mack Rae Vocanovich
Madigan Rogers Welwyn
Marlonee Rose Walker
Martin (IL) Rostenkowski Watkins
Martin (NY) Roth Weber
Martians Roultema Weldon
Mavroules Rowiand (GA) Whittaker
Mauch Saiki Whitten
McCandless Sawyer Wilson
McCollum 811.110.1 Wise
McCurdy Schaefer Wolf
McDade Schetwr Wortley
McEwen Schneider Wylie
McGrath Schroeder Tatra,
McHugh Schuette Young (AK)
McMglan (NC) Schulze Young (FL)
McMillen (MD) Sensenbreener
Meyers Shaw
NOrg--106
Ackerman Beetkitts Owens (NY)
Applegate Hayes (IL) Pease
Atkins Hertel' Pelosi
AuCoin Boyer Penny
Bates Aeolis Perkins
Beilenson Jet fords Rangel
Berman Johnson (CT) Ridge
Boehlert Ants Roane
Bonior ICastenmeler Rowland (CT)
Boucher Kennedy Roybal
Boxer Kennelly Russo
Brooks Efltlee Sabo
Bruce Koshuayer Savage
Clay LaPalete Betimes
Clinger Lehman (CA) Shays
Collins Lehman (FL) Sawa'
Conyers Leland Skaggs
Coyne Levin (MI) Bolan
Crockett Levitt* (CA) Stark
DePazio Lewis (GA) Stokes
Delius= Lowry (WA) Studds
Downey Manton Swift
Durbin Markey SYnas
riymally Matsui Tones
Edwards (CA) McCloskey Towns
Evans later (CA) Trtakr
Make Miller (WA) Vents
Hammerschmidt ikeietta linnIlkonen et,.
Ford (MI) Moakley
Hands Frank bloody
Hastert Garcia Matelle
Hatcher Geidenwns Morrison (CT)
Hayes (LA) Gonzalez Neal
Dialley Grandy Oberstar
Gray (PA) Obey
Disclaim
Waxiimis
Weise
Wheat
WIWanes
Wolpe
Wyden
Yates
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NOT VOTING-15
Biaggi
Brown (CO)
Crane
Daniel
Duncan
Gephardt
Howard
Kaptur
Kemp
Lipinski
0 1810
CONGRESSIONAL RECORD ? HOUSE 11 9579
MacKay
Oskar
Owens (UT)
Roemer
Sharp
Messrs. EDWARDS of California,
CLINGER, HOYER, ROYBAL,
WAXMAN, OBEY, MANTON.
HERTEL, and RUSSO changed their
votes from "aye" to "no."
Messrs. MARTINEZ, MAVROULES,
and ROBINSON changed their votes
from "no" to "aye."
So the amendment, as amended, was
agreed to.
The result of the vote was an-
nounced as above recorded.
AMENDMENTS OFFER= BY MR. GUNDERSON
Mr. GUNDERSON. Mr. Chairman, I
offer several amendments.
The Clerk read as follows:
Amendments offered by Mr. GUNDERSON:
Page 8, after line 13, insert the following
new subsection:
(d) EXEMPTION FOR ONGOING INVESTIGA-
TioNs.--Subject to section 7, this Act shall
not prohibit any employer from requesting
an employee to submit to a lie detector test
If?
(1) the test is administered in connection
with any ongoing investigation of criminal
or other misconduct involving, or potential-
ly involving, significant loss or injury to the
employer's business;
(2) the employee had access to any person
or property which Is the subject of the in-
vestigation; and
(3) the employer has a reasonable suspi-
cion that the employee was involved in the
incident or activity under investigation.
Page 8, after line 13, insert the following
new sections (and redesignate succeeding
sections accordingly):
SEC. 7. RESTRICTIONS ON EXEMPTIONS.
(a) OBLIGATION TO COMPLY WITH CERTAIN
LAWS AND AGREIMI:WrS.?Any exemption pro-
vided under section 6 (other than subsec-
tions (a), (b), and (c) of such section) shall
not diminish an employer's obligation to
comply with?
(1) applicable State and local law, and
(2) any negotiated collective bargaining
agreement, which limit or prohibit the use
of lie detector tests on such employees.
(b) TEST MAY NOT BE SOLE BASIS FOR AD-
VERSE EMPLOYMENT Acrrox.?Any such ex-
emption shall not apply unless the employer
can demonstrate that the results of an anal-
ysis of lie detector charts are not used as
the sole basis upon which an employee or
prospective employee is discharged, dis-
missed, disciplined in any manner, or denied
employment or Promotion.
(c) RIGHTS or EXAMINEE.?Such exemp-
tions shall not apply unless the require-
ments described in paragraphs (1), (2), and
(3) are met.
(1) PRETEST PHASE.?During the pretest
phase the prospective examinee?
(A) is provided with reasonable written
notice of the date, time, and location of the
test, and of such examinee's right to obtain
and consult with legal counsel throughout
all phases of the test;
(B) is not subjected to prolonged interro-
gation;
(C) is informed of the nature and charac-
teristics of the tests and of the instruments
involved;
(D) is informed in writing as to whether
(1) the testing area contains a two-way
mirror, a camera, or any other device
through which the test can be observed. or
(ii) the test will involve any other device, in-
cluding any device for recording or monitor-
ing the conversation;
(E) is informed of such examinee's privi-
lege against self-incrimination under the
Fifth Amendment of the Constitution of
the United States:
(F) is provided an opportunity to review
all questions (technical or relevant) to be
asked during the test and is informed of the
right to terminate the test at any time; '
(0) signs a notice informing such examin-
ee of?
(i) the limitations imposed under this sec-
tion; and
(ii) the legal rights and remedies available
to the examinee if the lie detector test is
not conducted in accordance with this Act.
(2) AcTuat TESTING PHASIL?During the
actual testing phase?
(A) the examinee is not asked any ques-
tions by the examiner concerning?
(0 religious beliefs or affiliations;
(ii) beliefs or opinions regarding racial
matters;
(iii) political beliefs or affiliations;
(iv) any matter relating to sexual behavior
or any sexual behavior of such employee or
prospective employee, unless sexual behav-
ior is specifically related to job performance
or inquiry into such behavior is required
under State law; and
(v) beliefs, affiliations, or opinions regard-
ing unions or labor organizations;
(B) the examinee is permitted to termi-
nate the test at any time;
(C) the examiner does not ask such exam-
inee any question (technical or relevant)
during the test which was not presented in
writing for review to such examinee before
the test;
(D) the examiner does not ask technical
questions of the examinee in a manner
which is designed to embarrass, degrade, or
needlessly intrude upon the examinee; and
(E) the examiner does not conduct a test
on an examinee who, in the opinion of the
examiner, is inhibited from responding co-
herently to the test because of?
(i) mental or physical fatigue,
(ii) undue emotional stress or intoxication
due to excessive use of alcohol, sedatives,
stimulants, or tranquilizers,
din addiction to narcotics,
(iv) known mental disorder, or
(v) significant physical discomfort or
physical disability that, in and of itself,
might cause abnormal responses during the
test.
(3) POST-TEST PHASE.?During the post-test
phase, the examinee?
(A) is further interviewed on the basis of
the results of the test; and
(B) is provided with a written copy of?
(i) any opinion and conclusion rendered as
a result of the test,
(ii) questions asked during the test, pre-
sented along with the corresponding
charted responses, and
(iii) upon the request of the employee, a
written description of the incident or activi-
ty in connection with which the test is ad-
ministered.
(d) QUALIFICATIONS OF EXAMINER.?Such
exemptions shall not apply unless the indi-
vidual who conducts the lie detector test?
(1) is at least twenty-one years of age;
(2) is a citizen of the United States;
(3) is a person of good moral character;
(4) has complied with all required laws
and regulations established by licensing and
regulatory authorities in the State in which
the test is to be conducted;
(5)(A) has successfully completed a formal
training course regarding the use of lie de-
tector tests that has been approved by the
State in which the test is to be conducted or
by the Secretary of Labor; and
(B) has completed a lie detector test in-
ternship of not leo than 8 months duration
under the direct supervision of an examiner
who has met the requirements of this sec-
tion;
(6) maintains a minimum of $50,000 bond-
ing or an equivalent amount of professional
liability coverage:
(7) uses an Instrument that records con-
tinuously, visually, permanently, and simul-
taneously changes in the cardiovascular,
respiratory, and electrodermal patterns as
minimum instrumentation standards;
(8) bases an opinion of deception indicated
upon evaluation of changes in physiological
activity or reactivity in the cazdiovascular,
respiratory, and electrodermal patterns on
the lie detector charts;
(9) renders any opinion or conclusion re-
garding the test?
(A) in writing and solely on the basis of an
analysis of the lie detector charts;
(B) which does not contain information
other than admissions, information, case
facts, and interpretation of the charts rele-
vant to the purpose and stated objectives of
the test; and
(C) which does not include any recommen-
dation concerning the employment of the
examinee;
(10) does not conduct and complete more
than 8 lie detector testa on the calendar day
on which the test is given and does not con-
duct any such test for less than a 90-minute
duration; and
(11) maintains all opinions, reports,
charts, written questions, lists, and other
records relating to the test for a minimum
period of 2 years after administration of the
test
SEC. 8. DISCLOSURE OF INFORMATION.
(a) III Ozszast?A person, other than the
examinee, may not disclose information ob-
tained during a lie detector test, except as
provided in this section.
(b) Paw/Frits Discrosuaxs.?A polygraph
examiner, polygraph trainee, or employee of
a polygraph examiner may disclose informa-
tion acquired from a lie detector test only
to?
(1) the examinee or any other person spe-
cifiCally designated in writing by the exam-
inee;
(2) the employer that requested the teat;
or
(3)(A) any person or any governmental
agency that requested the test, or
(B) any person, as required by due process
of law, who obtained a warrant to obtain
such information in a court of competent
jurisdiction.
(c) DISCLOSURE BY EMPLOYER.?An employ-
er (other than an employer covered under
section 8(a), 8(b), or 6(c), for whom a lie de-
tector test is conducted may disclose infor-
mation from the test only to a person de-
scribed in subsection (b).
Page 8, strike lines 18 through 22, and in-
sert the following:
(1) the term "lie detector test" includes?
(A) any examination involving the use of
any polygraph, deceptograph, voice stress
analyzer, psychological stress evaluator, or
any other similar device (whether mechani-
cal or electrical) which is used, or the re-
sults of which are used, for the purpose of
rendering a diagnostic opinion regarding the
honesty of an individual; and
(B) the testing phases described in para-
graphs (1), (2), and (3) of section 7(c);
Page 9, line 2, strike "and".
Page 9, line 5, strike the period and insert
a semicolon.
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11 9580 CONGRESSIONAL RECORD ? HOUSE
Page a after lira 5, insert the following
new subsections:
(4) the term "relevant. emotion" means
any lie detector test question which pertains
directly to the matter or investigation
with respect to which the examinee is being
tested; and
(5) the tem "technical ouestise means
any contrek. sYsititometic, or netelasi ques-
tion which, although not relevant, is de-
signed to be used 411 & 11141111UNO against
which relevant annum& auff be sielbeired?
Mr. GUNDERSON Marble the read-
ing). Mr. Chatrrem, I ask manknoue
consent that the amendments be con-
sidered en bloc, considered. as read,
and printed in the Recoan.
The CHAIRMAN. Is there objection
to the request of the gentleman front
Wisconsin?
There was no objection.
(Mr. GUNDERSON mired and was
given permission to redse and extend
his remarks)
Mr. GUNDERSON. Mr. Chairman,
the amendment that is now before the
House Is an amendment that is being
offered by myself and the gentleman
from Texas [Mr. SIIINUOULI *nal.
This amendment will provide and
allow the me of the polygraph for in-
vestigative testing of current employ-
ees.
I went to make it very efeer that
what we are trying to do with this par.
ticular amendment is respond both to
the legitimate needs of American. busi-
ness and industry and at. the some
time deal with the overuse and abuse
of the polygraph.
How do we do that.? First of all. at
least VS percent of all polygraph tests
in this country me used for preem-
ployment screening. I think most
people will agree that perhaps the big-
gest concern over the polygraph is
that it is used so extensively in preem-
ployment. When used for preemploy-
ment screening, the polygraph is First,
intimidating. and. No. 2. it tends to be
the sole determinant of whether the
job applicant is or is not hired or of-
fered that job. Yet, as we go through
the king litany at concerns here today,
we talk about the elkeb of the manes
use in business.
The amendment before us as I indi-
cated, tries to respond to the partial:-
lar concerns that. I think many people
have raised with regard to this legislie.
tion that is now before us. The amend-
ment doer so in a way that does not
handicap or absolutely handcuff the
ability of business and industry in this
country to deal with the teeth:late
threat of internal theft and crimes
within industry in this country. First
of all there is great concern about
whether as not the polygraph exami-
nation is ever ateurshe. 1 will mast out
that the scientific evidence dearly
suggests, and the Office of Technology
Assessment study frelleator that the
polygraph shows meaningfal scientific
evidence of validity when it Is focused
in the area of investigations of specific
criminal activity.
That is exactly what this amend-
ment focuses upon doing.
D182
In addition to that, the amendment
assures the fair conduct of polygraph
testing by providing strict regulations
on such testing that will guarantee
that any polygraph examination that
Is used under this act will protect not
only the rights of the employer but
equally the rights of the employee.
So the legialatiola before us is what I
would call the perfect middle ground.
No. 1, it eliminates the abuse, No. 2, It
eliminates the majority of the exams.
Over 75 percent of the exams would be
eliminated or not allowed with this
particular amendment, and yet it also
would be consistent with. current goer-
erninent policies?saying if we are
going to allow the use of the poly-
graph in specific incidents and specific
cases here within the Federal Govern-
ment, we would do the same in the pri-
vate sector.
Mr. Chairman. I want to point out to
mY colleagues in closing that this
amendment probably has broader sup-
port from the outside community than
any other amendment that has been
offered earlier today or will be offered
from here on out. It is endorsed by the
American Retail Iltderation which
consists of 24 different groups, by the
National Mans Retailing Institute, the
Food Marketing Institute, the Nation-
al Chows Association. the National
Association at Chain Drug Sterns, and
the National Retail Merchants Asso-
ciation.
I would also point out to my col-
leagues on the other side of the aisle
that they should be aware that many
people Lei the other body, including
Senator MIZINNIDT, believe, that this ap-
proach may be the Prongs' Inlddle
ground. It barn the use of the poly-
graph for preemployment testing, but
it clearly allows the use of the poly-
graph, not as the sole tool, but as one
of many investigatory tools once a
person is on the job, there is a specific
incident, where that person is under
ressomble suspicion, and yes, only
when that person has a work history
already on board.
I would encourage mY colleagues to
accept and support this particular
amendment. It will make the legisla-
tion in front at us much, much better.
I would also suggest it would en-
hence the chances of enactment a
great deal.
Mr. STENHOLM. Mr. Chairman, I
move to strike the last word. and / rise
In support of the amendment.
(Mr. STENHOLM asked and was
given permission to revise and extend
his remarks.)
Mr. IFTEN1101611. Mr. Chairman, I
rise in support of this amendment and
strongly urge my colleagues to vote for
the Chmderson-Stenhoini amendment.
If my colleague& are looking today
for an amendment that is nuelerate
and measured, that. takes a thoughtful
and circumspect appro. that maxi-
mizes the potential for beneficial poly-
graph testing while preventing abuses
November 4, 1.987
and careless procedures, this, Mr.
Chairman, is that amendment.
Par from offering a, simple, hostile
amendment, we are proposing changes
that solve many of the problems cre-
ated by the shotgun approach taken
by H.R. 1212 and more than adequate-
ly addrese the preteens that motteat-
ed the underlying II= I 'commend my
friend. Suva Gttitaltiteral, for his hard
work and his thoroughness in develop-
ing this amendment.
This amendment removes the ran-
domness that the bill's supporters
have attacked. We would allow testing
that relates only to a specific incident
of theft, criminal activity, or other
misconduct, and would affect only
those employees under reasonable sus-
picion of involvement.
hi other wordS,, rather than use as a
prehire, screening device, our amend-
ment focuses on testing as an investi-
gative device relating only to current
employees. Moreover, Congress' own
Office of Technology Assesement has
found that the acturacy and reliability
of polygraph testing increases marked-
ly with ineident-specific applications.
And there are ample regulatory pro-
tections in our amendment to prevent
the investigative device from going too
far.
First, irrelevant personal questime
are prohibited, such as those relating
to religions, political, anion, or other
affiliation. All questions must pertain
to the misconduct being investigated.
Employees would be counseled In
vatic& on exactly what questions would
be asked, what procedure would be
used, and how the testing equipment
works.
Employees would be provided Men&
diately with a copy and discussion of
test results and guaranteed complete
confidentiality.
TO guarantee that all testing is done
In a thorough and deliberate assumer,
each teat must last at least 90 minute:
and no mom than six testa could be
administered in 'e single day by an ex-
ambler.
Finally. unlike H.R. 1212, which ar-
bitrarily second-guesses those State
legislatures that da not find a. total
polygraph ban to be in the public in-
terest, the Ciondeneet-Steniseine
amendment is a minimum standard?
and a high-minimum standard, at
that--and would not preempt States
from enacting stricter laws.
This amendment goes much more
than halfway toward meeting the con-
cerns raised by supporters of H.R.
1212. At the some time, it would do
much to allow the reasonable and con-
structive use it polygraph tests to con-
tinue protecting the property and per-
sonal safety of innocent individuals.
MI-. GRAND'''. Mr. Chairman, /
move to strike the requisite number of
words and I rise in support of the
amendment.
Mr.. Chairman, this is the only
amendment that I intend to support
today, and I would like to speak to
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CONGRESSIONAL RECORD ? HOUSE
those colleagues who are inclined to
perhaps be somewhat questionable
about the outcome of H.R. 1212, who
are concerned about the polygraph
from the worker point of view and
from the businessman's point of view.
It seems to me this is the only
amendment that strikes a balance.
