This paper discusses employment strategies that allow employers to use pre- and post-hiring testing to place the right employees in the right positions. Although testing creates some risks, it can often provide employers with information that could otherwise only be gained the hard way – after failure of the employment relationship.
This paper discusses the following issues that pertain to testing in the employment context: general federal standards applicable to employment testing under Title VII of the Civil Rights Act of 1964, medical tests under the Americans with Disabilities Act, psychological, personality, or character tests, drug and alcohol testing, and polygraph testing. Other testing issues will be discussed as appropriate throughout the paper.
I. Standards Imposed By Guidelines on Employee Selection Procedures.
Under Title VII, an employer may be liable for employment discrimination not only if it treats persons in a protected class differently ("disparate treatment"), but also if it has facially neutral policies that have an adverse impact on protected classes without appropriate justification ("disparate impact"). Thus, if an employer uses a test for hiring or promotion purpose that has adverse effects on a protected class but does not accurately predict likely future job performance, the test may be violative of the anti-discrimination laws.
The United States Supreme Court laid the foundation for this theory of liability in Griggs v. Duke Power Co., 401 U.S. 424 (1971), in which the Court made clear that the employer has the burden of showing that any job requirement has a manifest relationship to the job in question where the requirement tends to reduce job opportunities because of race. A key element of the Court's holding in Griggs was that good intent or the absence of discriminatory intent did not redeem testing procedures that had adverse impact on protected classes, but were unrelated to measuring job capability. Griggs at 432.
After Griggs, courts took diverse approaches to determining when particular tests had an adverse impact on protected classes. Shortly thereafter, the Equal Employment Opportunity Commission ("EEOC"), in conjunction with the United States Department of Labor, the United States Department of Justice, and the United States Office of Personnel Management, issued the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. Part 1607, which set out employment testing standards for compliance with Title VII of the Civil Rights Act of 1964. The Guidelines are not technically "regulations," but nonetheless will be given "great deference" by the courts. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975). The Guidelines apply specifically only to Title VII and not to other anti-discrimination statutes such as the Americans with Disabilities Act ("ADA") and Age Discrimination in Employment Act ("ADEA."). 29 C.F.R. § 1607.2(D) (1997). The basic approach taken by the Guidelines, however, may be applied by analogy in cases of age or disability discrimination. The Guidelines have been applied strictly by some federal circuit courts, but used only as a factor in other circuit courts. The few cases in the Tenth Circuit, in which New Mexico is located, that have used the Guidelines have not applied them rigidly, but have accorded them deference as required by the United States Supreme Court. See Equal Employment Opp. Comm'n v. Zia Co., 582 F.2d 527, 534 (10th Cir. 1978); Brito v. Zia Co., 478 F.2d 1200, 1205-06 (10th Cir. 1973).
The Guidelines detail permissible uses of various selection criteria and generally require employers to conduct validation studies that show that particular employment tests accurately predict successful job performance. Under the Guidelines, employment practices which have an adverse impact on a protected class are impermissible unless shown by professionally accepted methods to be significantly correlated with the important elements of job performance. 29 C.F.R. at 1607.3(A). Under Griggs and Albemarle Paper, claims of disparate impact through testing will be subject to a burden-shifting analysis. The plaintiff will have the initial burden to show that the test has an adverse effect on a protected class in a statistically and practically significant way. Then, the employer must show either that the test does not have the alleged adverse impact or that the test is job related and consistent with business necessity. If the employer makes this showing, the plaintiff can prevail only by demonstrating that s/he suggested to the employer a valid and effective alternative selection procedure with less adverse impact, but that the employer refused to adopt it. Griggs, 401 U.S. at 432; Albemarle Paper. 422 U.S. at 425.(1)
Griggs considered and invalidated the use of the "Wonderlic Personnel Test," which purported to measure general intelligence, and the Bennett Mechanical Comprehension Test. Albemarle also considered the Wonderlic test as well as the Beta Examination, which purported to test non-verbal intelligence. The key in these and subsequent federal decisions, is the extent to which employers are able to demonstrate that tests are truly related to job performance.
