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    Post Polygraph Use Does Not Violate Constitution


    The use of polygraph examinations by the FBI and the Secret Service to screen job applicants does not violate the Fifth Amendment, the Constitutional right to privacy, or the Administrative Procedure Act (APA), a D.C. federal district court ruled recently.

    In this case, two individuals applied for law enforcement positions with the FBI and four others applied to the Secret Service for Special Agent positions. All six were rejected after failing their polygraph examinations.

    The applicants filed suit against the FBI and the Secret Service, contending that the use of polygraph examinations in the application process violates the Fifth Amendment, their Constitutional right to privacy, and the APA. Specifically, the applicants alleged that they applied for employment with the two agencies, that as part of the application process they were required to take a polygraph examination, and that as a result of that examination they were not offered employment. They also argue that polygraph testing is unreliable, that their “false positives” improperly served as the basis to deny them employment, and that the polygraph results affect their potential employment with other law enforcement agencies.

    The court, however, rejected all of the applicants’ claims. The court began by explaining that to establish a Fifth Amendment procedural due process violation, the applicants must show that they were deprived of a constitutionally protected interest. In this case, the court stated, the applicants could proceed under one of two theories – “reputation-plus” or “stigma or disability.”

    Under the “reputation-plus” theory, an employee’s liberty interest is infringed when there is “official defamation” accompanied by either a “discharge from government or at least a demotion in rank or pay.” In this case, the court concluded that the applicants could not satisfy either prong of this theory. First, to be defamatory, the Government-disseminated information must be false. Here, the court explained, while reports that they failed their polygraphs may imply that they had lied or used illegal drugs, the reports were technically accurate – there was no dispute that the applicants did, in fact, fail the polygraph exams. Therefore, there was no defamation. Second, the court added, the applicants were neither discharged nor demoted – they were merely not offered a position. Thus, this theory fails, the court determined.

    The applicants fared no better under the “stigma or disability” theory. Under this theory, the government action and stigma must “seriously affect, if not destroy” the individual’s ability to pursue his chosen profession. Here, the court pointed out that the applicants conceded that they had no evidence that the agencies disseminated their polygraph results, or that they were denied other jobs because of their polygraph exams. Moreover, two of the applicants who were rejected by the Secret Service attained law enforcement positions with the Department of Homeland Security and the U.S. Drug Enforcement Administration, despite having failed the Secret Service’s polygraph exam. Accordingly, the applicants were unable to prevail under this theory either, the court found.

    The applicants also claimed that the agencies violated their constitutional right to privacy because they were questioned about their medical, psychological, sexual, criminal, and drug use histories during their polygraph exams. In particular, the applicants challenged the Secret Service’s practice of asking applicants whether they had committed adultery and other sexual crimes. The court again dismissed the applicants’ argument, stating that they were applying for positions of public trust concerning the security of the nation and of its elected officials. “Therefore, even assuming there exists a constitutional right to non-disclosure of private information, [the FBI and Secret Service] can legitimately inquire into the applicants’ financial, drug use, health, and criminal history,” the court stated.

    With respect to the Secret Service’s specific questions about adultery and other sexual crimes, the court added that the Secret Service “has made a reasonable determination that there is a danger if its employees in sensitive positions could be blackmailed for some reason. The Court will not second-guess that conclusion, and therefore the agency can legitimately ask whether applicants committed adultery or serious crimes.”

    Lastly, the court addressed the applicants’ claim that the agencies’ actions violated the APA. Specifically, they argue that the agencies violated their own regulations in denying employment solely on the basis of failed polygraph exams, and that the agencies’ practice of denying employment solely on the basis of failed polygraph exams is arbitrary and capricious. However, the court found both of these arguments without merit. Accordingly, the court ruled in favor ofthe FBI and Secret Service.

    The case is Croddy v. FBI, U.S. District Court for the District of Columbia,
    Civil Action No. 00-651 (EGS), September 29, 2006.
    Last edited by Big Sexy; 10-14-06 at 11:05 PM.
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