Prior to my addressing the Chamber,
Mr. Chairman, a Member asked does
this amendment penalise the worker
in any way. One only has to read as
far as line 3 to see that the employer
must request an employee to submit to
a test.
A Member asked me does this mean
he will be fined if he does not. It does
not mean that. The employee is pro-
tected here.
But I would say this: The Americn
Medical Association, which does not
support Young-Darden, which sup-
ports H.R. 1212. has said that it will
not support the polygraph in industry
or in the Federal agencies as a preem-
ployment test.
In the same article it said the follow-
ing; "Criminal investigations has often
benefited from polygraph usage be-
cause the investigator can focus on the
Incident in question, using it as the
basis for selecting relevant and =-
trolled questions in the application of
the test, in the full knowledge that
the detection of deception will not be
absolutely accurate." Nobody is argu-
ing that it will be, but It Is closer to ac-
curacy than we will come otherwise. It
Is a management tool, one among
many.
I encourage colleagues that have not
supported any of the amendments and
will continue to vote against the ex-
emptions to vote for Ounderson-Sten-
holm. It provides an option to serve
your business constituency and to not
compromise the civil rights of Ameri-
can workers.
Mr. WILLIAMS. Mr. Chairman, I
rise in opposition to the amendment.
My colleagues, let us be certain as to
what this amendment does. It allows
every employer in the United States to
require their employee to take a lie de-
tector test when that employee says
that there has been some incident or
other in that business.
Mr. GUNDERSON. Mr. Chairman,
will the gentleman yield on that
point?
Mr. WILLIAMS. I yield to the gen-
tleman from Wisconsin.
Mr. GUNDERSON. Mr. Chairman, I
am only going to ask the gentleman to
read lines 2 and 3. That is absolutely
not correct. "This amendment shall
not prohibit an employer from re-
questing an employee to submit to a
lie detector test." There is absolutely
no mandate in this amendment. That
Is very, very important, and I appreci-
ate the gentleman yielding.
Mr. WILLIAMS. Let me ask the
author of the amendment, in case I
misread his amendment, first, if he
disagrees that this covers every single
employee in the United States postin-
cident?
Mr. GUNDERSON. Absolutely.
Mr. WILLIAMS. It does cover every
employee in the United States?
Mr. GUNDERSON. If there is an in-
cident; and there is no random testing.
There has to be a specific crime.
Mr. WILLIAMS. In every industry
with no exceptions?
Mr. GUNDERSON. That is correct.
Mr. WILLIAMS. Then I have a
second question.
Mr. GUNDERSON. With one excep-
tion, if the gentleman will yield, with
one exception. We do net preempt any
State laws. Do not forget there are 41
States that have adopted their own
legislation.
Mr. WILLIAMS. Yes; that has been
true in every amendment that has
been offered, of course. So what the
gentleman is taking exception to is my
indication that an employer can man-
date the test to the employee?
The employee can say / will not take
the test. Does the gentleman's amend-
ment then protect that employee's
job?
Mr. GUNDERSON. Sure it does, be-
cause we do not allow the lie detector
to be the sole determinant. Therefore
a refusal to take a lie detector test
cannot be the basis on which one is
dismissed.
Mr. WILLIAMS. I do not see the lan-
guage where the gentleman disallows
an employer from firing an employee
who refuse to take the test.
Mr. GUNDERSON. The gentleman
can certainly see the lanttgage on sole
determinant because that is on page 2,
and it states that the test may not be
the sole basis for adverse employment
action. It also puts the burden of proof
on the employer.
Mr. WILLIAMS. I appreciate the
gentleman's explanation.
So let us understand it now, an em-
ployer can request, mind you, of their
employee, every employee in America,
request them to take the lie detector
test on any incident. The incident,
mind you, does not have to be report-
ed to the police. The incident, In fact,
does not have to involve loss or injury
to the employer, only potential loss or
injury.
So do my colleagues see what is hap-
pening? Every employer in America, if
this passes, can claim an incident has
happened. They do not have to report
It to the police. It does not have to
become an official act on the part of
the employer. They do not even have
to demonstrate that the incident took
place or that it created a loss to the
employer, but they can say we would
like you to volunteer. I admit the gen-
tleman has that in the amendment, we
would like you all to volunteer to take
this lie detector test.
Would my colleagues want to be the
one employee in America that does
not agree to volunteer?
This opens this bill as wide, wider,
than any amendment which has yet
been offered, and I urge my colleagues
to oppose it.
H 9581
The ClIATRAtIAN. The question Is on
the amendments offered by the gen-
tleman from Wisconsin Cienewa--
son/.
The question was taken; and the
Chairman announced that the noes
appeared to have it.
RECORDED VMS
Mr. GUNDERSON. Mr. Chairman, I
demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic
device, and there were---ayes 19Y, noes
220, not Voting 1.3? as follows:
INo11 No. 4111
AYES-197
Anderson Hansen Parris
Archer Hastert Pashayan
Badham Hatcher Patterson
Baker Hayes (LA) Petri
Ballenger Ref ley Pickett
Barnard Henry Porter
Bartlett Herger Pursell
Barton Hiler Quillen
Bateman Holloway Ravenel
Bentley Hopkins Ray
Beretner Houghton Regula
Bilirakis Hubbint Rhodes
Bliley Huckaby Ritter
Boulter Hughes Roberts
Broomfield Hunter Rogers
Buechner Hutto Roth
Bunning Hyde Roukema
Burton Inhofe Rowland (GA)
Byron Ireland Saiki
Callahan Jeffords Saxton
Campbell Johnson (CT) Schaefer
Chandler Jones (NC) Schuette
Chapman Jones (TN) Schulze
Chappell Kasich Sensenbrenner
Cheney Kolbe Shaw
Clarke Konnyu Shumway
Clinger Kyl Shuster
Coats Lagomaraine Sisisky
Coble Lancaster Skeen
Coleman (MO) Latta Slaughter (VA)
Combest Leath (TX) Smith (NE)
Cooper Lent Smith (TX)
Courter Lewis (CA) Smith, Denny
Craig Lewis (FL) (OR)
Dannemeyer Lightfoot Smith, Robert.
Darden Livingston (NH)
Daub Lloyd Smith, Robert
de la Garza Lott (OR)
DeLay Lowery (CA.) Solomon
Derrick Lujan Spence
DeWine Luken, Themes Spratt
Dickinson Lukens, Donald Stangeland
Dioduardi Lungren Blenheim
Dorgan (ND) Mack Stratton
Dornan (CA) MarIday Stump
Dreier Madigan Sundquist
Durbin Marlenee Sweeney
Edwards (OK) Martin (IL) Swindell
Emerson Martin (NY) Tallon
English McCandless Tauzin
Fawell McCollum Taylor
Fields McCurdy Thomas (CA)
Fish McEwen Thomas (GA)
Frenzel McGrath Upton
dallegly McMillan (NC) Valentine
Gallo Mica Vander Jagt
Gekas Michel Vollmer
Gingrich Miller (OH) Vneanovieh
doodling Molinari Walker
Gradison Montgomery Weber
Grandy Moorhead Weldon
Grant Morrison (WA) Whittaker
Gregg Nelson Wolf
Gunderson Nichols Wortley
Hall (OH) Nielson Wylie
Hall (TX) Oxley Young (FL)
Hammerschmidt Packard
NOES-220
Ackerman AuCoin Boland
Akaka Bates Bonier
Alexander Heileman Banker
Andrews Bennett Bernd
Annunzio Herman Homo
Anthony BevW Boucher
Applegate Bilbray Boxer
Aspin Boehlert Brennan
Atkins BOW Brooks
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H 9582
Brown (CA) Horton Price (IL)
Bruce Hoyer Price (NC)
Bryant Jacobs Rahall
Bustamante Jenkins Rangel
Cardin Johnson (SD) Richardson
Carper Jontz Ridge
Carr Kanjorski Rinaldo
Clay Kastenmeier Robinson
Coelho Kennedy Rodino
Coleman (TX) Kennelly Roe
Collins Kildee Rose
Conte Kleczka Rostenkowski
Conyers Kolter Rowland (CT)
Coyne Kostmayer Roybal
Crockett LaFalce Russo
Davis (IL) Lantos Sabo
Davis (MI) Leach (IA) Savage
DeFazio Lehman (CA) Sawyer
Dellums Lehman (FL) Scheuer
Dicks Leland Schneider
Dingell Levin (MI) Schumer
Dixon Levine (CA) Shays
Donnelly Lewis (GA) Sikorski
Dowdy Lowry (WA) Skaggs
Downey Manton Skelton
Dwyer Markey Slattery
Dymally Martinez Slaughter (NY)
Dyson Matsui Smith (FL)
Early Mavroules Smith (IA)
Eckart Mazzoli Smith (NJ)
Edwards (CA) McCloskey Snowe
Erdreich McDade Solara
Espy McHugh St Gertnaln
Evans McMillen (MD) Staggers
Fascell Meyers Stallings
Fazio Mfume Stark
Feighan Miller (CA) Stokes
Flake Miller (WA) Studds
Flippo Mineta Swift
Florio Moakley Synar
Foglietta Mollohan Tauke
Foley Moody Torres
Ford (MI) Morella Torricelli
Ford (TN) Morrison (CT) Towns
Frank Mrazek Traficant
Frost Murphy Traxler
Garcia Murtha Udall
Gaydos Myers Vento
Gejdenson Nagle Visclosky
Gibbons Natcher Walgren
Gilman Neal Watkins
Glickman Nowak Waxman
Gonzalez Oskar Weiss
Gordon Oberstar Wheat
Gray (IL) Obey Whitten
Gray (PA) Olin Williams
Green Ortiz Wilson
Guarini Owens (NY) Wise
Hamilton Panetta Wolpe
Harris Pease Wyden
Hawkins Pelosi Yates
Hayes (IL) Penny Ystron
Hefner Pepper Young (AK)
CONGRESSIONAL RECORD ? HOUSE November 4, 1987
Hertel Perkins
Hochbrueckner Pickle
Armey
Biaggi
Brown (CO)
Coughlin
Crane
Daniel
NOT VOTING-16
Duncan
Gephardt
Howard
Kaptur
Kemp
Lipinski
Owens (UT)
Roemer
Schroeder
Sharp
0 1835
Mr. TALLON changed his vote from
"no" to "aye."
So the amendments were rejected.
The result of the vote was an-
nounced as above recorded.
AMENDMENT OFFERED BY MR. BARTLETT
Mr. BARTLETT. Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. BARTLETT: On
page 7, line 1, strike "United States Govern-
ment," and insert in lieu thereof the follow-
ing: "United States Government, except for
the Congress of the United States insofar as
It is engaged in functions not directly relat-
ed to national security as determined by
such Congress,".
Mr. ACKERMAN (during the read-
ing). Mr. Chairman, I reserve the right
to object.
Mr. BARTLETT. Mr. Chairman, a
point of order. There is no unanimous-
consent request before the House.
Mr. ACKERMAN. Mr. Chairman, I
make a point of order that the amend-
ment is not germane.
The CHAIRMAN. The gentleman's
request will be addressed at the proper
time as soon as the Clerk has reported
the amendment.
The Clerk will read.
The Clerk concluded the reading of
the amendment.
Mr. ACKERMAN. Mr. Chairman, I
reserve a point of order on the amend-
ment.
Mr. BARTLETT. Mr. Chairman, I
offer an amendment that would essen-
tially unexempt Congress as an em-
ployer from the exemption that is in
this bill. This bill provides a prohibi-
tion of the use of polygraph examina-
tions in all cases for all employers in
private industry within this bill, in all
cases whether it is preemployment or
postemployment.
This bill however exempts Congress
as an employer and would say?the
irony of the bill today is that it would
say that even though we would pro-
hibit nursing home operators from
using a polygraph examination as a
screening tool or as a determinate
device, even though we would prohibit
other industries in other sensitive
areas from the same thing, such as
day care centers and others, we would
continue to permit Congress as an em-
ployer to use a polygraph in preem-
ployment screening and in post-em-
ployment-incident testing.
Now this issue came up earlier in the
debate and it was during the debate
that several examples of polygraphs
that are used by Congress as an em-
ployer were interjected into the
debate, at which point the sponsor of
the legislation, the very honorable
gentleman from Montana, announced
that he would support the inclusion of
Congress in this prohibition so as to
prohibit Congress also from using the
polygraph.
0 1900
The sponsor of the bill, however,
had, not included that prohibition of
Congress in his original bill. So the
House by its vote tonight will be able
to include the prohibition of the use
of the polygraph on Congress as an
employer, just the same as we would
prohibit all other employers in the
country from using the polygraph.
Mr. WALKER Mr. Chairman, will
the gentleman yield?
Mr. BARTLETT. I yield to the gen-
tleman from Pennsylvania, who origi-
nally brought this subject to the at-
tention of the House.
Mr. WALKER. Mr. Chairman, I
thank the gentleman for yielding.
Do I understand correctly now that
if we pass the bill in the form that it is
at present, we will be specifically
saying that while employers cannot
use polygraph techniques, we in Con-
gress will be able to continue to use
them just as we are now using them in
the Capitol Police force in order to
interview applicants and check their
applications? Is that the gentleman's
understanding?
Mr. BARTLETT, Mr. Chairman, the
gentleman is correct. Indeed we could
and no doubt would continue to use
the polygraph in the House restaurant
system, in our offices, and for commit-
tee staff and for other locations.
Mr. WALKER. Mr. Chairman, will
the gentleman yield further/
Mr. BARTLETT. I yield further to
the gentleman from Pennsylvania.
Mr. WALKER. So we will have made
a decision as a Congress that nursing
home operators cannot use it, but in
our House restaurant system or in our
Capitol Police force we can use it. It
will be one more case where the hy-
procrisy of Congress would be very evi-
dent, that we require of others that
which We are not willing to do on our
own?
Mr. BARTLETT. Mr. Chairman, the
gentleman is correct.
Mr. WALKER,. Mr. Chairman, I find
that most disturbing, and I find it very
disturbing based upon the discussion
that the gentleman mentioned, that
we would now have a point of order
raised against this amendment, be-
cause what we have now is another sit-
uation where, while during debate the
sponsors of the legislation indicate,
"Oh, yes, that sounds like a wonderful
Idea," they have this nice little gim-
mick of points of order, and the major-
ity then comes back and says, "Oh,
but I'm sorry, you can't offer that par-
ticular amendment."
I find it very disturbing that we will
find ways to make certain that Con-
gress is exempted from that which we
are requiring of the rest of the coun-
try.
Mr. BARTLETT. The gentleman is
correct. I have served on the Educa-
tion and Labor Committee now for 5
years, and what happens is that when
we have a bill in Congress that applies
to employers, either I or someone on
the committee offers an amendment
to apply that provision to Congress as
an employer, and that amendment is
ruled nongermane because it is not
within our committee's jurisdiction.
So we bring the bill onto the floor,
and when that amendment is within
the jurisdiction of the Congress as a
whole, then we are told, "No, you can't
offer that amendment because it has
to go through the committee." So it is
not germane in the committee because
it has not gone to the floor, and it is
not germane on the floor because it
has not gone to the committee.
The gentleman is correct. This is not
the first time that has happened. It is
a catch-22 kind of trick to make sure
that Congress exempts itself from all
the laws we pass for everyone else.
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November 4,1987 CONGRESSIONAL RECORD ? HOUSE
Mr. WALKER. Mr. Chairman, will
the gentleman yield further?
roma or ORDER
Mr. FORD of Michigan. Mr. Chair.
man, I have a point of order.
The gentlemen are engaged in their
own colloquy over there. They are not
addressing the point of order.
The CHAIRMAN. The gentleman
from Michigan [Mr. FORD) will state
his point of order.
Mr. FORD of Michigan. Mr. Chair-
man, the gentlemen are out of order.
They are not addressing the point of
order. They are have an interesting
discussion on the practices and proce-
dures of the House.
The CHAIRMAN. The gentleman
has failed to note that no point of
order has been interjected.
Mr. FORD of Michigan. Mr. Chair-
man, the point of order has been re-
served, and the gentleman was asked
to explain his language.
The CHAIRMAN. The gentleman
from Texas (Mr. BARTLrfT), the
author of the amendment., has yielded
to the gentleman from Pennsylvania
Waticse) during his 5-minute ex-
planation of the amendment.
Mr. FORD of Michigan. The Chair
does not recognize that there is a res-
ervation of a point of order pending at
this time?
The CHAIRMAN. The gentleman
from New York (Mr. ACKERMAN) is
standing on his feet with his reserva-
tion. Nevertheless he has not inter-
posed a point of order as yet. He has
merely reserved a point of order.
Mr. BARTLE'rr. Mr. Chairman,
given the hour, I yield back the bal-
ance of my time.
The CHAIRMAN. The gentleman
from Texas [Mr. BARTLETT) yields back
the balance of his time, and the Chair
will inquire, does the gentleman from
New York (Mr. Acimaisawl still wish
to reserve his point of order?
Mr. ACKERMAN. Mr. Chairman. I
will state my point of order.
The CHAIRMAN. The Chair will
hear the gentleman.
Ei 1905
Mr. ACKERMAN. Mr. Chairman, I
wish to pursue my point of order.
It appears to me that the amend-
ment is not germane, because it broad-
ens the scope of the coverage to Gov-
ernment employees: and at the
present time, the bill only covers the
private sector.
The CHAIRMAN. Has the gentle-
man concluded his statement?
Mr. ACKERMAN. It is as simple as
that, Mr. Chairman.
The CHAIRMAN. Does the gentle-
man from Texas wish to be heard on
the point of order?
Mr. BARTLEIT. Mr. Chairman, / do
wish to be heard on the point of order.
Mr. Chairman. I would cite in the
rules of the House in section 10.10 on
page 579 the rule of the House that
states the following:
"To a bill extending benefits to a
certain class of employees, an amend-
ment to extend those benefits to an
additional category of employees
within that class is germane"--is ger-
mane.
Mr. Chairman, my amendment takes
the bill which extends to a class of em-
ployees which is cited in the definition
in the bill on page 8, line 23, defining
the term "employer" as all employers.