The Guidelines and subsequent federal interpretations impact the employer seeking to implement employment testing in several ways. First, if a complaint is ever received alleging that an employer's testing procedures have an unjustified adverse impact on protected classes, the employment test at issue will be carefully scrutinized. Therefore, employers should be careful in implementing such testing. Employers will probably want to use professionally-developed ability tests from a source that can also provide appropriate "validation" studies demonstrating that the test does not have an unjustified adverse impact on protected classes. Second, employers will want to monitor and examine the practical effect of such testing once it is implemented. If a test tends to result in fewer employees from protected classes being hired or promoted, further examination is warranted. An adverse impact may be justified where the test is job related and consistent with business necessity. In the event that an adverse impact is noted, the employer may want to hire a professional to conduct a validation study on the test as applied to ensure that it is testing for appropriate criteria.
In addition, the employer should consider other alternatives to the existing testing procedures that might have less adverse impact. It appears that an employer will not be required to adopt a less effective test because the original test has adverse impacts; however, the courts may balance the benefits of a test with its costs. In the event that a test is only marginally more effective but has a much greater adverse impact, the employer may want to consider using a new test.
Issues related to language fluency requirements may arise under the Guidelines when an employer specifically tests for fluency in a particular language or administers other types of tests in one language only. Although employers should scrutinize their specific situations, most courts that have considered the issue have held that a requirement of basic fluency in English is sufficiently job related and consistent with business necessity. See e.g., Garcia v. Rush-Presbyterian-St. Luke's Medical Center, 660 F.2d 1217, 1222 (7th Cir. 1981); Frontera v. Sindell, 522 F.2d 1215, 1216 (6th Cir. 1975). Again, the validity of a language fluency requirement is based on its relation to the job and an employer's business necessity; a fluency requirement that is only a proxy for discrimination against a protected class will not pass muster.
II. Tests Under The Americans With Disabilities Act.
The ADA includes several provisions directly addressing appropriate testing under the Act. Generally, with respect to all type of testing, the ADA provides that the following conduct constitutes prohibited discrimination:
(6) using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity; and
(7) failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).
42 U.S.C.A. § 12112(b)(6) & (7).
The first of these provisions simply clarifies that the general standards regarding the validity of employment testing applicable to Title VII (as set out in the Guidelines discussed above) will also apply in disability cases, even with respect to non-medical testing. The second provision is a specialized application of the general rule: employers must administer even valid tests to applicants or employees in formats that do not improperly disadvantage them because of an impaired skill.
The ADA also specifically addresses preemployment medical examinations and inquiries:
(A) Prohibited examination or inquiry.
Except as provided in paragraph (3) [governing employment entrance examinations], a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.
(B) Acceptable inquiry.
A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions.
42 U.S.C.A. § 12112(d)(2)(A) & (B).
Under these provisions, "an employer cannot inquire as to whether an individual has a disability at the pre-offer stage of the selection process." 29 C.F.R. § 1630.13(a) app. The reference to "entrance examinations" allows employers to administer medical exams or physicals once an offer of employment is made but prior to actual work. 42 U.S.C.A. § 12112(d)(3). Employers may make an offer of employment contingent on the results of a physical and mental examination, but only if all employees in the same job category are required to take the examination. Id. Moreover, all medical information obtained must be maintained on separate forms and separate medical files from the employee's personnel file. Id.
Post-offer, preemployment medical tests may be very extensive in scope and are not limited to job-related items consistent with business necessity; however, if an employer screens out an applicant based on information obtained in the medical tests, that particular factor must be job-related and consistent with business necessity. Part of this showing will include demonstrating that there is no reasonable accommodation that would permit the applicant to perform the essential functions of the position. 29 C.F.R. § 1630.14(b).