The sponsor of the bill listed the
language directly out of the Fair
Labor Standards Act amendments
which includes all employers in this
country, public and private alike.
I then would extend under rule 10.10
an amendment to extend those bene-
fits to an additional category of em-
ployees within the class that is con-
tained in the bill.
Mr. Chairman. I have an additional
point as to why the amendment is in
order in addition to the first one in
this form; and that is that this amend-
ment is to section 6, the exemptions.
The bill has established a class of
employees of all employees, and then
exempted all Government employees
from that class.
I would then very narrowly remove a
portion of the exemption as the cate-
gory within the class that is being ex-
empted, so if the bill exempts all Gov-
ernment employees, then the Congress
can remove part of that exemption.
Either the exemption section is out
of order, or my amendment Is out of
order.
Mr. WALKER. Mr. Chairman, I wish
to be heard on the point of order.
The CHAIRMAN. Does the gentle-
man from New York wish to be heard
further on the point of order?
Mr. ACKERMAN. Mr. Chairman,
the operative words that we just heard
here were not employees but rather
"class of employees."
As described in the proposed legisla-
tion, the class pertains to private-
sector employees, thereby exempting
the entire class of public-sector em-
ployees.
Mr. WALKER. Mr. Chairman, I wish
to be heard on the point of order.
The CHAIRMAN. The gentleman
from Pennsylvania is recognized for
that purpose.
Mr. WALKER. Mr. Chairman, I
would hope the point of order would
not be sustained.
If the Chair will examine the bill,
the Chair will find in section 6 of the
bill that there is indeed an exemption
for all Government employees, and
this was done to make certain the bill
was sent only to the Committee on
Education and Labor.
On page 7 of the bill, the Chair
would find under part (2), (AXD any
Individual employed by, or assigned or
detailed to, the National Security
Agency or the Central Intelligence
Agency; and in the bill itself they
begin the process of defining certain
Government employees.
The only people who can be em-
ployed by or particularly detailed are
a class of certain Government employ-
ees, so in this bill we have defined e'er-
-
H 9583
tam n Government employees that we
single out for special treatment.
All the gentleman from Texas is
doing is singling out another group of
people who the gentleman is saying
should not be exempted, so therefore.
because the bill was broadened by the
language on page 7, it is this gentle-
man's interpretation that the Chair
should rule against the point of order
raised by the gentleman from New
York. because the bill already classi-
fies Government employees in the
same way that the gentleman from
Texas seeks to classify Government
employees.
The CHAIRMAN. Does the gentle-
man from New York wish to further
discuss the point of order?
Mr. ACKERMAN. Mr. Chairman, I
call for the ruling of the Chair.
The CHAIRMAN. The Chair will
inform the gentleman from New York
that that is within the discretion of
the Chair, and the Chair is most anx-
ious to get all aspects of the argu-
ments on the point of order.
Does the gentleman from Texas
wish to be heard further?
Mr. BARTLETT. Mr. Chairman, I
rely on the fairness of the Chair, and
the fairness of my fellow Texan.
What constitutes a class, I call to the
Chair's attention page 3, section 3,
lines 2 and 3 of the bill, in which the
bill clearly establishes the class of em-
ployers that are covered.
The class of employers that are cov-
ered is established by the following
one sentence:
"It shall be unlawful for any em-
ployer engaged in commerce or in the
production of goods for commerce
?
The bill then later narrows, or takes
that class and removes one category of
that class. Therefore, my amendment
Is hi order, because it applies to the
same class that the bill covers: that is,
any employer engaged in commerce or
In the production of goods for com-
merce.
/ rest on the Chairman's good Judg-
ment.
The CHAIRMAN. Does the gentle-
man from New York have any addi-
tional remarks by way of argument?
Mr. ACKERMAN. We await the de-
cision of the Chair.
The CHAIRMAN (Mr. GONZALEZ.).
The Chair has carefully evaluated the
arguments, having anticipated the
same, and wishes to state that with
reference to the citation that the gen-
tleman from Texas [Mr. Barrisrrl re-
ferred to, section 10.10 chapter 28 of
the Procedures In the House, the gen-
tleman did not emphasize, and the
Chair will read, "to a bill extending
benefits to a certain class of employ-
ees, an amendment to extend those
benefits to an additional category of
employees within that class is ger-
mane."
Obviously, the Chair cannot select a
narrow reading of one part of the WI,
as the gentleman from Texas has Just
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CONGRESSIONAL RECORD ? HOUSE November 4, 1987
done, but must consider the bill as a
whole.
In doing so, we find that both the
thrust of the bill, as well as the report
accompanying the bill explaining the
bill, clearly define the range and scope
of coverage to the private sector.
In the case of exemptions as put
forth on page 14 of the report, section
6 exempts all governmental employers,
whether Federal, State, local or a po-
litical subdivision.
This section consistent with this ex-
emption also provides a rule of con-
struction with respect to private-sector
employers doing counterintelligence or
intelligence work with the CIA, DOD,
DOE atomic energy defense activities,
FBI and NSA.
Clearly, the committee was trying to
stay within the limits of its jurisdic-
tion by attempting to legislate for the
private sector employer/employee,
and trying to stay within the limita-
tions imposed by prior legislation by
the Congress in which it had legislated
with respect to the Defense Depart-
ment, intelligence community and the
like, so therefore, the Chair is pre-
pared to rule that in light of the fact
that intentionally, or unintentionally,
the amendment of the gentleman
from Texas [Mr. Bawrixrr] would in
effect do by indirection what cannot
be done by direction, and therefore, is
not in keeping with Jefferson's
Manual and the citations following
the germaneness rules, as well as
Deschler's procedure, chapter 28, sec-
tion 709 which clearly prohibits broad-
ening of exemptions in cases such as
this. Therefore, the Chair is compelled
to sustain the point of order raised by
the gentleman from New York.
Mr. WALKER. Mr. Chairman, I ask
unanimous consent that the amend-
ment of the gentleman from Texas be
made in order.
Mr. ACKERMAN. Mr. Chairman, I
object.
Mr. WALKER. Could the Chair
state who made the objection?
Mr. ACKERMAN. Mr. Chairman, on
the basis that the decision was left at
the discretion of the Chair, and I
would not allow anything that I can
do while I am on my feet to impinge
upon the discretion of the Chair as
has been granted to the Chair, I will
object.
The CHAIRMAN. Objection is heard
to the unanimous consent request.
Are there other amendments to sec-
tion 6?
AMENDMENT OFFERED BY MRS. VI:MAROVICH
Mrs. VUCANOVICH. Mr. Chairman,
I offer an amendment.
The Clerk read as follows:
Amendment offered by Mrs. VIICANOVICH:
Page 8, after line 13, add the following new
subsection:
(d) EXEMPTION FOR FIANANCIAL INSTITII-
TI0N5.?(1) Subject to paragraph (3), this
Act shall not prohibit the use of a lie detec-
tor test or employees or prospective employ-
ees of a financial institution (as such term
is defined in section 5312(aX2) of title 31,
United States Code, and as further defined
In section 103.11(g) of title 31 of the Code of
Federal Regulations as in effect on the date
of the enactment of this Act).
(2) The exemption provided under para-
graph (1) shall not diminish an employer's
obligation to comply with?
(A) applicable State and local law, and
(B) any negotiated collective bargaining
agreement, which limit or prohibit the use
of lie detector tests on such employees.
(3) The exemption provided under this
subsection shall not apply if the results of
an analysis of lie detector charts are used as
the sole basis upon which an employee or
prospective employee is discharged, dis-
missed, disciplined in any manner, or denied
employment or promotion. Nothing in this
paragraph shall be construed to prohibit
the temporary reassignment of any employ-
ee for such period as is necessary for a
speedy and thorough investigation concern-
ing potential criminal activity with involves
the operations of the employer.
Mrs. VUCANOVICH (during the
reading). Mr. Chairman, I ask unani-
mous consent that the amendment be
considered as read and printed in the
RECORD.
The CHAIRMAN. Is there objection
to the request of the gentlewoman
from Nevada?
There was no objection.
Mr. MARTINEZ. Mr. Chairman, I
ask unanimous consent to limit the
debate on this amendment to 10 min-
utes, 5 minutes on each side.
The CHAIRMAN. Is there objection
to the request of the gentleman from
California?
Mr. DELAY. Mr. Chairman, I object.
The CHAIRMAN. Objection is
heard.
The gentlewoman from Nevada
[Mrs. V17CANOVICH] if; recognized for 5
minutes.
Mrs. VUCANOVICH. Mr. Chairman,
my amendment is simple?to exempt
financial institutions from restrictions
against the use of polygraph's, with
"financial institution" being defined as
under title 31 of the United States
Code, section 5312(a), subject to cur-
rency transaction regulations as fur-
ther defined under 31 Code of Federal
Regulations, part 103.
As we all know, the reporting re-
quirements for these financial institu-
tions are very strict, and failure to
comply or errors in reporting subject
the institution to severe civil and
criminal penalties. For this reason, it
Is critical that these financial institu-
tions be exempt from the ban against
polygraphs. Without the use of the
polygraph, they are at tremendous
risk. It is essential that employees who
handle large sums of money make the
transaction properly. There is a terrif-
ic burden on financial institutions, and
their accountability is vital.
One of the purposes of the strict
currency reporting regulations for fi-
nancial institutions is to help track
down drug traffickers. In the last con-
gress we reinforced this goal when we
passed the Omnibus Drug Enforce-
ment Act of 1986, which strengthened
the currency reporting provisions.
Financial institutions handle enor-
mous sums of money every day, and
many people have access to these
funds. Embezzlement and internal
fraud cause billions of dollars in losses
each year. In fact, the losses amount
to more than losses from robberies,
burglaries, and larcenies combined.
Use of the polygraph as an investiga-
tive tool is absolutely essential to
these entities.
This amendment is critical to con-
stituents in each and every one of our
districts. Do you have loan or finance
companies in your district? Is there a
Western Union office there? A jewel-
er? The polygraph can make the dif-
ference in whether or not they stay in
business.
The toll extracted due to internal
theft in these businesses is great.
These losses cause many businesses to
close their doors, resulting in unem-
ployment for many workers. The
losses are also reflected in higher costs
for consumers, as employers raise
prices on goods and services to recoup
their losses.
Unquestionably, there are places and
occasions where polygraph testing is
vital. This body officially acknowl-
edged its legitimacy in the last Con-
gress and again more recently when
we overwhelmingly endorsed the use
of polygraph testing for national secu-
rity purposes.
We cannot acknowledge the useful-
ness?the essential role of polygraph
testing as a legitimate and effective
tool for the Government to use, and
yet deny its credibility and efficacy for
the private sector. Obviously, the poly-
graph test has a proper place in both
Government and private business.
0 1920
Mr. WILLIAMS. Mr. Chairman, I
rise in opposition to the amendment.
Mr. Chairman, this is a rewrite of an
amendment that just a couple hours
ago the House rejected by a vote of
184 to 237, only this time the exemp-
tion is even wider than the exemption
that the House has already rejected.
The gentlewoman's amendment
refers to financial institutions as de-
fined in section 5312(a)(2) of title 31 of
the United States Codes. Let me share
with the House the definition of finan-
cial institutions under that section:
All insured banks, all commercial banks,
all trust companies, all private banks, all
thrift institutions, all brokers or dealers in
securities, all operators of credit card sys-
tems, all insurance companies, all pawn bro-
kers, all loan companies, all travel agencies,
all telegraph companies.
Those are the definitions of a finan-
cial institution.
The gentlewoman also refers to a
certain regulation of law which in-
cludes all casinos or gambling casinos.
This amendment would include every
person in the United States literally
who works in a financial institution,
including pawn brokers, insurance
companies, and people that make
credit cards.
This is an extremely broad amend-
ment and one which myself and the
committee wholeheartedly oppose.
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November 4, 1987 CONGRESSIONAL RECORD ? HOUSE
Mr. ST GERMAIN. Mr. Chairman, I
move to strike the last word. I rise in
opposition to the amendment.
Mr. Chairman, this amendment
when compared to the amendment
that was previously defeated that had
reference to federally insured finan-
cial institutions, that was bad enough,
but my God, here we are going to
impose this upon branches of foreign
banks. They are not federally insured.
I mean, I cannot believe the scope of
this amendment. Very frankly, in
keeping with the consideration of the
gentleman from Texas [Mr. BiunIzrri
earlier when he recognized the hour, I
would say this amendment is one
whose hour has not arrived and it
should be summarily dismissed, as was
done with the previous amendment re-
ferring to financial institutions.
Mr. Chairman, I would call for a
"no" vote on this amendment.
The CHAIRMAN. The question is on
the amendment offered by the gentle-
woman from Nevada [Mrs. VUCANO-
VICH].
The amendment was rejected.
AMENDMENT OFFERED BY MR. DELAY
Mr. DELAY. Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. DELAY: Page
8, after line 13, insert the following new sub-
sections:
(d) EXEMPTION FOR SERVICES CONDUCTED IN
PERSONAL EESIDENCES.?This Act shall not
prohibit the use of a lie detector test by an
employer whose business consists of provid-
ing services in private residences and whose
employees obtain access to such residences,
to the extent that?
(1) such use is consistent with?
(A) applicable State and local law, and
(B) any negotiated collective bargaining
agreement,
that explicitly or implicitly limits or prohib-
its the use of lie detector tests by such em-
ployer;
(2) the test is administered only to em-
ployees who have, or prospective employees
who would have, reasonable access to the
private residence of any customer of the em-
ployer; and
(3) the results of an analysis of lie detec-
tor charts are not used as the sole basis
upon which any employee or prospective
employee is discharged, dismissed, disci-
plined in any manner, or denied employ-
ment or promotion.
Mr. DELAY (during the reading). Mr.
Chairman, I ask unanimous consent
that the amendment be considered as
read and printed in the RECORD.
The CHAIRMAN. Is there objection
to the request of the gentleman from
Texas?
There was no objection.
[Mr. DELAY addressed the Commit-
tee. His remarks will appear hereafter
in the Extensions of Remarks.]
The CHAIRMAN. The time of the
gentleman from Texas has expired.
The question is on the amendment
offered by the gentleman from Texas
[Mr. DELAY].
The question was taken; and the
Chairman announced that the noes
appeared to have it.
RECORDED VOTE
Mr. DELAY. Mr. Chairman, I
demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic
device, and there were?ayes 147, noes
268, not voting 18, as follows:
(Roll No. 4121
AYES-147
Archer
Armey
Badham
Baker
Ballenger
Bartlett
Barton
Bateman
Bennett
Bereuter
Bilimit's
Bliley
Boulter
Broomfield
Bryant
Bunning
Burton
Byron
Callahan
Chandler
Chappell
Cheney
Coats
Coble
Combest
Craig
Dannemeyer
Darden
Daub
de la Garza
DeLay
DeWine
Dickinson
DMGuard'
Dornan (CA)
Dreier
Edwards (OK)
Emerson
Fawe11
Fields
Frenzel
Ga'testy
Gekas
Gingrich
Goodling
Gmdison
Grant
Hall (OH)
Hall (TX)
Hansen
Hastert
Hatcher
Hefley
Herger
filer
Holloway
Hopkins
Hubbard
Hunter
Hutto
Hyde
Inhofe
Ireland
Kasich
Konnyu
Kyl
Lagomarsino
Latta
Leath (TX)
Lewis (FL)
Lightfoot
Livingston
Lott
Lowery (CA)
Lu Jan
Lukens, Donald
Lungren
Mack
Madigan
Marlenee
Martin (IL)
Martin (NY)
McCandless
McCollum
McEwen
McMillan (Ne)
Meyets
Mica
Michel
Miller (OH)
Montgomery
Morrison (WA)
Myers
Nelson
Nichols
Oxley
Packard
Parris
Hanunerschmidt Pashayan
NOES-288
Ackerman Carper
Akaka Carr
Alexander Chapman
Anderson - Clarke
Andrews Clay
Annunzio clinger
Anthony Coelho
Applegate Coleman (MO)
Aspin Coleman (TX)
Atkins Collins
AuCoin Conte
Barnard Conyers
Bates Cooper
BeHenson Coughlin
Bentley Courter
Berman Coyne
Bevill Crockett
Bilbray Davis (IL)
Boehlert Davis (MI)
Boggs DeFazio
Boland Dellums
Bonior Derrick
Bonker Dicks
Borski Dingell
BOSCO Dixon
Boucher Donnelly
Boxer Dorgan (ND)
Brennan Dowdy
Brooks Downey
Brown (CA) Durbin
Bruce Dwyer
Buechner Dymally
Bustamante Dyson
Campbell - Early
Cardin Eckart
Pickett
Porter
Quillen
Ravenel
Ray
Rhodes
Roberts
Rogers
Roth
Rowland (GA)
Saiki
Saxton
Schaefer
Schuette
Schulze
Sensenbrenner
Shaw
Shumway
Shuster
Skeen
Slaughter (VA)
Smith (NE)
Smith (TX)
Smith, Denny
(OR)
Smith, Robert
(NH)
Smith, Robert
(OR)
Solomon
Spence
Stangeland
Stenholm
Stomp
Sundquist
Sweeney
Swindall
Tauzin
Taylor
Thomas (CA)
Thomas (GA)
Valentine
Vander Jagt
Vucanovich
Walker
Weldon
Whittaker
Wolf
Wylie
Young (FL)
Edwards (CA)
English
Erdreich
Espy
Evans
Faseell
Fazio
Feighan
Fish
Flake
Flippo
Florio
Foglietta
Foley
Ford (MI)
Ford (TN)
Frank
Frost
Gallo
Garcia
Gagdos
Galdenson
Gilman
Gitelman
Gonzalez
Gordon
Grandy
Gray (IL)
Gray (PA)
Green
Gregg
Marini
Gunderson
Hamilton
Harris
Hawkins Mfume
Hayes (IL) Miller (CA)
Hayes (LA) Miller (WA)
Hefner Mineta
Henry Moakley
Hertel Molinari
Hochbrueekner MoBohan
Horton Moody
Houghton Moorhead
Hoyer Morella
Huckaby Morrison (CT)
Hughes Mrazek
Jacobs Murphy
Jeff orcts Murtha
Jenkins Nagle
Johnson (CT) Natcher
Johnson (SD) Neal
Jones (TN) Nielson
Jontz Nowak
Kanjorski Oakar
Kastenmeier Oberstar
Kennedy
Kennelly
Kildee
Kleczka
Kolbe
Koller
Kostmayer
LaFalce
Lancaster
Lantos
Obey
Olin
Ortiz
Owens (NY)
Panetta
Patterson
Pease
Pelosi
Penny
Pepper
Leach (IA) Perkins
Lehman (CA) Petri
Lehman (FL) Pickle
Leland Price (IL)
Lent Price (NC)
Levin (MI) Pursell
Levine (CA) Rahall
Lewis (GA) Rangel
Lloyd Regula
Lowry (WA) Richardson
Luken, Thomas Ridge
MacKay Rinaldo
Manton Ritter
Markey Robinson
Martinez Rodin?