After the entrance examination stage, employers are not permitted to require further medical tests unless they are job-related and consistent with business necessity. 42 U.S.C.A. § 12112(d)(4). Under this analysis, employers are permitted to require tests "when there is a need to determine whether an employee is still able to perform the essential functions of his or her job." 29 C.F.R. § 1630.14(c). Employers must still be very cautious in determining that such a "need" exists; the "need" should still be job-related and consistent with business necessity. Any medical information obtained from existing employees should also be kept in a separate location as a confidential medical record.
There are a number of specific kinds of tests that highlight the gray areas in the ADA's approach to medical examinations. Psychological, personality, or "character" tests have been examined by a number of courts under the ADA and, in appropriate circumstances, have been held not to constitute medical tests. Such tests are analyzed in greater scope below in Part III of this paper. Similarly, testing for current use of illegal drugs is not a prohibited medical test. Drug and alcohol testing are addressed in greater detail below at Part IV of this paper.
Physical agility or fitness tests are not considered medical examinations and may be given at any time during the application or employment process as long as the tests are given to every applicant for a particular job category. 29 C.F.R. § 1630.14(a). Frequently, these tests are seen in conjunction with public safety positions, such as police officers and firefighters. An employer may also require an applicant to demonstrate how s/he would perform the essential functions of a position. 29 C.F.R. § 1630.14(a). Vision tests are subject to a similar analysis; while an employer may evaluate an employee's ability to perform job-related vision functions, a formal vision test will be considered a medical test. Employers should asking avoid asking employees about general sight ability (such as "do you have vision correctable to 20/20 vision?") that is not specifically directed at performance of job duties. As with any other test, if a physical performance test screens out qualified individuals with a disability, it must be shown to be job related and consistent with business necessity and that no reasonable accommodation would permit performance of the job's essential functions.(2)
III. Psychological, Personality, or Character Testing.(3)
Employers are increasingly relying on tests that attempt to measure an applicant's psychological makeup, personality, character, integrity, or other qualities that may be relevant to a particular position. Collectively, I will refer to such tests as "character tests" for purposes of this paper. Character tests, like all employment selection procedures, are subject to the general requirements discussed above in Part I; that is, they should be job-related and consistent with business necessity. Beyond that initial hurdle, character tests also raise other issues: whether they are medical in nature such that pre-offer testing is impermissible and whether they violate applicants' privacy interests.
As addressed above in Part II, the ADA prohibits employers from administering medical tests before an offer of employment is made. Properly constructed and administered, character tests are not medical exams under the ADA and thus may be given before an offer of employment is made. The EEOC defines prohibited medical examinations as "procedures or tests that seek information about an individual's physical or mental impairments or health." EEOC Notice 915.002 (reprinted in EEOC Compliance Manual (CCH) ¶ 6903, at 5376); see also Barnes v. Cochran, 944 F. Supp. 897, 904 (S.D. Fla. 1996); (Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 675 (1st Cir. 1995). The EEOC Compliance Manual also lists factors ("EEOC factors") that may identify a test as "medical" under the ADA, including whether:
1) The test is administered by a health care professional,
2) The results are interpreted by a health care professional,
3) The test is designed to reveal physical impairment or mental health,
4) The employer is trying to discover physical impairment or mental health,
5) The test is invasive (including blood, urine or breath tests),
6) It measures an applicant's performance of a task or his physiological responses to performing them,
7) It is normally given in a medical setting,
8) Medical equipment is used.
EEOC Notice 915.002 Thompson v. Borg-Warner Protective Serv. Corp., 1996 LEXIS 4781 (N.D. Cal. 1996). Although one factor may be enough to conclude that a procedure or test is medical, the EEOC's position is that in many cases, a combination of the above factors should be weighed to make the determination. EEOC Notice 915.002.