Matsui Roe
Mavroules Rose
Mazzoli Rostenkowski
McCloskey Roukema
McCurdy Rowland (CT)
McDade Roybal
McGrath Russo
McHugh Sabo
McMillen (MD) Savage
Biaggi
Brown (CO)
Crane
Daniel
Duncan
Gephardt
H 9585
Sawyer
Scheuer
Schneider
Schroeder
Schumer
Shays
Sikorski
SisiskY
Skaggs
Skelton
Slattery
Slaughter (NY)
Smith (FL)
Smith (IA)
Smith (NJ)
Snowe
Solari
Spratt
St Germain
Staggers
Stallings
Stark
Stokes
Stratton
Studds
Swift
Synar
Talton
Tauke
Torres
Torricelli
Towns
Traficant
Traxler
Upton
Viselosky
Voikmer
Walgren
Watkins
Waxman
Weber
Weiss
Wheat
Whitten
Williams
Wilson
Wise
Wolpe
Wortley
Wyden
Yates
Yatron
Young (AK)
NOT VOTING-18
Gibbons
Howard
Jones (NC)
Kaptur
Kemp
Lewis (CA)
Lipinski
Owens (UT)
Roemer
Sharp
Udall
Vento
0 1945
Mr. PORTER changed his vote from
"no" to
So the amendment was rejected.
The result of the vote was an-
nounced as above recorded.
Mr. MARTINEZ. Mr. Chairman, I
move to strike the last word.
Mr. Chairman, I yield to the gentle-
man from Texas [Mr. BARTLETT] for
the purposes of entering into a collo-
quy with the gentleman from Mon-
tana [Mr. WILLIAMS].
Mr. Chairman, the gentleman from
Montana [Mr. WILLIAMS] has seen a
copy of the colloquy. What I would do
is just read an abbreviated version of
the questions and answers, Mr. Chair-
man, and enter the entire colloquy
into the REcoEn at the conclusion of
that abbreviated version.
The CHAIRMAN. The Chair must
advise our distinguished colleague
from Texas (Mr. Bsamarrl that collo-
quies may not be entered in the
REcoan according to the rules during
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H 9586
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CONGRESSIONAL RECORD ? HOUSE November 4, 1987
deliberations in the Committee of the
Whole.
Mr. BARTLETT. Mr. Chairman, I
would inquire of the gentleman from
Montana and would like to ask him a
few questions concerning the meaning
of the term lie detector as used in the
bill in order to clarify what is and
what is not included in the definition.
I ask the gentleman if the definition
of lie detector as contained in the bill
before us would in any way be Inter-
preted to include drug testa within its
scope?
Mr. WILLIAMS. Mr. Chairman, will
the gentleman yield?
Mr. MARTINEZ. I yield to the gen-
tleman from Montana.
Mr. WILLIAMS. Mr. Chairman, I
answer ray friend from Texas by
saying that if his understanding is
that the \modified definition of Ile de-
tector does not include tests which are
administered to detect the presence or
absence of a drug in a persorfs body,
the gentleman is correct. As the gen-
tleman knows, the original definition
of lie detector was never intended to
include drug testing. Nevertheless, I
did not object to the amendment
added in committee which further
clarified that drug tests were not in-
cluded Within the scope of the mean-
ing of the term lie detector.
I am not expressing an opinion on
whether or not I am for drug testing,
but that Is not the purpose of this leg-
islation.
Mr. BARTLETT. I thank the gentle-
man.
The definition still includes the term
"mechanical or electrical devicea." Be-
cause of that, some have argued that
it could be broad enough to include
routine preemployment or employ-
ment physical examinations, thus pro-
hibiting most employers from adminis-
tering such examinations. Does the
definition include employment and
preemployment physical examina-
tions?
Mr. WILLIAMS. The answer is no.
Mr. BARTLETT. I thank the gentle-
man for the colloquy.
The CHAIRMAN. Are there further
amendments to section PP
If not. the Clerk will designate sec-
tion 7.
The text of Beaton 7 is as follows:
MM. T. ONFINMONS.
As used in this Act?
(1) the term "lie detector test" includes
any examination involving the use of any
polygraph, deceptograph, voice stress ana-
lyzer, psychological' stress evaluator, or any
other similar device (whether mechanical or
electrical) which is used, or the results of
which sae used, for the purpose of render-
ing a diagnostic opinion regarding the hon-
esty of an individual;
(3) the term "employer" includes an
agent, independent contractor, employee, or
any other person sating directly or *direct-
ly in the interest of an etardwer in Deletion
to an employee or prospective employee;
and
(3) the term "commerce"-has the meaning
provided by section XI)) of the Fair Labor
Standen* Aet at 1938 CIO Trig,e20300).
The CHAIRMAN. Are there any
amendments to section 7?
If not, the Clerk will designate sec-
tion 8.
The text of section 8 is as follows:
& EFFER^T/VE DATE
This Act shall take effect 6 months after
the date of its enactment.
AMENDMENT IN THE or A SUBSTITUTE
(memo BY MR. YOUNG OF FLORIDA
Mr. YOUNG of Florida. Mr. Chair-
man, I offer an amendment in the
nature of *substitute.
The Clerk read as follows:
Amendment in the nature of a substitute
offered W Mr. YOUND of Florida: Strike all
after the enacting dame and insert the fol-
lowing:
SHORT TITLE
Samson 1.- This Act may be cited as the
"Pollitraph Reform Act of 1987".
POLYGRAPH IIXAMMATIONS
Sec. 2.. The Pair Labor Standards Act of
1938(3613SC. et seq.) is amended
(1) by inserting above the heading of Sec-
tion 2 the following
"'TITLE I?FAIR LABOR STANDARDS":
(2) by striking out "this Act' each plane it
Wears (other than in the first section) - and
inserting in lieu thereof -this title"; and
(3) by adding at the ,exutthereof the fol-
lowing new titie:
-TITLE IT?POLYGRAPH
EXAM/NATIONS
"ustrranom on THE tag or POLYGRAPH
EXAMINATIORS
"Soc. MI. (a) Unless the examination is
given in accordance with section '202, no em-
ployer or any other person engaged in or af-
fecting commerce, nor any agent or repre-
sentative thereof may?
"(1) dieeetly or indirectly require, request,
suggest, permit, as abuse any employee,
agent, prospective empioyee, or prospective
agent to tate or submit to any polygraph
examination for any purpose; or
"(2) use, accept, or refer to the results of
any polygraph examination of any employ-
ee, agent, prospective inapioyee, or prospec-
tive agent for any purpose.
"(b) II. employer may discharge, dismiss,
discipline, or deny employment or promo-
tion to; or threaten to discharge, dismiss,
discipline, or deny employment or Promo-
tion to any employee, agent, prospective em-
ployee, or prospective agent who refuses, de-
clines, or fails to take or submit to any poly-
graph examination.
"(c) No employer may discharge, dismiss,
discipline, or deny employment or promo-
tion to; or threaten to discharge, dismiss,
discipline, or deny employment of promo-
tion to; an employee .or applicant based
solely on the opinions or conclusions of a
polygraph examiner reached by analysis of
the results of a polygraph examination of
the employee or applicant for employment
given in accordance with section 202. If a
polygraph examiner concludes, based on an
analysis of the results of a polygraph exami-
nation given in accordance with section 262,
that an employee or applicant for napkin-
ment was deceptive, the employee or appli-
cant for employment must be provided an
opportunity to rebut such conclusion.
"MINIIINSI STANDARDS FOR CONDUCTING
POLYGRAPH EXAMINATIONS
"Sue. 292. (a) The Secretary shall estab-
lish standards of conduct and qualifications
for persons who wish to conduct polygraph
examinations. The standards shall Include
the requirements set forth in subsections
(b) through (k).
"(b) Subject. to subaection (c),. no poly-
graph IMMILIIMMIOR shall be conducted by an
individual .uniers the individual?
"(1) is at least twenty one Yeats Of age:
"(2) is a citizen of the United States;
"(3)15 a person of good moral character;
"(4) has complied with an required laws,
rules and regulations established by the
Secretary and ether polygraph licensing
- and remise:ea anthorities . in the ,state in
which the examination is to be conducted;
arra
"(5)(A) has successfully completed a
formal training course regarding the Use of
-polygraphs that has been approved under
(4) above or bythe Secretary ; and
'"(B)kom torepleted ? polygraph examiner
internship of at lean six months duration
under the direct supervision of a polygraph
extustiner who has met the requirements of
this section.
"(c) The Secretary shall establish stand-
ards governing individuals who, on the, date
of enactment of the Polygraph Reform .Act
of 1987, are qualified to conduct polygraph
examinatiOns in accordance srlth applicable
State law. Saab stands:Mihail Mit be sitis-
fted merely became an individual has con-
ducted s spoitilic number of pelygrapitex-
aminations in the past.
"(dXL) When conducting a. polygraph ex-
amination, a polygraph examiner may not
ask a Imestion during tbo actual examina-
tion Unlessenclza question writingend
has been reviewed with the examinee prior
to such exaraktation.
"(2) A polygraph examiner may not in-
quire into?
"CA) religious beliefs or off/natio= ?
"(B) racial beliefs or opinons;
'IC) pointed beliefs or affniationic
"CD) sexual preferences or activities,
unless such information regarding sexual
preferences ?red-Wines is required byState
law. oris directly job-related; or
"(E) beliefs, affiliations, or opinions re-
garding unions or labor organizations.
"(e )(1) Each prospective examinee /then be
required to sign a notice before the begin-.
ning of each polygraph examinetion that
the examinee understands?
"(A) thentataithanir imposed on polygraph
examiners insubseetion (d);
"(B) that the examinee may terminate the
examination at any tinge; mid
'IC) that the. examinee has legal rights
and remedies 5 the polygraph comaination
Is not candueteA or She remits of the ex-
aminations are not used; in accordance with
this title.
"( 2) leach examinee shall be provided with
a written copy of any opinion or conclusion
rendered as a remit of the examination
upon written request-by The examinee and
upon payment of a reasonable lee.by such
examinee.
"U) A polygraph examiner may not, in
any calendar day, conduct and complete
more than ten polygraph examinations
which are subject to the requirements of
this title. A polygraph examination subject
to the limitation of this subsection shall
consist of a full and complete pretest inter-
view, recording of physiological chart data,
analysis of recorded chart data, and post-
test interview as required. The examiner
shall schedule not less than one hour to
conduct an examination of an examinee as
defined in thissubsection.
"(gX1) Each polygraph examiner shall?
"(A) me an instrument that records con-
tinuously. Visually, permanently. and simul-
taneously changes in cardiovascular, respi-
ratory, and electrodermal patterns as mini-
ratun instrumentation standards and
NB) bosom/4011km of deception Indicat-
ed or no deception indicated anon evahn-
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November 4, 1987
CONGRESSIONAL RECORD ? HOUSE
tion of changes in physiological activity or
reactivity in the cardiovascular, respiratory,
and electrodermal patterns on the poly-
graph charts.
"(2) A polygraph examiner may use an in-
strument that records additional physiologi-
cal patterns as specified in paragraph (1)
and may consider such additional patterns
in furnishing an opinion.
"(h) All conclusions or opinions of the
polygraph examiner arising from a poly-
graph examination shall?
"(1) be in writing and based solely upon
polygraph chart analysis;
"(2) contain no information other than
admissions, information, case facts, and in-
terpretation of the chart data relevant to
the purpose and stated objectives of the ex-
amination; and
"(3) contain no recommendation regarding
the prospective or continued employment of
an examinee.
"(1) A polygraph examiner shall maintain
all opinions, reports, charts, questions, lists,
and all other records relating to the poly-
graph examination for a minimum of two
years after administering such examination.
"(j) Any polygraph examiner conducting a
polygraph examination shall acquire and
maintain a minimum of $50,000 bonding or
an equivalent amount of professional liabil-
ity insurance coverage.
"(k) An employer may not use voice stress
analyzers, psychological stress evaluators or
any other similar device for the purpose of
detecting deception or verifying the truth of
statements. An employer may not use or
cause to be used any such device (as de-
scribed in this subsection) with any employ-
ee or prospective employee interview, or use
or cause to be used any recording which at
any time is subjected to analysis by any
voice stress analyzer, psychological strews
evaluator, or any other similar device, the
results of which are reported to any employ-
er.
"DISCLOSURE OF INFORMATION
"SEC. 203. (a) A person, other than an ex-
aminee, may not disclose information ob-
tained during a polygraph examination,
except as provided in this section.
"(b) A polygraph examiner may disclose
information acquired from a polygraph ex-
amination only to?
"(1) another polygraph examiner in pri-
vate consultation, the examinee, or any
other person or firm specifically designated
in writing by the examinee;
"(2) the employer that requested the ex-
amination;
"(3) a person or governmental agency that
requested the examination or others as re-
quired by due process of law who obtained a
warrant to obtain such information in a
court of competent jurisdiction; or
"(4) appropriately licensed or chartered
polygraph licensing boards or polygraph pro-
fessional associations upon written request
in connection with a complaint filed against
an examiner pursuant to a grievance proce-
dure.
"(c) An employer for whom a polygraph
examination is conducted may disclose in-
formation from the examination only to a
person described in subsection (b).
"WAIVER OF RIGHTS PROHIBITED
"Sac. 204. The rights and procedures pro-
vided pursuant to this title may not be
waived by contract or otherwise. No poly-
graph examiner may request an examinee
to waive any such right or procedure.
"ADMINISTRATION
"Sac. 205. The Secretary shall?
"(1) issue such rules and regulations as
may be necessary or appropriate for carry-
ing out this title; and
"(2) cooperate with regional, State, local,
and other agencies, and cooperate with and
furnish technical assistance to employers,
labor organizations, and employment agen-
cies to carry out this title.
"RECORDKEEPING, INVESTIGATIONS, AND
ENFORCEMENT
"Sm. 206. (a) The Secretary shall have
the power to make investigations and re-
quire the keeping of records necessary or
appropriate for the administration of this
title in accordance with the powers and pro-
cedures provided in sections 9 and 11.
"(bX1) This Act shall be enforced in ac-
cordance with the powers, remedies, and
procedures provided in sections 11(b), 16
(except for subsection (a) thereof), and 17,
and subsection (c).
"(2) Any act prohibited under section 201
or 202 shall be deemed to be a prohibited
act under section 15.
"(3) Amounts owing to a person as a result
of a violation of this title shall be deemed to
be unpaid minimum wages or unpaid over-
time compensation for purposes of sections
16 and 17, except that liquidated damages
shall be payable only in cases of willful vio-
lations of this title.
"(4) In any action brought to enforce this
title, the court shall have jurisdiction to
grant such legal or equitable relief as may
be appropriate to carry out this title, includ-
ing judgments compelling employment, re-
instatement or promotion, or enforcement
of liability for amounts deemed to be unpaid
minimum wages or unpaid overtime com-
pensation under this section.
"(5) Before instituting any section under
this section, the Secretary shall attempt?
"(A) to eliminate the practice or practices
alleged; and
"(B) to effect voluntary compliance with
the requirements of this title through infor-
mal methods of conciliation, conference,
and persuasion.
"(c)(1) Subject to the limitations stated in
section 207, any person aggrieved may bring
a civil action in any court of competent ju-
risdiction for such legal or equitable relief
as will effectuate the purposes of this title,
except that the right of any person to bring
such action shall terminate on the com-
mencement of an action by the Secretary to
enforce the right of such person under this
title.
"(2) In an action brought under para-
graph (1), a person shall be entitled to a
trial by jury with respect to any issue of
fact in any such action for recovery of
amounts owing as a result of a violation of
this title, regardless of whether equitable
relief is sought by any party in such action.
"(d)(1) No civil action may be commenced
by an individual under this section until
sixty days after a charge alleging a violation
of this title has been filed with the Secre-
tary.
"(2) Such a charge shall be filed?
"(A) within one hundred and eighty days
after the alleged violation occurred; or
"(B) in a case to which section 207 ap-
plies?
"(1) within three hundred days after the
alleged violation occurred; or
"(ii) within thirty days after receipt by
the individual of notice of termination of
proceedings under State law, whichever is
earlier.
"(3) On receiving such a charge, the Sec-
retary shall promptly?
"(A) notify all persons named in such
charge as prospective defendants in the
action; and
"(B) seek to eliminate any alleged viola-
tion by informal methods of conciliation,
conference, and persuasion.
H 9587
"(eX1) Sections 6 and 10 of the Portal-to-
Portal Act of 1947 (29 U.S.C. 255 and 259)
shall apply to actions under this title.
"(2) Por the period during which the Sec-
retary is attempting to effect voluntary
compliance with requirements of this title
through informal methods of conciliation,
conference, and persuasion pursuant to sub-
section (b), the statute of limitations as pro-
vided in section 6 of such Act shall be tolled,
but in no event for a period in excess of one
year.
"EFFECT OF STATE LAW
"Sac. 207. (a) It is the express intent of
Congress that the States may regulate poly-
graph examinations in a manner that is con-
sistent with the standards set forth in this
title.