The EEOC illustrates the factor-balancing process through a hypothetical addressing psychological testing:
A psychological test is designed to reveal mental illness, but a particular employer says it does not give the test to disclose mental illness (for example, the employer says it uses the test to disclose just tastes and habits). But, the test also is interpreted by a psychologist, and is routinely used in a clinical setting to provide evidence that would lead to a diagnosis of a mental disorder or impairment (for example, whether an applicant has paranoid tendencies, or is depressed). Under these facts, this test is a medical examination.
EEOC Compliance Manual at 5377. Thus, employers should avoid the factors present in this hypothetical (results interpreted by psychologist, in a clinical setting, providing evidence of mental disorders or impairments) in establishing their own testing procedures.
The ADA prohibits not only pure "medical" tests, but also psychological tests that are "medical," or clinical in nature. In the Compliance Manual, the EEOC compares two tests, and explains why it considers one to be a prohibited medical test and the other to be an allowable non-medical test. Discussing the two hypothetical tests, the EEOC's position is that the test evaluating individuals for signs of "excessive anxiety, depression, and certain compulsive disorders" is a medical test, while the test designed to measure "whether an applicant is likely to lie" is not a medical. EEOC Compliance Manual at 5377-78.
Because the former test examines applicants for "DSM-listed conditions," it is a medical exam. The Diagnostic and Statistical Manual of Mental Disorders (DSM), a publication of the American Psychiatric Association, is typically used by clinicians to diagnose and treat mental disorders. See EEOC Compliance Manual at 5377. The EEOC's position is that if a test evaluates disorders found in the DSM, it is probably medical in nature. In contrast, according to the Compliance Manual, tests measuring characteristics such as honesty, tastes, and habits are not medical. Id. at 5378. Thus, employers may design character tests to measure these or analogous traits.
Tests actually administered and/or evaluated by clinicians seem particularly suspect under the EEOC's guidelines. Evaluating the permissibility of a pre-employment test, the United States District Court for the Southern District of Florida recently addressed whether an employer could require its applicants to meet with a psychologist for a pre-offer "clinical evaluation." Barnes v. Cochran, 944 F. Supp. 897 (S.D. Fla. 1996). In Barnes, the employer routinely required applicants for corrections deputy positions to complete a "clinical evaluation," in which a licensed psychologist asked questions about applicants' personal lives and especially areas that tended to reveal specific psychological disabilities. Id. at 904-05. Applying the EEOC regulations and Compliance Manual guidelines, the court rejected the employer's arguments that the test was only used to determine applicants' job qualifications. Id. Instead, the court held that because the evaluation included several psychological disorder diagnostic tests administered and interpreted by a psychologist and included a review of the plaintiff's medical records, the "clinical evaluation" was prohibited by the ADA.(4) Further, the court distinguished between the employer's right to "not ignore any disabilities of which [he] is aware . . . and ask employees with known disabilities to describe how they could perform the job, with or without reasonable accommodation," and the defendant's prohibited practice of trying to identify the nature and extent of an applicant's psychological disorder. Id. at 905. Again, based on Barnes, an appropriate character test should not include diagnostic questioning by a health care professional, utilize diagnostic psychological screening tests, or include a review of medical records.
In Thompson v. Borg-Warner Protective Serv. Corp., 1996 LEXIS 4781 (N.D. Cal. 1996), the Northern District Court of California addressed the difference between impermissible psychological and allowable character tests according to the ADA. Thompson, 1996 LEXIS 4781. In Thompson, the plaintiff was required to take a personality survey when he applied for a security guard position. The test was administered by the employer, in a business setting, without the presence of a health care professional or the use of medical equipment. Id. The employer said that he used the "PASS-III" test as an "interview tool," rather than a measure of psychiatric conditions. Id. The plaintiff sued when he was not hired, claiming that the test was a determining factor in the decision to not hire him and that it violated the ADA. Id. The court applied the EEOC's suggested factors to determine whether the test was a prohibited medical psychological examination or a permissible survey of common personality traits. Id. at *22. The court weighed the EEOC factors and noted:
a number of those factors clearly weigh against the argument that the PASS-III survey is a medical exam: there is no evidence that the survey is administered or interpreted by a health care professional, that it is physically invasive, that it is normally given in a medical setting, or that medical equipment is used.