"(b)(1) Any State or political subdivision
thereof which desires to develop and en-
force standards for the use of polygraphs by
employers and polygraph examiners may
submit an administrative plan to the Secre-
tary at such time, in such manner, and con-
taining or accompanied by such information
as the Secretary may reasonably require.
Such plan shall?
"(A) identify the State agency designated
as responsible for administering the plan;
"(B) describe the standards in the admin-
istrative plan governing polygraph examin-
ers and the use of polygraph examinations
by employers;
"(C) provide assurances through a written
certification that such standards, and the
enforcement of such standards, will be at
least as effective as the standards set out in
this Act; and
"(D) explain the manner in which the
standards in such plan will be administered
and enforced by the State agency to assure
compliance with this Act.
"(2) An administrative plan meeting the
requirements of subsection (b)(1) shall be
deemed approved by the Secretary.
"(3) The Secretary shall make a continu-
ing evaluation of each administrative plan
which has been approved. If the Secretary
finds that a plan is not being administered
in a manner that assures substantial compli-
ance with the standards of this Act, the Sec-
retary shall notify the State or political sub-
division thereof which submitted such plan
that approval of such plan is being with-
drawn and, upon receipt of such notice,
such plan shall cease to be in effect.
"(4) Review of a decision of the Secretary
to withdraw approval of an administrative
plan under this section may be obtained in
the United States court of appeals for the
circuit in which the State or political subdi-
vision thereof is located by filing a petition
for review with such court within thirty
days after receipt of the notice of withdraw-
al of approval.
"(5) The prohibitions contained in sec-
tions 201 and 202 of this title shall not
apply to any polygraph examiner or any
employer engaged in any business in or af-
fecting interstate commerce, or any agent or
representative of such polygraph examiner
or employer, in any State or political subdi-
vision which has adopted an administrative
plan pursuant to subsection (b).
"(c) Nothing in this title shall be con-
strued to require regulation by a State or to
prohibit a State from establishing a stand-
ard that prohibits an employer from?
"(1) taking any action against an employ-
ee or a prospective employee based on the
results of a polygraph examination; or
"(2) making an employee or prospective
employee submit to a polygraph examina-
tion against his or her will.
"(d)(1) Subject to paragraph (2), in the
case of an alleged violation of this title oc-
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CONGRESSIONAL RECORD ? HOUSE November 4, 1S87
ousting In a State that has an approved ad-
nshnstrativa plan regulating polygraph ex-
aminations in a manner that is at least as
stringent = the requirements of this title,
or that. has a standard reamed to in sub-
paragraph (cX8k. no snit may be brought
under section 200 sooner than sixty days
after psaceedinges have been commenced
under theState law orstandard. unless such
proceedings have been earlier terminated.
"(2) Such sixty-day period shall be ex-
tended to one hundred twenty days during
the first year after the effective date of
such State law or standard.
"(3.) For purposes of this subsection, a
State proceeding shall be deemed to have
coannensed at the thne it is deemed to have
contemns:ad under State law.
"(e) Nothing in this title shall be con-
strued to apply the proviaions of this title to
the United States Government, to any
Mend or agent of the United States Gov-
ernment. -to-any Slate- governmental saner
or agent et any State gereemnsental agency.
or to any law enforcement agency or agent
at any law =forcemeat agency.
DEIPINITIONS
"SEC. 208. As used in this title-
-(1) the term Voinnveree' has the meaning
provided by section 3(b);
"(2) the term 'employer' includes any
person acting directly or indirectly In the in-
terest if an employer in relation to an em-
ployee or prospective employee;
"(3) the term 'Secretary' means the Secre-
tary of Labor;
"(4) the term 'State' means each of the
several States, the District of Columbia, the
Commonwealth of Puerto Rico, and any po-
litical subdivn thereof;
"(5) the tens 'polygraph examination'
nese= any hdentew or examination of any
employee or prospective employee of an em-
Pierer?
"(A) involving the use of any polygraph,
deceptograpn or any other similar device
not otherwise psohibited by this Act which
Is used primarily for the purpose of detect-
ing deception. verifying the truth of state-
ments. or any similar purpose; or
"(R) which is subject to at any time to
analysis by any polygraph. deeeptograph
(GB81), or any other similar device the re-
suits of which are ever reported to any em-
ployer, and
"(8) the terns 'polygraph examiner' means
any person who conducts a polygraph exam-
ination as defined in paragraph (5) of this
section".
arracrrvs DATE
SEC. 3. (a) RAMA as provided in subsec-
tion (b), this Act and the amendments made
by this Act shall become effective six
months after the termination of the first
legislative session of each State that occurs
after the date of enactment of this Act.
(b) The Secretary of Labor shall Issue
such rules and regulations as may be neces-
sary or appropriate for carrying out title II
of the Pair Labor Standards Act of 1938 (as
added by section 2 of this Act) not later
than one hundred and eighty days after the
date of enactment of this Act.
Mr. YOUNG of Florida (during the
reading). Mr. Chairman, I ask unani-
mous consent that the amendment in
the nature of a substitute be consid-
ered as read and printed in the
RECORD.
The CHAIRMAN. Is there objection
to the request of the gentleman from
Florida?
There was no objection.
Mr. YOUNG of Florida. Mr. Chair-
man, this is a very serious substitute.
Last year it received a very large vote
In this Haase of 'Representatives. It is
presented to our corieagues today on
behalf of myself and the gentleman
from Georgia (Mr. DARDEN].
In an effort to save time, I asked
that we not read the full amendment
because It is lengthy. I might also tell
our colleagues. Mr. Chairman, that
the gentleman from Georgia (Mr.
Mutant and I had 11 other amend-
ments at the desk, but in an attempt
to accommodate the Members and to
keep the proceedings from going on
too late this everabig, we have agreed-
not to offer those amendments. But
we would like a serious discussion of
this very important substitute before
us today at this point.
The bill before us now, Mr. Chair-
man allows the use of polygraph by
the Federal Government. State gov-
ernment& local government, political
subdivisions of those local govern-
ments, eontractors to the FBI, those
who are involved in the security guard
business, those who are involved in the
drug business. It prohibits the use of
polygraph for those who work in nurs-
ing homes or financial institutions, or
those who are involved in a business
where some specific incident has taken
place, or in the delivery of home
health care or the delivery of other
home type services.
So on one hand this bill said it is OR
to use the polygraph; on the other
hand it says no, you cannot use the
polygraph.
0 2000
Now there is something just a little
Inconsistent about that argument. But
during most of this debate today, Mr.
Chairman, it has been suggested that
using the polygraph harassed people,
that it was used by quacks or that it
was a gadget that did not work and
the list of allegations and accusations
go on and on.
Well, Mr. Chairman, the substitute
that we present here this evening
solves every problem that was men-
tioned by every Member today in that
debate. Just for example, there is
nothing in the bill before us that pro-
tects the right of the employer or the
employee or the prospective employee
from being fired, dismissed or disci-
plined because he did not take a lie de-
tector test or a polygraph test if you
will.
Our substitute says that no employ-
er may discharge, dismiss, discipline or
deny employment or promotion to or
threaten to discharge, dismiss, disci-
pline or deny employment or promo-
tion to any employee, agent, prospec-
tive employee or prospective agent
who refuses, declines, or fails to take
or submit to any polygraph examina-
tion.
Mr. Chairman, this protection is not
in the bill H.R. 1212. Further it says
no employer may discharge, discipline,
dismiss, and so forth, or deny employ-
ment based solely on the opinions or
conclusions of a polygraph examiner.
Further. Mr. Chairman, this,
Darden-YOung Sailittitute Af+y. no elek?
ployer may dismiss, discipline, mid so
forth, any employee because et the
opinions or CDTICIUMERVI of a polygraph
examiner.'
Mr. Chairman, there is no such pro-
tection in H.R. 1212,
Mr. Cheigman. this substitute pro-
vides that an employee who feels that
he has been abased by the polygraph
examination is given an opportunity to.
rebut any conclusion made by anyone
in conjunction with that polygraph ex-
amination. There is no such protection
in the bill H.R. 1212.
Mr. Chairman, it has been said so
many times that this is a machine, it Is
a gadget. We concede that it to me-
chanical. The polygraph examination
is only going to be as good as the ex-
aminer who gives it. In our bill we pro-
vide that the examiner, amongst other
things, must comply with all laws,
Federal, State or local; must be li-
censed must have Completed a formal
training course regarding the use of
polygraphs which has been approved
by the Secretary; must have cemplet,
ed a polygraph examiner internship
for at least 6 months. It goes on, list-
ing the qualifications of the examiner.
No such protection in the Williams
bill, H.R. 1242.
Under that bill all of those people
that I mention, throe millions of
Americans who could be PolIgraphed
under H.R. 1212, could have it done to
them in a slipshod, or quickie fashion,
under their bill the polygraph exam
could be done without any kind of a
professional atmosphere and without
any legal protection for the person
being examined.
The Darden-Young substitute pro-
vides those protections Listen to this:
We include a bill of rights for the ex-
aminee and it includes such things as
the polygraph examiner may not in-
quire into religious beliefs or affili-
ations, racial beliefs, and so forth.
The CHAIRMAN. The time of the
gentleman from Florida (Mr. Yonne)
has expired.
(By unanimous consent, Mr. Yotrac
of Florida was allowed to proceed for 3
additional minutes)
Mr. YOUNG of Florida. Let me
repeat, a polygraph examiner may not
inquire into racial beliefs or opinions,
political beliefs or affiliations, sexual
preferences or activities, beliefs, affili-
ations, or opinions regarding unions or
labor organizations. Each prospective
examinee shall be required to sign a
notice before the beginning of each
polygraph examination that he under-
stands the limitations imposed upon
the examiner; he understands his
rights as an examinee; he understands
that he may terminate the polygraph
examination at any time and that he
has legal rights under this substitute,
If the polygraph examination is not
conducted in accordance with this
title.
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November 4, 1987 CONGRESSIONAL RECORD ? HOUSE
We provide that the polygraph ex-
aminer must schedule at least an hour
to conduct the examination. We pro-
vide that the questions to the examin-
ee must be in writing and must be dis-
cussed with the examinee prior to the
time that the polygraph actually takes
Place.
We make every one of these protec-
tions and more, and none of these pro-
tections, not the first one of these pro-
tections that I think you would all
want in the case of any polygraph, not
one of them is included in the main
bill, H.R. 1212 as presented to this
House.
There will be many polygraph
exams under this bill because the ex-
emptions are there. and I listed the
many exemptions. It will apply to mil-
lions of Americans. The exemptions
are there.
There win be polygraph exams in
America whether this bill passes or
not or whether this bill is amended or
not.
So if you are going polygraph, why
not do it right; let us do it with exam-
iners who know what they are doing,
who have been trained, who have been
educated and who meet certain crite-
ria under the law.
Second, Mr. Chairman, and more hn-
portantly let us write into the law pro-
tection for the examinee. He is going
to be examined under the Williams
bill. So why not make sure that he has
a bill of rights, the protection provided
by the Darden-Young substitute. That
is what we are asking. There is going
to be polygraph examinations in
America, no matter what we do on this
bill; pass it or do not pass it, you are
going to Polygraph. Let us make sure
it is done right. Let us protect the
people who are having the polygraph
done to them.
.
Mr. LAGOMARS INO. Mr. Chair-
man, will the gentleman yield?
Mr. YOUNG of Florida. I yield to
the gentleman from California [Mr.
LAGOKARSIN0].
(Mr. LACiOMARSINO asked and
was given permission to revise and
extend his remarks.)
Mr. LAGOMARSINO. I thank the
gentleman for yielding.
Mr. Chairman, I commend the gen-
tleman for his statement, I join in
strong support of the substitute. I
think it is a practical answer, a practi-
cal solution to this problem.
Mr. Chairman, I rise in support of the
Young-Darden substitute amendment to HR.
1212. This amendment Is ideMical to legisla-
tion I have cosponsored. KR- 1536, the Poly-
graph Reform Act.
While I recognize the potential for abuse
and actual abuse of the polygraph test and
the need to establish efts:dards forks use, I
do not believe that a total ban is the solution.
In fact, as we have seen from the language of
the bill and the string of amendments attempt-
ing to exempt various industries.a total ban is
not even possible. We ws inevitably laced
with the question of where to draw the tine.
Do we want to make use of the poiyarmit to
protect our money and not our children? Or
allow its use by companies authorized to man-
ufacture and distribute controlled substances
while not permitting it to be united in protect-
ing nursing home residents bola obese?
The substitute would allow business and in-
dustry to continue making use of the poly-
graph to protect their customers and assets,
while protecting those who are asked to take
polygraph exams to make sure that the tests
are administered kern and accurately. I be-
Neve it 4 the proper approach and urge my
colleagues to support the substitute.
Mr. YOUNG of Florida. I thank the
gentleman for his contribution and
support and I yield back the balance
of my time.
Mr. MARTINEZ. Mr. Chairman, I
move to strike the last word and rise
In opposition to the amendment.
Mr. Chairman, the hour Is late, the
debate is becoming redundant. I would
simply like to say that It scares me
when the gentleman from Florida says
we are going to have -polystraphing
whether we like it or not and we might
as well do it right. It has not been
proven yet that It can be done right.
. I would simply say this is the substi-
tute, the Awe substitute pretty much
as offered in 1985. We voted it down
then, we should vote it down now and
vote for the bill as presented with the
amendments accepted by the commit-
tee.
Mr. Chairman. I urge my colleagues
to resist the substitute amendment.
Mr. DARDEN. Mr. Chairman. I
move to strike the requisite number of
words.
(Mr. DARDEN asked and was given
permission to revise and extend his re-
marks.)
Mr. DARDEN. Mr. Chairman, first
of an I want to thank you for the fair
manner in which you have presided
over the Comnlittee of the Whole
today and to my colleagues for the
kind attention and consideration that
they have given our substitute as well
as the entire debate that we have
heard.
What Mr. Young from Florida and I
have done, quite frankly, we have
taken a different approach than has
been taken by the committee. We
think that we have built a better
mousetrap. We think that we have a
solution here to the problem of poly-
graph abuse. We content, as well as
the committee, that there have been
abuses of the polygraph in the past.
Certainly there have. But you do not
correct the abuses or eliminate the
abuses by eliminating the system
itself. So what we have done, Mr.
Chairman, is to provide and devise a
way to regulate the polygraph and to
eliminate the abuses of which the
committee coaoplaints. -
Mr. Chairman, what we have done is
we have provided regulations in two
particular are= First of all we have
provided that the scope of the exami-
nation will be limited. It will be limited
solely to issues clearly relevant to the
employment that is sought or the inci-
dent that is being investigated.
11 9589
Second, no person may be required
to take a polygraph examination. But If
that person does take a polygraph ex-
amination, that examination and its
contents will be explained to that
person before it Is taken numerous
times so there is no possibility for
abuse or even mispronouncement of
where the person was born, as one of
our colleagues said, would cause the
machine to go bad.
Well, in addition to providing certain
inherent rights to the person taking
the examination, Mr. Chairman, we
have also provided in our bill some
vary strict requirements for the exam-
iner. The examiner must meet certain
raininnun Federal requirements. But
In addition to that, btr- Chstrelon? we
have not preempted State law in any
way. If your State does prohibit the
use of the Do/strap/1 in the private
sector then your State will not be af-
fected because you have the right in
your State to go beyond the minimum
Federal standards that we set forth
here today.
Let me touch on several differences
between our approach and that of the
committee bill. First of all, the com-
mittee bill constitutes a total ban
While our substitute represents
thoughtful regulation. Our substitute
recognizes the problems of huge losses
suffered each year by merchants and
manufacturers and the need for them
to have tools for screening employees
In positions of trust.
Our substitute recognizes that the
Polygraph can be used to vindicate the
innocent as well as to indicate the
guilty. I think perhaps WS is some-
thing that has been overlooked and
needs to be emphasized over and over
again.
Mr. SWINDALL. Mr. Chairman, will
the gentleman yield?
Mr. DARDEN. I yield to the gentle-
man from Georgia (Mr. 8WIDIDALL3
Mr. SWINDALL. I thank the gentle-
man for yielding.
Mr. Chairman, I would like to ask
the gentleman about one of his com-
ments because it concerns me greatly.
Is the gentleman sayng that in the
event an employee, unless they fall
into one of the exempted areas under
the committee bill, if an employee de-
sires to have a lie detector test to vin-
dicate himself but under the commit-
tee's bill that type of activity would be
prohibited?
Mr. DARDEN. The gentleman is ab-
solutely correct. An innocent person
can be breaking the door down to take
a polygraph examination too, assert
his or her innocence and would be pro-
hibited under the committee bill from
proclaiming their innocence, shouting
from the rooftops.
Mr. SWINDALL. Mr. Chairman, as
the gentleman knows I used to be in
the furniture business back In Geor-
gia. On occasion I would hire convict-
ed felons because I for one think that
folks can make mistakes but they
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H 9590 CONGRESSIONAL RECORD ? HOUSE
ought not to be preempted from the
job market afterward.
This is a true story. One of the con-
victed felons whom I hired was work-
ing at our store at the time of the
theft loss that was obviously internal.
I came to that individual and said, "I
want you to know that a number of
your fellow employees are saying you
did it." And I said, I asked him if he
would mind submitting to a polygraph
test. And he said not only would he
not mind, he wanted to because he felt
very strongly about his character and
he also knew that if he lost that job
he would go back into the slimmer be-
cause it was absolutely a condition to
his parole that he have a job.
So he went and he took the poly-
graph and it did vindicate him.
My point is that without the gentle-
man's substitute that type of opportu-
nity for individuals that would other-
wise be preempted most likely from
finding a job and having a second
chance, would really be hurt very
badly.
So I want to first of all commend the
gentleman on the substitute because I
think it does strike a balance between
some of the concerns that individuals
have with respect to rights of privacy
and the professional quality of these
examinations.
The CHAIRMAN. The time of the
gentleman from Georgia (Mr. DARDEN]
has expired.
(By unanimous consent, Mr. DARDEN
was allowed to proceed for 1 additional
minute.)