Id. at *17. Even though the plaintiff argued that the survey meant to detect "behavior problems" and "emotional instability," the court found that it was not designed to reveal a "mental impairment" as defined by the ADA and thus was not a prohibited medical exam. Id. at *18, *22. Character tests administered in similar circumstances should not violate the ADA.
Although appropriate character tests do not appear to violate the ADA's prohibition on medical tests generally, there are a number of related issues that should be considered relating to test administration, rather than substantive content. Generally, as discussed above at Part II, tests must be administered in formats that do not improperly disadvantage disabled applicants because of an impaired skill.
For example, this concern might arise with respect to dyslexic applicants if such tests include sections addressing spatial reasoning. Although dyslexic people may be quite qualified for any given job, they may be unable to perform spatial reasoning tasks. For persons without a disability, testing of spatial reasoning skills may be relevant to job performance. For an applicant with dyslexia, however, such testing may be impermissible. EEOC regulations regarding the administration of tests states that "individuals with disabilities are not to be excluded from jobs that they can actually perform merely because a disability prevents them from taking a test, or negatively influences the results of a test that is a prerequisite to a job." 29 C.F.R. Part 1630, App.
The regulations specifically advise that it may be unlawful to administer even a written employment test to a dyslexic if he has informed the employer of his disability; instead, the employer must make a reasonable accommodation and should administer an alternative oral test. Id. If the dyslexic does not request accommodation either before or during the testing (upon realization that they need accommodation), the employer is not expected to offer it. Id. Also, if an employer is specifically testing reading ability in the test because it is a required job skill, accommodation is not required. Id. Thus, if spatial skills are required job qualifications, without which an applicant could not perform the job, then the ADA may not prohibit the spatial reasoning section or require accommodation. However, if spatial reasoning is not a required skill or can be alternatively tested, and a dyslexic applicant requests accommodation, it should be provided.
The EEOC regulations apply the same reasoning and restrictions to blind applicants who cannot read a written test at all. Thus, if the ability to see is a required job skill, then the employer may not have to provide accommodation even if an applicant requests it. If an employer is only testing the ability to read, however, it should provide the test in an alternative form, like braille, at an applicant's request. Likewise, if a personality profile tests only the career goals and personality traits of applicants, then an employer provide reasonable accommodation (such as an oral or Braille test) at an applicant's request.
These issues are only examples of the types of ADA concerns that may arise in conjunction with an employer's implementation of character testing. The examples demonstrate that an employer must constantly inquire whether tested traits are job-related and consistent with business necessity and be prepared to apply tests flexibly where necessary.
Psychological, personality, and character testing can also raise issues concerning applicant's privacy interests. The primary litigation over these issues has taken place in California, where the state constitution guarantees the right of privacy. Although the New Mexico Constitution does not guarantee a right of privacy, New Mexico courts have held that employees may have a reasonable expectation of privacy with regard to some aspects of their employment. See Garrity v. Overland Sheepskin Co., 121 N.M. 710, 717, 917 P.2d 1382, 1389 (1996) Although it is unlikely that New Mexico would impose privacy restrictions as extensive as those in California, employees and applicants will clearly have some privacy interests.
In Soroka v. Dayton-Hudson, 18 Cal. App. 4th 1200, 1213 (1991), the court found that a psychological test used to evaluate Target store security guard applicants was prohibited by California's constitutional right to privacy. The Soroka "Psychscreen" test asked about the applicants' religious, sexual, and political beliefs to produce a psychological profile of the applicants.(5) Id. Based on California's constitutional right to privacy, the court applied a "compelling interest" test because the case involved the privacy rights of job applicants. Id. at 1210. The court held that when a clear, direct nexus between the nature of an employee's duty and the nature of the questions exists, the questions are permissible. Id. at 1212. Under the nexus test, if questions "specifically, directly, and narrowly relate to the performance of the employee's official duties," they are permissible. Id. at 1213 citing City Employees Assn. v. City of Long Beach, 227 Cal. Rptr. 90, 719 P.2d 660 (1986). Thus, if questions are posed to evaluate the specific abilities of an applicant to perform his or her potential duties, they are probably permissible even under the California standard. Most cases that address the privacy rights of applicants or employees deal with more personally or physically intrusive tests. Most of the cases addressing applicants' privacy interests involve prohibited social, religious, and political inquiries. Employers should attempt to steer clear of such personal and controversial issues when implementing a personality profile test.
IV. Drug And Alcohol Testing.
Drug and alcohol testing are increasingly popular means for employers to increase the safety and efficiency of their workforce, reduce workers' compensation claims, and reduce losses. While the benefits of drug testing can be great, the risks posed by implementing a drug testing program can be significant and daunting. This Part of the paper discusses the ADA's restrictions on drug and alcohol testing and discusses testing options and the risks and advantages posed by each.
The ADA places some restrictions on the types of drug and alcohol testing permissible in the workplace. Individuals who are currently using illegal drugs are specifically precluded from "disability" on that basis. It appears that drug use within two months of the test will be considered "current." See Collings v. Longview Fibre Co., 63 F.3d 828 (9th Cir. 1995), cert. denied, 516 U.S. 1048 (1996); Baustian v. Louisiana, 910 F.Supp. 274 (E.D.La. 1995). Therefore, it is permissible to conduct a drug test even before a job offer. The safer (and cheaper) course, however, would be to conduct a drug test after a job is offered but before employment begins, because the same test that can reveal the existence of illegal drugs may also reveal the existence of prescription drugs that indicate a disability. Since a test for the current use of illegal drugs is not a medical examination, employers may also drug test their existing employees without violating the ADA.
In contrast, an alcohol test will probably be considered a medical test. Alcoholism is a protected disability under the ADA and the EEOC takes the position that pre-offer alcohol testing is prohibited under the ADA. Note, however, that while status as an alcoholic is protected and an employer may have to make reasonable accommodations on that basis, employers are otherwise permitted to preclude employees from using alcohol during working hours. Because alcoholism is protected as a disability (assuming other requirements are met), an employer must show that a post-employment alcohol test is job-related and consistent with business necessity to comply with the ADA.
For the most part, drug and alcohol testing is not specifically regulated by statute in New Mexico. The State of New Mexico has enacted a drug testing policy for some state employees, but it does not have direct application to other employers. See 1 New Mexico Administrative Code 7.8 (1997). Federal law regulates drug and alcohol testing in some contexts, such as interstate transportation. Most private employers, however, will be able to construct their own drug and alcohol testing policies in New Mexico if they choose to do so.
Public employers face additional constraints on drug and alcohol testing because such testing is considered a "search and seizure" under the Fourth Amendment, which provides that citizens are free from "unreasonable searches and seizures." In order for a drug test to be reasonable for a public employer, federal cases hold that the test must either be based on reasonable suspicion that an employee is under the influence of drugs while on duty or based on "special needs." Benavidez v. City of Albuquerque, 101 F.3d 620, 624 (10th Cir. 1996). "This 'special needs' exception permits drug testing of employees in safety-sensitive positions, pursuant to a random or uniform selection process, and does not require a probable cause or even reasonable suspicion that an employee might be impaired." Id. Part of a uniform selection process may be a policy to test after accidents or safety violations. See Rutherford v. City of Albuquerque, 77 F.3d 1258, 1262 (10th Cir. 1996); see also Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 630-33 (1989). Tenth Circuit cases suggest that a public employer should clearly put employees on notice that they may be drug tested and then closely adhere to the types of testing identified by such notice. Rutherford, 77 F.3d at 1261.