Mr. DARDEN. I yield further to the
gentleman from Georgia (Mr. SWIN-
DALL].
Mr. SWINDALL. I thank the gentle-
man for yielding further.
Moreover, it recognizes the very im-
portant need in the marketplace to
protect workers who would desire to
vindicate their good name because of
their past circumstances in the sense
that they would be the first suspected
and they will be basically stripped of
the opportunity to show that they
were not the person that was guilty
and unquestionably suspicion would be
theirs.
Mr. DARDEN. I thank the gentle-
man for dramatizing the point for me
and demonstrating it so well.
I will say in conclusion, my col-
leagues, everywhere I go throughout
this district, I ask people what they
want me to be concerned about and
how they want to be represented.
They say "do one thing for us: Leave
us alone, get the Government off our
backs."
0 2015
Mr. Chairman, this is one more ex-
ample of this Congress and this House,
I truly believe, getting on the backs of
our constituents and private business
in general. As far as I am concerned, if
the polygraph is good enough for the
U.S. Government, for the State of
Georgia and local governments, it is
good enough for the private sector.
Mr. THOMAS of Georgia. Mr.
Chairman, I move to strike the requi-
site number of words.
Mr. Chairman, H.R. 1212 would es-
sentially outlaw the use of the poly-
graph in most American businesses?
except those few that might gain an
exemption from the ban. During the
debate on this issue, others have
talked about how the ban would hurt
businesses and consumers and about
the unfortunate double standard that
the Williams bill would create. I would
like to talk briefly about how it could
hurt American workers.
If we were to ban the polygraph,
companies would change their policies
to adapt to the ban. Instead of using
the polygraph as a screening device,
they would most likely rely more ex-
tensively on background checks, em-
ployment histories, and so forth.
Those who oppose the use of the poly-
graph, in fact, advocate these alterna-
tive methods of personnel screening.
But let's think for a moment about
the long-term consequences of this
change. Employers who could not use
the polygraph would hire workers
with long and verifiable work histo-
ries. They would increasingly look for
people with strong family ties, with
ties to their community, and give even
greater preference to those with a
proven track record.
This policy would enable most com-
panies to continue to hire competent,
reliable workers, although the screen-
ing process may be more expensive.
For many companies, a polygraph ban
would not erode their workforce. It
would be business as usual for most
firms.
But this change in hiring policies
could have serious consequences for a
major and especially vulnerable seg-
ment of the work force?those who are
trying to work themselves out of pov-
erty, and those just enteming the job
market. These are the very people
who can least tolerate another barrier
to employment.
Those who would suffer the most
from a polygraph ban would be those
who have just moved to another city
to search for opportunity, those who
have had a rocky employment histo-
ry?perhaps through no fault of their
own?and those who are having a
tough time breaking into the job
market. It seems to me that it would
be a terrible mistake for us to pass a
bill that would make it even harder
for them to get jobs.
We have a responsibility to look
down the road at the consequences of
a total ban on the polygraph. I believe
that if we pass the Williams bill, we
may be kicking many of our citizens
off the employment ladder, just as
they are trying to work their own way
up.
For these reasons, I cannot support
H.R. 1212, and urge consideration of
the Darden-Young substitute.
Mr. LIVINGSTON. Mr. Chairman. I
move to strike the requisite number of
words, and I rise in opposition to H.R.
November 4, 1987
1212 and in support of the Young-
Darden substitute.
(Mr. LIVINGSTON asked and was
given permission to revise and extend
his remarks.)
Mr. LIVINGSTON. Mr. Chairman,
in the interest of expediency, since
time is very valuable to the Members,
I will not use all of my time. I would
simply say that I believe the Young-
Darden substitute is a very reasonable
compromise to the approach that has
been taken here today. H.R. 1212 is a
bill whose time has not come.
Mr. Chairman, I rise in opposition to H.R.
1212 and in support of the Young-Darden
substitute.
I oppose and testified against legislation to
ban the polygraph last year, and I continue to
oppose it. because I believe that such legisla-
tion would deprive private employers of a very
important tool in screening out thieves and
criminals from various specialized places of
employment. Polygraph tests are needed.
They are effective, and they protect banks,
child-care centers, and nuclear powerplants.
Businesses of all kinds need the polygraph to
help them hire trustworthy people and combat
an estimated annual loss of $40 billion from.
theft.
Obviously polygraphs work and clearly Con-
gress knows they work. Time after time the
House has voted to allow Government &gen-
cies to use the polygraph. Just this year we in- .
cluded by a vote of 345-44 a provision in the
1987 defense authorization bill which permits
random polygraph tests of DOD employees
and contractors with access to sensitive infor-
mation. We also passed the State Department
authorization bill 414-0 in June which allows
polygraph testing of Embassy security person-
Department of Defense counterintelligence
personnel have identified seven cases in the
past 2 years in which polygraph examinations
uncovered information about potentially seri-
ous national security breaches that would
have never come to light without such a pro-
gram. For instance, a polygraph exam of a de-
fense contractor employee applying for spe-
cial access clearance revealed that he has
previously been involved in a scheme to
smuggle U.S. high technology equipment to
the Eastern bloc.
In case after case there is evidence to
show that the polygraph is critical to efforts to
protect our Nation's security interests from es-
pionage. During the Defense Appropriations
Subcommittee's investigation into the Walker
spy ring Members asked witnesses what could
be done to prevent such activities in the
future. Admiral Butts, who was the Chief of
Naval Intelligence at the time, told us that
random polygraph testing would be the most
effective deterrent That Is why Representa-
tive BR1 YOUNG of Florida added a provision to
the defense authorization bill that would allow
random testing. If the possibility of polygraph
testing is such an important deterrent factor to
the Department of Defense, how can we then
disallow its use?and thus its deterrent effect
'on thefts and dishonesty in the private sector.
So we've acknowledged that our national
security needs require the protection provided
by polygraph exams, yet why are we now
saying that our private citizens are not entitled
to the same protection? That's foolish. It
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CONGRESSIONAL RECORD ? HOUSE H 9591
would be horribly inconsistent to approve the
use of the polygraph for the Government, and
then prohibit it for the private sector. Yet
that's what we're about today.
Opponents of the polygraph argue that poly-
graph examiners are poorly trained and that
the results are inaccurate. However, the Poly-
graph has consistently proven accurate 85 to
95 percent of the time, and that's why we
want our intelligence gathering agencies to
use it
In my 8 years as a criminal prosecutor in
Louisiana, the polygraph proved to be a valua-
ble investigative tool upon which we raked.
There were times when charges were actually
dropped because of a defendant's perform-
ance on a polygraph. The exam is valuable, it
not only helps in catching crooks, but in clear-
ing innocent people as well
It is in everyone's interest that polygraph re-
sults be as accurate as possible. In Louisiana,
laws have been passed which establish guide-
lines for the training and licensing of poly-
graph examiners, set requirements for the
equipment used in the test and institute pro-
tections for the rights of those taking the
exam. In fact, according to the U.S. Chamber
of Commerce, 34 States and the District of
Columbia now regulate the practices of poly-
graph examiners. Although I do not see any
purpose in involving the Federal Government
in this area at all, it would be better to pass
legislation modeled on current State law than
to simply outlaw the use of the polygraph in
the private sector. That is why I support the
Young-Darden substitute amendment.
The substitute allows private-sector employ-
ers to use polygraphs provided they follow
certain guidelines. It protects examiners by
making It igegal for examinees to ask ques-
tions concerning religious, racial, political or
social beliefs. Further, it specifies that poly-
graph results may not be used as the sole
basis for an employment decision. There are
also provisions allowing relief in Federal court
for arty improper use of the polygraph. This
substitute allows the private sector to protect
Itself, and us. from dishonest employees, but
at the same time it preserves the rights of all
employees from possible polygraph abuses. lt
is a fair and reasonable alternative to H.R.
1212.
Mr. Chairman. I urge the Members to sup-
port the Young-Darden substitute and oppose
H.R. 1212.
Mr. ROWLAND of Georgia. Mr.
Chairman. I move to strike the requi-
site number of words.
(Mr. ROWLAND of Georgia asked
and was given permission to revise and
extend his remarks.)
Mr. ROWLAND of Georgia. Mr.
Chairman, there has been consider-
able discussion about the degree of ac-
curancy of polygraph examinations.
Even the most ardent believer in
polygraphs will concede that they are
not infallible. Unfortunately, the re-
sults of polygraph tests have some-
times been treated as absolute fact. It
is this kind of abuse that the Young-
Darden substitute seeks to eliminate.
At the same time, it is my under-
standing that over the past 10 to 15
years important strides have been
made in the training of examiners, in
the sophistication of the testing, and
in the quality of the equipment. Poly-
graph testing is more reliable as an in-
vestigative tool today than it has been
in the past.
As a physician, I am very aware of
the usefulness of electrocardiograms
In the diagnosis of a heart condition.
But as every physician knows, an elec-
trocardiogram does not tall every-
thing. While it is an important tool, it
is not the only one which is used to de-
termine the cardiac status of a patient.
Many other tests are also used.
The same is true of a polygraph test.
It can be helpful if properly used in
conjunction with other investigative
procedures.
However, given the fact that Poly-
graph testing is not totally accurate, it
is important that something be done
to prevent the abuses. Among other
things, the Young-Darden substitute
would prohibit any employer from
making a decision about an employee
based solely on the results of a poly-
graph test. Other investigative tech-
niques would need to be used to deter-
mine whether any action should be
taken.
I believe that employees deserve pro-
tection against the improper use of
polygraph examinations. I do not be-
lieve that an absolute ban on poly-
graphs is the way to provide that pro-
tection. In my view, Mr. Chairman,
the Young-Darden substitute is an ap-
proach that all sides on this issue
should be able to support.
Mr. HUTTO. Mr. Chairman, I move
to strike the requisite number of
words.
(Mr. HUTTO asked and was given
permission to revise and extend his re-
marks.)
Mr. HUTTO. Mr. Chairman. I rise in
support of the Darden-Young substi-
tute to the Employee Polygraph Pro-
tection Act. My State of Florida first
passed laws regulating the polygraph
Industry in 1967. OVer that time. the
State has developed a system of strin-
gent regulations that allow both busi-
ness and labor access to the polygraph
while minimizing instances of abuse.
Florida's former secretary of state.
George Firestone, presented testimony
to the last Congress detailing our
State's experience with the polygraph.
I would like to share some of his ob-
servations with you.
Last year, there were 519 fully li-
censed polygraph examiners in Flori-
da, conducting an estimated 300,000
tests a year. State law requires that
each of those 300,000 individuals be
told that they have a right to file a
complaint with the secretary of state,
yet only one validated complaint
aginst an examiner was filed all year.
This evidence would lead me to con-
clude that polygraph abuse is neither
widespread nor prevalent in our State.
Furthermore, there is evidence to
show that the polygraph can benefit
both employers and employees.
It benefits our State in that those
who are qualified to work can find
jobs. And It certainly benefits our citi-
zens when they are protected by the
information from polygraph tests
from persons who would use their jobs
to commit crimes.
In Florida, the polygraph fulfills
demonstrated public need to employ-
ers, employees, and customers. One of
the reasons it serves us so well is be-
cause we enforce a strict set of stand-
ards, restrictions, and practices regard-
ing the polygraph.
I support the Young-Darden substi-
tute because it respects my States's
right to use the polygraph under the
regulations that it determines to be
appropriate. If Congress were to
outlaw polygraph testing in the pri-
vate sector, the Federal Government
Would be denying our citizens jobs,
stripping our businesses of an impor-
tant tool they need to operate, and in-
truding in our legitimate right to
manage our own affiars.
I urge my colleagues to join with me
In supporting the Young-Darden
amendment.
Mr. RAY. Mr. Chairman, I move to
strike the requisite number of words,
and I rise in support of the Darden-
Young substitute.
(Mr. RAY asked and was given per-
mission to revise and extend his re-
marks.)
Mr. RAY. Mr. Chairman, I wish to
compliment the gentleman from Geor-
gia (Mr. DARDICK1 and the gentleman
from Florida Mr. Yomml for their in-
terest in business. These gentlemen
are probusiness. They have dug into
the situation that is affecting busi-
ness. They have come down on the
side of being probusiness, and I think
they have done a very good job in
crafting and bringing together this
substitute.
Mr. Chairman, today we are consid-
ering legislation that those on both
sides of the issue agree would make
sweeping changes in the polygraph in-
dustry and dramatically affect dozens
of other industries that rely on the
polygraph.
While all of us would agree that
polygraph abuse should be stopped,
many of us nonetheless believe that
H.R. 1212, which outlaws the poly-
graph in many private sector indus-
tries, has serious flaws. It sets up a
double standard between the Govern-
ment and private industry. We should
Pass legislation that takes a consistent
approach to polygraph regulation.
Banning the polygraph in many pri-
vate sector industries while allowing
its use by Government agencies is in-
consistent with Democratic principles.
Government officials at all levels?
from the CIA to local police forces?
have said that the polygraph can be
an essential tool hi investigations,
often providing the key to solving a
case. The Congress has passed legisla-
tion to require expanded use of the
polygraph by the Defense Department
to protect our national security. If the
polygraph is useful to them, it must be
useful for private employers as well.
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Mr. DARDEN. Mr. Chairman, will
the gentleman yield?
Mr. RAY. I yield to the gentleman
from Georgia.
Mr. DARDEN. Mr. Chairman, does
the gentleman realize that if this com-
mittee bill is adopted, we would not
even be able to administer a polygraph
test to people who go to work in day
care centers before they go to work
there?
We are told that 52 percent of Amer-
ica's mothers with children of the age
of 6 are in the work force, and many
of these children are taken to day care
centers and nursery schools every day
while their mothers work. Does the
gentleman agree that we have a re-
sponsibility to protect these children
from the possibility of abuse by unfit
employees in these child day care cen-
ters?
Mr. RAY. Mr. Chairman, I do agree
with the gentleman from Georgia. I
also would make an inquiry of the gen-
tleman, who is, I believe, a former dis-
trict attorney in Cobb County, GA.
Mr. DARDEN. That is correct.
Mr. RAY. I understand the gentle-
man had many cases dealing with
child abuse in day care centers, or at
least the gentleman knew of many
cases?
Mr. DARDEN. Yes. And in addition
to that, if you look at the newspapers
over the last several years, there have
been rampant examples of abuse by
employees of day care centers. All we
need to do is call the Congressional
Research Service. We found about 40
or 50 such examples just in the past
year.
We believe this is one more reason
why we must have the use of the poly-
graph to prohibit people such as this
from looking after our children under
the guise of caring for them.
Mr. RAY. I know the gentleman is
aware of this problem, and so am I.
The most precious commodity we have
Is our children. Certainly we need to
do everything we can to protect these
children in day care centers.
Mr. DARDEN. Mr. Chairman, I
thank the gentleman.
Mr. RAY. Mr. Chairman, in an arti-
cle in the Labor Law Journal, a noted
polygraph authority said "If ? ? ? the
test is reliable enough to aid in pro-
moting public safety by keeping dis-
honesty among public employees in
check, it must logically follow that pri-
vate employers be allowed to impose
Its use as well."
Over the past several decades, we
have passed hundreds of bills requir-
ing business and industry to protect
the health and welfare of their cus-
tomers. We require them to accept
this responsibility, and we give citizens
the right to take them to court if they
violate it.
The business and industrial manager
serves at the first line of defense in
protecting the public from abuses of
products, services, and employees. It is
in the employer's and the public's in-
terest for businesses to monitor their
inventories and to screen personnel so
that they can detect, correct, and
avoid problems before they cause
damage or injury. A company's inter-
nal controls provide the quickest, the
most economical, and the safest solu-
tion to many of these problems.
This brings me to my second point:
not only is the double standard wrong,
but so is the triple or quadruple stand-
ard that would be created if some busi-
nesses were allowed to use polygraph
testing and not others.
I believe it is essential that we con-
sider the needs of industries which use
the polygraph to protect the health,
safety, and resources of millions of
Americans. It is essential that we
make sure that the legislation we de-
velop addresses their concerns in an
appropriate manner. While we have a
responsibility to our constitutents to
protect them from abusive polygraph
exams, we also must make sure that
we don't pass a bill that disregards the
legitimate needs and concerns of em-
ployers. I believe it is possible to strike
a balance between the two.
The Young-Darden substitute sets
up guidelines for those States that
have either weak or no polygraph leg-
islation. It sets standards which ensure
not only that examinees are protected
but which require tests to be thorough
and given by competent examiners.
This legislation recognizes the prac-
tical needs of American business and is
responsive to the potential harm that
can be done to examinees by improp-
erly trained testers or others who
abuse test results. It recognizes that
the States are best able to consider all
of these needs and to find the balance
that works best for their citizens,
using guidelines that we establish at
the Federal level.
The polygraph has a role to play as
one of the tools used by companies in
internal investigations, but the poly-
graph must be administered fairly and
accurately if it is to be effective. The
Young-Darden substitute would reg-
ulate the polygraph industry to pro-
tect employees while serving American
business by improving the reliability
of polygraph exams.
Mr. JEFFORDS. Mr. Chairman, I
move to strike the requisite number of
words.
(Mr. JEFFORDS asked and was
given permission to revise and extend
his remarks.)
Mrs. VUCANOVICH. Mr. Chairman,
will the gentleman yield?
Mr. JEFFORDS. I am happy to yield
to the gentlewoman from Nevada.
(Mrs. VUCANOVICH asked and was
given permission to revise and extend
her remarks.)
Mrs. VUCANOVICH. Mr. Chairman,
I rise in support of the Young-Darden
substitute and urge its adoption. This
Is a good substitute. It is a good bal-
anced bill.
Mr. Chairman, proponents of H.R. 1212 say
that polygraphs don't work; that they aren't re-
liable. Well, Mr. Chairman, these same propo-
nents of H.R. 1212 have already acknowl-
edged the legitimacy and efficacy of polygraph
testing in some stituations because of the ex-
emptions written into this bill. As we know,
H.R. 1212 proposes to ban polygraph testing
by all private employers, except for: First, all
Federal, State and local government employ-
ers; and second, private employers engaged
in governmental intelligence or counterintelli-
gence work. The bill specifically exempts em-
ployees of the CIA, the National Security
Agency, the FBI, and DOD from the ban.