Employers who implement their own drug testing programs have a number of options, depending on their particular needs. Each option has its own risks and advantages. Under each option, the employer should obtain appropriate consent forms from its employees to clearly place them on notice that they may be drug tested. Although such consent is not necessarily required, the consent forms can be effectively used later if the employee fails or refuses to take a drug test.
Applicant Testing. Some employers require a drug screen of every applicant for employment. As discussed above at Part II, a test for current use of illegal drugs may be conducted before an offer is given, but an alcohol test may only be given to an applicant post-offer (though it may be given pre-employment). Courts have held that employers owe reduced duties to job applicants as compared to existing employees, so applicant testing is considered the safest drug testing alternative. Liability is only likely where the testing is conducted in a particularly invasive or offensive manner (on theories of invasion of privacy or infliction of emotional distress) or in violation of ADA proscriptions. See, e.g., Kelley v. Schlumberger Technical Corp., 849 F.2d 41 (1st Cir. 1988) (employee awarded $125,000 for negligent infliction of emotional distress where the employer required an observer to be present during urination).
Reasonable Suspicion or For-Cause Testing. Some employers test current employees based on erratic performance or other indications that an employee may be under the influence of drugs or alcohol. Reasonable suspicion testing can be risky, since an employer will frequently have to base the suspicion on a supervisor or co-worker's subjective impressions of an employee's behavior or performance.(6)
Employees often argue that the employer did not have sufficient cause to test the employee for drug or alcohol use and that the employer tested the employee for drugs in violation of contract or based on some discriminatory basis, such as race, sex, or disability. Therefore, before conducting reasonable suspicion testing, an employer should ensure that the "cause" includes specific behavior or performance, preferably documented by more than one source.
Random Testing. Some employers test randomly across their entire workforce. Random testing raises the possibility of invasion of privacy concerns most acutely, because it tests current employees, but is unrelated to behavior or performance. With random testing, it is therefore particularly important to place employees on notice that they are subject to random drug testing and may be disciplined if they fail or refuse to take a random drug test. Such notice reduces employee's reasonable expectations of privacy and hence reduces the risk of an invasion of privacy claim. Random testing rarely gives rise to claims that the employer had discriminatory motives, since the selection is by definition random (note that the selection process must be truly random; otherwise, the employer takes on even greater risk in this area). Random testing is preferred by many employers because the existence of a random selection process is easier to show than "reasonable suspicion" to conduct a drug test.
Post-Accident Testing. Some employers require an automatic drug test after any accident of at least a minimum level of severity. This approach can be effectively used in combination with other testing methods. Post-accident testing provides some of the benefits of reasonable suspicion testing because it tests employees after a mistake has been made, but also provides some of the benefits of random testing because the testing is based on an objective event, rather than a supervisor's subjective belief. The key in implementing post-accident testing is to clearly define the types of workplace accidents that require a drug test and obtain employees' consent to drug tests in such circumstances.
V. Polygraph Examinations.
The Employee Polygraph Protection Act of 1988 (EPPA) restricts the use of polygraphs by employers. An employer may request a current employee to submit to polygraph testing as part of an "ongoing investigation" only if the test is conducted in connection with an investigation of economic loss or injury to the employer's business, if the employee had access to the property in question, and if the employer has a reasonable suspicion that the employee was involved in the incident.(7) Additionally, the EPPA requires the employer to provide written notice that any statement may be used to support an adverse employment decision, that any admission of criminal conduct may be communicated to law enforcement officials, and the employee must be informed of the right to consult with an attorney or other representative. There are other restrictions, and other disclosures that must be made to the employee; thus, an employer should be very familiar with the EPPA before using a polygraph examination.
The employer may not rely solely on the results of a polygraph test, or the fact that an employee refused to take a polygraph test, to discharge, discipline, or deny employment or promotion to an employee, although the results or failure may constitute additional supporting evidence for such an employment decision.(8) Federal regulations provide that reasonable suspicion for seeking a polygraph test may be based on information from a co-worker, the employee's conduct, behavior, or demeanor, and inconsistent statements made during an investigation.(9)
Even where polygraph testing is permitted under the EPPA, in New Mexico, a polygraph examiner is not permitted to ask questions relative to sexual affairs of an examinee, the examinee's race, creed, religion or union affiliation or any activity not previously and specifically agreed to by written consent. § 61-27A-12(H) NMSA 1978 (1993 Repl. Pamp.). Although this statute specifically pertains to the licensing of private investigators and polygraph examiners, employers should also avoid asking such questions during polygraph examinations because of the public policy expressed by the statute.
1. The burden-shifting framework was adopted in part by statute in the Civil Rights Act of 1991, 42 U.S.C. § 2000e-k(1).
2. Note that physical tests or demonstrations may be medical examinations if the employer measures the employee's physical or biological response to the physical test. So, while requiring an applicant to demonstrate how s/he would lift 30 pounds is not a medical test, measurement of an applicant's heart rate or blood pressure during performance would be a medical test. See Teresa L. Clark, A Map for the Labyrinth: How to Conduct Job Interviews and Obtain Medical Information Without Violating the Americans With Disabilities Act, 13 The Labor Lawyer 121, 124 (1997).
3. I am grateful to Deena Buchanan, an associate at Modrall, Sperling, Roehl, Harris & Sisk, for her work on psychological, personality, and character testing, which forms the basis for this Part of the article.
4. The battery of psychological diagnostic tests included: the Minnesota Multiphasic Personality Inventory (MMPI), the Inwald Personality Inventory, the Otis Lennon School Ability Test (IQ test), the Hilson Profile/Success Quotient Test, and the California Psychological Inventory. Barnes, 944 F. Supp. at 904-05.
5. The questions cited by the court included:
"I feel sure that there is only one true religion. . . . I have no patience with people who believe there is only one true religion. . . . My soul sometimes leaves my body. . . I wish I were not bothered by thoughts about sex. . . . I am very strongly attracted to members of my own sex. . . . I have never indulged in any unusual sex practices. . . ."
Soroka, 18 Cal. App. 4th at 1205.
6. In an unpublished decision, Anderson v. Exxon Coal U.S.A., 1997 WL 157378 (10th Cir. 1997), the United States Court of Appeals for the Tenth Circuit seemed to suggest that unsubstantiated allegations may be enough to support a drug test in some circumstances. The owner of another business told the employer that four of the employer's employees might be using illegal drugs. One of the employees argued that the employer did not have adequate cause to require a drug test. The employee handbook required a drug test only "where cause exists to suspect alcohol or drug use." The majority of the court focused on the definition of "suspect," which "establishes an extremely low threshold for cause,' understandably so where drug use is concerned." Because there was very little evidence of "cause" or "good or adequate reason," that the employee had ever used drugs, however, the dissenting judge would have upheld the jury verdict in the employee's favor. This case, which is not binding precedent because it is unpublished, points out the difficulty of determining what an employer should rely on in requesting an employee to undergo a drug test.
7. 29 U.S.C. § 2006(d). See also Rob D. Ramage, "Privacy Issues and Procedures of the Employee Polygraph Protection Act of 1988" in Barbara C. Neff, ed., Employment Law Basics 119 (Defense Research Institute Monograph, 1997).
8. 29 U.S.C. § 2007(a).
9. 29 C.F.R § 801.12(f). See also Blackwell v. 53rd-Ellis Currency Exch., 852 F. Supp. 646, 650, vacated on other grounds, 873 F. Supp. 103 (N.D. Ill. 1994).