In addition, this body has already officially
acknowledged how essential polygraph testing
is for national security purposes. In the last
Congress, and again more recently, during
consideration of the Defense Authorization
bill, we overwhelmingly endorsed the use of
polygraph testing. Unquestionably, there are
places and occasions where polygraph testing
is vital.
So, are we to say that polygraph tests are
good and essential; and that a polygraph test
is a legitimate tool for use in the public sector,
but it is not reliable for the private sector? Is
this another double standard Congress pre-
sumes to impose? We cannot acknowledge
the usefulness?the essential role of poly-
graph testing as a legitimate and effective tool
for the Government to use, and yet deny its
credibility and efficacy for the private sector.
Obviously, the polygraph test has a proper
place in both Government and private busi-
ness.
Yes, abuses can and do occur; however,
the abuses occur when there are no regula-
tions?when there are no standards for train-
ing, and when there are no guidelines for con-
ducting the tests. The answer is to eliminate
the abuses of polygraph testing, not the uses
of polygraph testing. Banning the use of the
polygraph is throwing the baby out with the
bath water.
The Young-Darden substitute properly ad-
dresses the need for regulating the use of
polygraph testing and ensuring that examiners
meet certain standards, while at the same
time guaranteeing the rights of individuals
being examined. This is where our focus
should be?recognizing the essential role of
polygraph tests, while at the same time recog-
nizing the need to provide uniform, strict
standards.
The Young-Darden substitute is a balanced
bill?a reasonable measure that protects both
the employee/prospective employee, and the
employer. It is a moderate alternative which
would allow the private sector the same pro-
tections afforded the Government. I urge my
colleagues to vote for the Young-Darden sub-
stitute.
Mr. JEFFORDS. Mr, Chairman, I do
not intend to take much time, but I do
want to clarify a couple of things.
Earlier I spoke and took a position in
strong opposition to amendments to
this bill, and I am most strongly in op-
position to this particular amendment.
Something is wrong if the system
does not work, and nothing we can do
to regulations is going to fix it. My po-
sition is that any validity there may be
in this is far outweighed by the dam-
ages Created to the individuals who are
forced to go through the polygraph
examinations, and the general feeling
'among those who have studied this
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November 4, 1987
CONGRESSIONAL RECORD ? HOUSE
Issue is that it is no better than a flip
of a coin.
I did vote for the Gunderson substi-
tute because I believe that the intimi-
dation factor, which I believe is a pri-
mary consideration, can sometimes be
successful. In fact, I would point out
one incident to the Members where
the police, who were very imaginative
and did not have a polygraph handy,
wired a fellow up to a Xerox machine
and started questioning him, and at an
appropriate time they pushed a button
on the machine where they had previ-
ously put in a piece of paper that said,
"It's a lie." So when they asked the
gentleman as to whether or not he
had committed the crime, they pushed
the button, and out popped the paper,
It said, "It's a lie," and he confessed.
I can see that this machine or these
kinds of tactics of intimidation can led
to some utility, but the question is
whether it is utility with respect to
preemployment.
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield?
Mr. JEFFORDS. I yield to the gen-
tleman from Florida.
Mr. YOUNG of Florida. Mr. Chair-
man, I thank the gentleman for yield-
ing.
I agree with the gentleman and the
problem that the gentleman expresses
about the Xerox machine.
Under H.R. 1212 that could still
happen. Under the Darden-Young sub-
stitute, because we put in place certain
safeguards, that could not happen; but
under H.R. 1212, the situation that
the gentleman is really worried about
can still happen.
Mr. JEFFORDS. I do not want to
stop police officers from being able to
do their duty in that kind of fashion.
I would say that I think that the bill
or the amendment that we have here
Is going to create more problems than
It solves, and I would like to refer to a
colloquy that I had earlier with the
gentleman from Texas, because I do
not want to leave any impression upon
the Members that I made a misstate-
ment.
I indicated that the DOD study did
not show any studies which indicated
there was a validity with respect to
preemployment screening, or if there
was, it was done by a polygraph exam-
iner.
The gentleman from Texas (Mr.
DELAyl took serious exception to that,
but the gentleman gave me a list of
the studies to which the gentleman
relied upon.
There was one study that was re-
ferred to in the DOD study which in-
dicated that there was validity to pre-
screening for employment. However, it
was by a polygraph screening director
of the Polygraph Screening Service in
Salt Lake City, UT, Dr. Barland, who
Is not referred to as being a polygraph
expert on the gentleman's list.
There are other studies, the Bursch,
Bloom and Eclle study, and one was a
study by Mr. Horvath, former chief
examiner for the largest polygraph in-
stitution in the United States, and the
others he referred to were studies by a
Dr. Raskin.
Let me read what he said in testimo-
ny before the Senate committee.
There is no scientific evidence that Poly-
graph testing, when used in the commercial
sector for screening, has any scientific valid-
ity ? ? ? One thing I would like to point out
very clearly is that there is a substantial dif-
ference between its use in criminal investi-
gation and in national security applications
as compared to commercial screening appli-
cations.
Except that one study done by a
polygraph operator, that has shown
any validity to preemployment screen-
ing, and we are dealing with that here.
I could take a little issue with the
gentleman from Florida that we
cannot still have quickies on this, be-
cause the amendment only says that
they must set aside 1 hour.
It does not say that they have to
have an exam that lasts at least an
hour, so I do not think it does all the
gentleman hopes it will do.
We should not be validating some-
thing which has never been proven to
be validated, except in one city by a
polygraph operator.
Mr. DELAY. Mr. Chairman, I move
to strike the requisite number of
words.
(Mr. DELAY asked and was given per-
mission to revise and extend his re-
marks.)
Mr. DELAY. Mr. Chairman, I wish to
answer the gentleman from Vermont,
the gentleman's statement that there
Is only one study on preemployment
polygraph examination.
I would like to clear it up. There is
one study in the Department of De-
fense survey of 42 studies. There are
42 studies in 1 survey.
I would also like to point out that
they are not the only studies that
have been done on preemployment
polygraph examination, the effects of
motivation.
There is another survey, a review of
the scientific literature of the validity,
reliability and utility of polygraph
techniques and many others that I
could refer to.
There are more studies than have
been quoted by the proponents of this
bill.
They say the AMA and the OTA
have done studies. I can show you 42
In 1 survey and hundreds from all over
the world, Canada, Israel, and other
countries in this world in this particu-
lar review.
Every one of them says that there is
some validity in some way, or I should
not say every one of them, but the
vast majority of them say that there is
validity in the polygraph system, and
most of them say that there is at least
validity in at least 80, if not 95, per-
cent of the examinations taken.
That IS not the point. They have
brought up a few studies. We have
brought up many, many studies that
are done to attest to the validity.
H 9593
I think the real validity is if the
polygraph is not any good, then why
are so many, people using it? Why has
this House recognized that it would be
valid in the case of drugs and financial
Institutions and in the Government? It
is valid. There is no argument.
There is one opinion by this side,
and our opinion is that it is valid.
The point is that it is valid, and this
substitute restricts and gives you crite-
ria by which it is not abused and gives
certain minimums by which you can
hold the examiner's feet to the fire.
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield?
Mr. DELAY. I yield to the gentleman
from Florida.
Mr. YOUNG of Florida. Mr. Chair-
man, I thank the gentleman for yield-
ing.
On the subject of accuracy and ef-
fectiveness of the polygraph, 2 years
ago this House and the Congress cre-
ated a temporary test program in the
Department of Defense for polygraph,
and a school for polygraph examiners
was established at Fort McClellan, AL.
Under this test program, poly-
graphers for the Department of De-
fense conducted 9,500 exams. The De-
partment of Defense did a random
survey of those people who took those
polygraph tests, and found that 99
percent did not think that the poly-
graph was unfair in any way, or that it
was objectionable or an unwarranted
Invasion of privacy.
Based on this study, this House and
the conferees committee on the au-
thorization bill now have agreed, to
make the test program a permanent
program because they are satisfied it
works when you do it right.
We are trying to put in place the
same professional requirements that
the Department of Defense is using at
their school at Fort McClellan, AL
Mr. DELAY. The gentleman from
Vermont did not refer to the other
studies done on postincidents, crime
detection, and others that were done
that were highly effective, so what the
gentleman is saying, and what most of
them are basing the invalidity of a
polygraph on is saying that there are
no major studies done on prescreen-
ing, but there have been many studies
done on criminal investigations, post-
incident investigations that show
time and time again that it is a valid
process.
You cannot have it both ways, where
It is not valid for prescreening, so it is
not valid for anything.
It is valid, and we all know it is valid,
and it ought to be used to protect the
citizens of America.
Mr. NEAL. Mr. Chairman, I move to
strike the requisite number of words.
I would like to share with the Mem-
bers an article that I found in my desk
today. It is interesting, and I had not
seen this when I came over earlier in
the day and got involved in the debate.
Let me quote a few relevant passag-
es.
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H 904 CONGRESSIONAL RECORD ? HOUSE
Donald Davis is a 22-year-old worker,
and so on, and was grilled extensively
by' police after reporting his wife's dis-
appearance on January 12.
Be flUnkodeorery time he was asked
If he Indicator her. I will-skip down in
the article.
"They asked me If I killed my wife
with a mm or a knife or my bands, and
they asked me if I threw her -off a
mountain or ki a lake or a river or a
_rock "sorry," he said.
The Polygraph report showed a long
list of questions. each asking if he
killed the. woman or knew where she
was, or if Me was olive.
Beside each Question was Davis' re-
sponse of no, along with the word "de-
ception."
The story gees on to point out that
his wife returned. She left town, had
gone to somewhere In Florida. &he
said she wanted to =find out if she
could make It on her own. else was
gone I) weeks, and somehow called
home and talked to a girlfriend; and
the .girlfriend told her about the prob-
lems her husband was having, and be-
cause she returned, he was not con-
victed of murder.
The article ends with a quote from
Mr. Davis Where he says, 'I wasn't
lying, It Was that lie detector that was
tidnir
There are several major prableres
With this proposal to lare widespread
be-detector tests, and the Bret .onela
very bailie constitutional question: The
question of our system of justice.
Under our system we assume that
our public, the peOple of this Muntry,
are innocent until proven Vitt?. The
widespread use of be-detector tests
says to ear public that you are guilty,
and you mast prove your 'innocence,
and how are you gohigto do it.
You are going to do ft with a gadget
that our now distinguished Senator
from North Caro/ins called 20th-cen-
tury 'witchcraft. These gadgets do not
work.
I looked at some of the studies the
dertingdisked gentleman from 'Texas
was quitting. 'livery one of those 'stud-
ies I eotdd find some weasel word,
some way of qualifying 'that study to
make it Clear that these lie detectors
are sintp/y net reliable.
I have net seen these comments, but
it has been said over 'and over again
today that the American Medical As-
sociation is against the use of these
gadgets, that the American Psycholog-
ical- Association, the experts on test-
ing, are against wring these gadgets.
Let us pay some attention tO these
experts in the field. We are running
the grave risk of potting American
people at great risk in an attempt to
find some quick fix for a very serious
problem.
Let me close by asking the Members
to ask ,yourselves this question: Would
you like to alibied your future, your
future, the opportunity to Work and in
some instances to be 'free, to this little
him* box;this little gadget, phirsOnie
person, usually a person that is not
highly trained or qualified, would you
want to subject your life, your future
to this kind of gadget?
If you answer yes. I guess you can
say yes, this is just wonderful.
Let us run ahead with these kinds of
tests, but this is a very dangerous
precedent.
It has been said over and over again
today that we are being hypocritical
when we say we ought to let the Fed-
eral Government, the intelligence
agencies of our country use these
gadgets but not let private business,
and that is absolutely correct.
If we let our intelligence agencies
use these gadgets and rely upon them
for important national security ques-
terns, we subject OUT country to great
shower.
1 would urge the Members not to
eorttinue to let the intelligence Igen-
cies of this country nee these 'gadgets
in a way that might put our country in
great jeopardy.
There are 'motel lechitiques? that
can be used, drugs that can be taken
so people can ?defeat these tests, and
we runs grove risk.-
The CHAIRMAN. The time of the
gentleman from North Carolina Oar.
Nam] has expired. ?
40nrequest of Mr. ilivrremu., and by
unanimous consent, Mr. NEAL was al-
lowed to gamed tor 1 additional
minute.)
Mr. SWINDALL. Mr. Chairman, will
the gentleman yield?
Mr. NEAL: I yield to the gentleman
kom Georgia:
Mr. IIWINealalim Mr. -Chairman, I
thank the gentleman ler yielding to
.litirat of all, what would 'the gentle-
man .do about She situation which I
addressed earlier where there is * con-
rioted ?ex-oon who Moires to have a
Yalawompb to clear his or her good
name?
What would the gentleman do for
that person?
Mr. NEAL. I would have to .say to
that person, you cannot go it with
these sedge* bemuse they are Inher-
ently unreliable.
I have a hearing record of hearings
held before the Committee on Govern-
ment Operations when we heard wit-
ness after witness testify to the point,,
to the Islet that these gadgets are not
reliable; and for that reason, I would
have to say to the gentleman, you
cannot depend on these gadgets to fi-
nally determine innocence or guilt.
Mr. SWINDALL. Under that &caner-
io, the person loses his job, so what
could be worse?
0 2045
Mr. NEAL. Many people are going to
lose their jobs, just like this poor
fellow here. This fellow Mind have
ended UP, '"Lie Detector' Tells Pik" the
headline says. 'This fellow could have
ended up dead because of faulty Ile
detector
Mr. 'BARTLETT. Mx. Chairman. I
move to strikethe -requisite number of
November 4, 1987
words. I rise to speak in favor of the
substitute.
Mr. Chairman. I will not take the
entire 5 minutes, but I xnuat say in re-
sponse to my good friend, the gentle-
man from -North Carolina, who is very
eloquent, that I want to oall lo ,the at-
tention of the gentleman and the at-
tention of the House in the example
that the gentleman used of a law en-
forcement lie detector or polygraph
which later proved to be false is ex-
pressly permitted and authorized
ander the bill that is before us; so if
you want to eliminate or to restrict
any abuses that you may see happen-
ing in law enforcement, then you
should voteagahist the bill.
On the other hand, the Darden-
Young sutistitute that is before us
sroidd establish minimum standards
for polygraph examiners, require-
ments that *bequeathing be in writing
and a whole host of other standards;
so 41 the gentleman is interested, as I
know he Is,tn owing the problem that
he specifically cited, that is, a poly-
graph that was used in a law enfOrce-
roost vase and it Owned out to be in-
correct, then he should Vote for the
substitute which will establish mini-
? standards, improve those stand-
ards, and establish standards for poly.'
graph examiners and examinations.
The House needs to understand
there are two bills before us.The main
bill would prohibit in all eases the use
of a polygraph examination antigen
regard to Whether it meets standiirds
or not, except for Government work.
For Government work. no standards
are given in the bill at sfl. or drugs.
'On the other hand. there Is the
Darden-Young substitute that would
ettY that if 'there had been abuses In
polygraphs, if there are standards that
oteibt to be adopted, we will adopt
those standards for all cases.
Mr. NEAL. Mr. Chairman, wlfl the
gentleman yield?
Mr. BARTLETT. Yes, I yield to the
gentleman from North Carolina.
Mr. NEAL. Well, Mr. Chairman, I
would just like to make one point. I do
not mean to be too facetious. I am
carotins from a statement by a distin-
guished .Member of this House.
I would say I would consider estab-
lishing standards for these so-called lie
detector tests about like establishing
standards for the dunking stool, the
rack, and the firing squad. These are
all techniques for eliciting a particular
response, but I submit to my good
friend and my distinguished colleague
that these lie detector tests are no
more accurate than the gadget that
they used to dunk people to determine
if they were liars.
hlr.BART'LETT. I understand.
*. NEAL. I would hope we would
riot proceed With these things in this
ernIday -era.
._marrurrr. I understand the
eman's modernization. I did not
a that statement and the gentle
'did not; hit the bill that the gen-
?0,4
I
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November 4, 1987 CONGRESSIONAL RECORD ? HOUSE
tleman from North Carolina plans to
vote for and is speaking for establishes
no standards whatsoever for Govern-
ment uses, none, not one. If it is a gov-
ernment use, if it is a law enforcement
agency, if it is the Congress of the
United States, we will have no stand-
ards, not one; but under the Darden-
Young bill we would establish at least
some standards for all uses of the
polygraph.
Mr. NEAL. Mr. Chairman, will the
gentleman yield one more time?
Mr. BARTLETT. I yield to the gen-
tleman from North Carolina.
Mr. NEAL. Let me say, Mr. Chair-
man, I share that concern and I would
hope that we would understand that
these gadgets are inherently unreli-
able and not depend on them for the
Government use. If we can stop their
widespread use, which I believe to be
unconstitutional and unreliable with
the American public, maybe we can
move to stop their use in the Govern-
ment also.
Mr. BARTLETT. I understand what
the gentleman is saying. That is not
the subject that is before the House.
We have two bills before the House.
We can choose one to prohibit all uses
in private industry and no standards
at all in the public sector, or two, we
can acknowledge that we should estab-
lish some standards, minimum stand-
ards, and some licensing requirements
for the use of the polygraph.
I urge the House to take the other
course, the Darden-Young course, for
the minimum standards.
Mr. OBERSTAR. Mr. Chairman, I
move to strike the requisite number of
words.
(Mr. OBERSTAR asked and was
given permission to revise and extend
his remarks.)
Mr. OBERSTAR. Mr. Chairman, if
the claims of its supporters can be be-
lieved, the polygraph is truly an amaz-
ing device. It is supposed to measure
our intangible thoughts; determine if
we are telling the truth or telling a lie;
it is supposed to help police and pros-
ecutors determine the truth of a sus-
pect's statements, and thereby deter-
mine probable guilt or innocence. It is
supposed to aid employers to weed out
those prospective employees who
would be prone to lie, to cheat, and to
steal. If all those claims are believed,
the polygraph is truly an amazing
device. It can find that most elusive of
all human qualities: truth.
Unfortunately, the fact is that the
polygraph does not measure truth and
it does not measure falsehood. It can
only measure physical reactions such
as blood pressure, heart beat, perspira-
tion, and then technicians take those
reactions and measure them against
research figures to determine if the
subject is uncomfortable enough to be
suspected of telling a lie.
What type of device is this to inflict
upon human beings, who as the gen-
tleman from North Carolina so elo-
quently said, under our Constitution
and under our system or jurisprudence
are presumed to be innocent until
proven guilty.
Polygraph testing has expanded in
recent years in the private sector, as
businesses have sought them out and
used these devices for preemployment
screening, for internal security investi-
gations to determine who gets hired
and who gets fired, who advances in
his or her career and who is set aside.
At the same tune, the validity of poly-
graph testing has come into wide ques-
tion all across this country. The Office
of Technology Assessment has report-
ed that available research evidence
does not establish the scientific validi-
ty of polygraph testing for personnel
security screening.
Twenty-two States and the District
Of Columbia have restrictions on the
use of polygraphs for testing for pri-
vate employment, but that is not
enough. Companies can circumvent
that provision by hiring people in
States that do not restrain or restrict
or prohibit polygraph testing and then
transfer their personnel into those
more restrictive States.
The numbers speak for themselves.
The American Polygraph Association
says that 98 percent of the 2 million
polygraph tests given each year are
given by private business, three-
fourths of those for preemployment
screening. I cannot think of a more in-
trusive and dangerous device to inflict
upon the people of this country than
polygraph testing on such a wide-
spread indiscriminate basis.
I think this legislation is a reasona-
ble approach, one that protects the in-
tegrity of the individual and it is a bill
that we ought to pass.
Mr. FRENZEL. Mr. Chairman, I
move to strike the requisite number of
words.
(Mr. FRENZEL asked and was given
permission to revise and extend his re-
marks.)
Mr. FRENZEL. Mr. Chairman, I am
one who has had some experience with
these particular kinds of machines in
private business and in all the cases
where I saw it applied, there was a
positive result. I have not heard
anyone claim a hundred percent accu-
racy for the process. I have not heard
anyone claim a hundred percent accu-
racy for interviews or drug tests or
even thermometers, as far as that
goes.
I myself probably am a dangerous
weapon. I interview a lot of employees.
I am certainly not a skilled interview-
er. I am considerably less dangerous
than a polygraph.
But what this bill does is to bar the
use of polygraphs. It means you
cannot use them in connection with
any other system, machinery or proc-
esses, that you might want to use to
check on employees in which cases
you need some very strong security.
The bill is a little bit inconsistent be-
cause it does allow exceptions, and as
the gentleman from Florida has point-
ed out, you are going to have poly-
H 9595
graph use whether this bill passes or
not.
My personal preference would be
that there would be no messing
around in the private use of poly-
graphs by the Congress.
I understand 41 States have laws on
the books relating to polygraph use or
standards, and in my judgment it is a
splendid area in which the States
should legislate and a wonderful area
for the heroes of Congress to stop
messing; but if we are going to pass a
bill, we certainly should have the good
sense to accept the Young-Darden sub-
stitute, because at least there we have
some consistent principles that will
protect everyone, not just those who
were fortunate enough to get exclu-
sions from the bill.
I think any rule of good reason and
sanity would lead us to support the
Darden-Young substitute, if indeed we
have to legislate in this field at all.
Mr. WILLIAMS Mr. Chairman, I
move to strike the requisite number of
words. I raise in opposition to the
amendment, but really for the purpose
of thanking my colleagues who have
been more than patient during what
has been really a good debate and has
focused by both the opponents of my
bill and the supporters of my bill and
the opponents and supporters of the
substitute now before us have focused
on the merits and the demerits of the
lie detector.
We are now approaching just a few
minutes short of 10 hours on this bill.
It is interesting that we can pass a rec-
onciliation bill within an hour. We can
spend $100 billion within just a few
minutes with no debate, but it takes 10
hours to get passed an emotional issue
like this.
The debate has been good. The at-
tention has been good.
Mr. Chairman, orderliness of the
House has of course been excellent
and we appreciate everyone's involve-
ment in this.
I would also remind the Members
that we just finished voting on this a
year ago on this very substitute and
turned it down 173 to 241. I urge you
to turn it down again tonight.
Mr. BILIRAKIS. Mr. Chairman, I
move to strike the requisite number of
words.
Mr. Chairman, I yield to the gentle-
man from Florida (Mr. YOUNG].
Mr. YOUNG of Florida. Mr. Chair-
man, I thank the gentleman for yield-
ing. I will be very brief.
I listened to the debate of those who
say that the polygraph does not work.
If it does not work, I say to my dear
friends and colleagues, if it does not
work, why are you supporting a bill
that allows it to be used in all the Fed-
eral Government, every State govern-
ment, every county, every city, and
every political subdivision in America,
the FBI, contractors, security guards,
those involved in the drug industry? If
it does not work, why are you going to
support a bill that allows it to be used
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CONGRESSIONAL RECORD ? HOOSE November 4,1W
without any profeadonalisca in mil-
lions and millions of cases?
I lima theigantleman for.yielding.
Mr. .BILIRAK.18. Mr. Chairmen, I
tuitional the fleistieman's remarks and
ask that we support the ist&
Mr. PRM. Mr. Chairman, our national se-
curity agencies. repeatedly come to us ?asking
for authority to conduot polygraph stamina-
ions as pail of their programs to Apard our
national seculity.
So tar thieved, this -body has voted twice
to support measures that provide for poly-
graph testing.byithis Federal Government On
May 11, the vote was 346 to 44th favor of an
amendment offered by the gentleman .from
Florida Pr. YOUNG] to the Defense Depart-
ment's authorization bill. The measure estab-
lishes a permanent polygraph program for na-
tional defense' egencies
Then just I month later, on June it there
was a unanimous vote to badt an amendment
offered by the oentlernan froni Florida /Mr.
Mord to the StateDepartmenrs authorization
bill. That amendroset inctuded language to re-
quire counterintedgence polygraph examina-
tions for ,members of the Diplomatic Security
Service&
The increasing prevalence of espionage
and deceit .our Government underscores
the need for polygraph examinations. Arid
theseletest votes, which warmly the latest in
a series. show our consistent backing ler the
use of -polygraph *sting to protect our nation-
al secutity.
The Congress iteeN relies on the use of
polyglapit erarlitationeth ereteathie building
and the Members and staff who work here.
The Cipitol Polio& use the polygraph to
screen their appticastrisand to iswestigate spe-
cific incidents..indecang suspected drug use.
That the Congresarelies on the polygraph is
still another testament,* Its-value.
The need for polygraph testing to protect
lives, property and wadable Infomiation does
not, end here. The polygraph is indispensable
in protecting the customers, employees, in-
ventories, and assets of American 'business
and industry as well, and they also are mated
to access 'to-the-polygraph.
We would be establishing a dangerous
double standard if we were to approve this
legislation to strip business and industry of
access to the same investigative tool that the
Government obviously ands to be so useful.
Private business ,and industry also have a
serious responsibility to protect people and
assets. The polygraph enables them to better
carry out them responsibilities to protect the
health and welfare of our citizens.
I urge my colleagues to OPPeee the ban on
polygraph losing in the private sector and in-
stead to support the more reasonable, and
workable, measure ken:sieved by the gentle-
man from Florida (Mr. YOUNG] and the gentle-
man from Georgia (Mr. DARN] 10 set nation-
wide standards io,.tssting and examiner quail-
fiosition& If the polygraph technique is accept-
able in protecting national security and other
Government interests, it should also be ac-
ceptable to protect the interests of business
and industry.
Mr. DREIER of California. Mr. Chairman, I
rise today in support of the Young-Denten
substide to the Polygraph Reform Act. The
substitute better addresses the comma of
einPittleasand ealakeiers aver abuse in ad-
ministering polygraph examination'. This
naleSullt would prank* .specific rights to
employees asked to' take a polygraph and
would. impose staingentFederal standards on
poinpads marniners. is addidon, the substi-
tub rospeoletheatglitsof Stale mid local gov-
attuned* to impose their own more stringent
stendaideen the potygraph industry.
Thoogh not Mlailible?polygraphe have dem-
onstrated-a certain soceracy in determining a
ambjectIststrilthibiests. I do not believe an am-
ahould he deprived of this useful tool
as a means *hire trusteexttm employees my
more *antis should be deprived of the *s-
plint Ischniqum of a personal interview, ref-
orms or masa application. All of these
lee' iihOuld be :used together to select the
-most vilified candidate. I stookillm to paint
out that the Young-Deaden substitute would
leawellat- no ealPloWnent decision would be
madebased solely upon the maul* of a p'-
-examinethinix to employee's refusal to
WM a PoirOmPh?
When the House passed in the 99th Con-
gress a simile, ban on the use of polygraph
examinations in -the private sector, a wrier
of exemptions were added to the bill which
had the effect Of pemlitting polygraph tests in
selected industries. While I supported these
memplions. Congress =eaters double stand-
ard by amending .day care facilities, nursing
homes, pharmaceutical firms, armored. car and
sem* guild agencies. and the nuclear
power industry from the ban on polygraph ex-
aminations. By retaining the use of the poly-
graph for all private sector employers, the
Young-Darden substitute would treat all indus-
tries squally.
Mr. MONTGOMERY. Mr. Channen. -as we
debate the nerds of the polygraph technique
and its yak* in **workplace, I ask my ? col-
leagues to loom Ice a :moment on a larger
issue at stake here. Namely: the Constitution.
It is our responsibility to protect and ensure
the proper balance of power between the
States and the Federal Government
There is no constitutional basis for a Feder-
al ban on polygraph testing in the private
sector. Article 10 dearly states:
The powers not delegated to the United
States by the Comititution, nor prohibited
by it to the Sterne, are reserved to the
States respectively, or to the people.
Thirty-one Stales already have passed poly-
graph legislation. At least four of them chose
to outlaw polygraph testing completely. The
others have developed various regulatory ay-
poaches that allow polygraph testing under
certain conditions.
It is clear that the States are accepting their
responsibility to regulate this controversial in-
strument.
The approach presented to us today to ban
the polygraph is an overreaction that under-
mines the hard and careful work that the
States are doing to develop their own bodies
of law. The principles of federalism call on us
not to intervene in matters that are the re-
sponsibility of the States and in which there is
no overriding need for a uniform national
Pokr.
In fact, the heated debate among scientists
and academicians about the validity of the
polygraph is -earidenoe that this issue has not
, been 'resolved to We point that any national
poty could be lomeirded. This appears to be
an appropriate area in which to Mow the
Stales to develop various approaches that suit
theircitizenabost And theYarealemeristnting
thb%.11tytodotosL -
Fisither.1 boowlito parr**
of, the States to regulate contained* within
their- boundaries.- They have mecivatieres to
certify that thew +Rho deliver health dre fiery-
iota to residents aro qualified*. do to. They
*vases insurance and 'real estate brokers,
;ANN complies, *rotors, WM& mid *m-
aids, to name jata few.
The States are equipped to -regulate- the
adnrices offered by polypeph examiners as
well, as most have demonstrated by passing
their own legislation.
Assistant Attorney General John &non
sent, ti letter to the-Congress addressing-this
Issue. hie edd:
Polygraph misuse may be more appropri-
ately deterred by restricting the conditions
udder which polygraphs are administered
rather than prohibiting their use altogeth-
er. The States are better equipped to make
thesedetsernsinstidos.
He suggested that the States can provide
inereueS for appeal if someone feels his or
her rights have been violated. States also can
regal/deem kinds of , questions that are asked,
the equipment that is used, and the qualifica-
tions of monitions.
11 agree with Mr. Bolton that the Federal
Government shoUld not profit* the use of the
polygraph in the private -sector. There should
not be a bat, nationwide vban on the poly-
graph, but as use. should be regulated on a
case-br-case, and Slate-by-State basis, as
provided bythe.Constitution.
The CHAIRMAN. The ouestion is on
the amendment in the mature of a sub-
' stitute offered by the gentleman from
Florida (Mr. Youne3.
The question was taken; and the
Chairman announced that the noes
appeared to have it.
RZCORDED VOTE
Mr. YOUNG of Florida. Mr. Chair-
man. I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic
device, and there were?ayes 169, noes
242, not voting 22, as follows:
Itoll No. 4131
AYES-189
Anderson
Archer
Anney
Badham
Baker
Ballenger
Barnard
Bartlett
Bateman
Bennett
Bentley
Bereuter
Bevill
BWrakts
Bliley
Bounce
Broomfield
Buechner
Bunning
Burton
Byron
Callahan
Campbell
Chandler
Chapman
Chappell
Cheney
Coins
Cehle
Coleman (MO)
Ilembest
Craig
Dannesneyer Hefley
Darden Hefner
Daub Berger
de la OaraaHIler
DeLay Hoobbrueckner
Derrick Holloway
DeWine Hopkins
Dickinson Huckaby
Dioeuardi Hunter
Dornan (CA) Hutto
Dowdy klyie
Dieter Inhofe
Edwards (OK) Ireland
Emerson Jenkins
Erdreich Jones (TN)
Jewell Kasich
Fields Kmmyu
Flippo ICyl
Frermel Lagomarsino
Gailegly Latta
?elms Leath (TX)
Goodling Lent
Gradison Lewis (CA)
Grant Lewis (FL)
Gunderson Lightfoot
Hall (0/0 Livingston
Hall (TX) Lowery (CA)
liaannerachandt an
Hansen Lukens.. Donald
Hastert Lungren
Matcher Mack
May (LA) MacKay
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November 4, 1987
Madigan Ravenel 8010111011
Marlenee Ray Spence
Martin (NY) Rhodes Stangeland
McCandless Roberts Stenhohn
McColl= Rama Stratton
McEwen Roth Stump
McGrath Roukema Stuukuist
McMillan MO Rowland (OA) Sweeney
Meyers Saiki Swindle
Mica Schaefer Tauzin
Michel Schuette Taylor
Miller (OH) Schulze Thomas (CA)
Montgomery Sensenbrenner Thomas (GA)
Moorhead Shaw Upton
Morrison (WA) Shtunway Valentine
Myers Shuster Vander Jagt
Nelson Strisky lineanovich
Nichols Skeen Walker
Ortiz Slaughter (TM Whittaker
Ordei Menhir GM Wolf
Packard Smith (TX.) Wortley
Parris Smith, Denny Wylie
Pasha's& (OH) Yetmg (PL)
Pickle fireith. Hebert
Porter
Quillen Smith, Robert
(OR)
CONGRESSIONAL RECORD ?HOUSE
NOES-242
Ackerman FogNetta McMillen (MD)
Akaka MeV Miume
Alexander Flied (MI) Wan WA)
Andrews Ford (TN) Miller (WA)
Annunzio Frank Mineta
Anthony Prest Moakley
Applegate Gallo Mollohan
Minn Garen Moody
Atkins Genies Morella
AuCoin Gejdenson Morrison (CT)
Barton Gibbons Mrazek
Bates Gilman Murphy
Bellenson Eiliekstan Murtha
Berman Gonzalez Nagle
Bilbray Gerdes Natcher
Boehlert Grandy Neal
Bow Greg (H.) Nielson
Bolan" Gray (PA) Snook
Bonior Green Oakar
Bonker Gregg Oberstar
Borski Guerin' Obey
Bosco Hamilton Olin
Boucher Harris Owens (NY)
Boxer Hawkins Panetta
Brennan Hayes (IL) Patterson
Brooks Henry Pease
Brown (CA) Hertel Priest
Bruce Horton Penny
Bryant Houghton Pepper
Bustamante Moyer Perkins
Cardin Hubbard Petri
Carper Hughes Pickett
Clarke Jacobs Price (IL)
Clinger Jeticeds Price (NC)
Coelho Johnson (CT) Parsell
Coleman (TX) Johnson (SD) Raball
Collins Jontz Rangel
Conte Kanjorski Regula
Conyers Kastennieler Richardson
Cooper Kennedy Ridge
Coughlin Kennelly Ramble
Courter Kildee Ritter
Coyne Kleczka Robinson
Crockett Kolbe Rodin?
Davis (IL) Roller Roe
Davis (MI) Kostmayer Rase
DeFazio LaFalce Rostenkowski
Delimits Lancaster Rowland (Cr)
Dicks Lantos Roybal
Dingell Leach (IA) Russo
Dixon Lehman (CA) Sabo
Donnelly Lehman (FL) Savage
Dorgan E(D) Leland Sawyer
Downey Levin (MI) Saxton
Durbin Levine (CA) Schemer
Dwyer Lewis (GA) Schneider
Dymally Lloyd Schroeder
Dyson Lowry (WA) Schumer
Early Luken, Thomas Shays
Eckert Manton Slicorski
Edwards (CA) Markey Skaggs
English Martin (IL) Skelton
EstiY Martinez Slattery
Evans Matsui Slaughter (NY)
Fascell Mavroules Smith (FL)
Fazio Masson Smith (IA)
Feighan McCloskey Smith (NJ)
Fish McCurdy Snowe
Flake McDade Nolan
Florio McHugh Sprint
St Germain
Staggers
dhallings
Stark
Stokes
Studds
Swift
BYnar
Tailors
Tune
Torres
Biaggi
Brown (CO)
Carr
Clay
Crane
Dardel
Geishoodt
Torricelli
Tanta
Tralicant
Tanner
Valtie
Viselosky
Volkmer
Weigeen
Watkins
Weber
Weldon
Wheat
Whitten
Winans
Won
Witte
Wolpe
Wyden
Tates
Yantis
Young (AK)
Owens (UT)
Roemer
Sharp
Udall
Woman
Weiss
NOT VOTING-22
Gingrich
Howard
Jones