Test Defamation in the Workplace: False Positive Results in Attempting to Detect Lies, AIDS, or Drug Use
Elaine W. Shoben · bepress Legal Repository · 1988
Workplace tests given to applicants or employees can be divided into two general types: (1) Tests with results that measure ability or performance on a continuous, comparative scale and (2) tests with essentially dichotomous results indicating the truth or falsity of some fact about the worker.Aptitude tests or quantified supervisorial ratings fall into the first category.They have been the subject of substantial litigation' brought primarily 2 under Title VII of the Civil Rights Act of 1964.1 In contrast, the second category of workplace tests has received comparatively little judicial attention.This group includes drug tests, other medical tests such as those for the AIDS antibody, and truth-detection testing.This second category of workplace testing has engendered social controversy' and litigation concerning invasions of privacy 5 and constitutional or common law protections against unreasonable intrusions or searches.'A separate issue has not yet received sufficient attention: The problem of injury to reputation through the predictable number of false results on such tests.This second category of tests is defined here as tests producing results that are "all or nothing" in the sense that the truth sought by the test is an absolute yes or no rather than some shaded judgt Professor, University of Illinois College of Law.The author wishes to thank the participants in the Illinois Faculty Workshop for comments during the drafting of this article.' See, for example, Connecticut v. Teal, 457 U.S. 440 (1982); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Griggs v. Duke Power Co., 401 U.S. 424 (1971). 2 But see Washington v. Davis, 426 U.S. 229 (1976) (Fifth Amendment due process challenge to aptitude testing).42 U.S.C. sec.2000e et seq.(1982).' Although interpreting polygraph, drug and AIDS antibody tests often requires shaded judgment by the interpreting examiners, the reported result is "positive" or "negative."This article distinguishes only between the manner in which different results are typically reported, not the methods of determining those results.Conversely, the reported result on an aptitude test is sometimes stated in terms of a cut-off score, thus producing a dichotomous pass/fail result.This form of reporting does not change the essential character of the test as understood by the public, however.An aptitude test-taker might ask how close the score came to the cut-off, whereas one would not ask whether a urine sample came "close" to passing a drug test.The aptitude test result is known to be a scaled, continuous judgment, whereas the drug test is considered either positive or negative.Sometimes purity/taint tests are deemed "ambiguous" in result, such as an "inconclusive" polygraph test result.Again, the report is not understood to indicate a result "close" to a category; it is simply taken to indicate that the test did not work.The equivalent in aptitude tests would be the inability to administer the test at all because it was written in a different language than that known by the examinee.8 This article focuses on polygraph tests for lie detection in employment, but another device is the psychological stress evaluator.For a factual and legal discussion of this test, see William H. Kenety, The Psychological Stress Evaluator: The Theory, Validity and Legal Status of an Innovative "Lie Detector," 55 Ind. L. J. 349 (1980).' Many types of such tests may appear in various workplace contexts, such as an x-ray of a baseball player's bat to check for illegal cork.See Peter Alfano, New Baseball Test: X-Rays for Suspect Bats, The New York Times sec.A, 1 (Aug.8, 1987) (x-ray of bat used by Mets third baseman Howard Johnson after he hit a long home run).1o Conversely, a false negative result is one incorrectly indicating the absence of the item being tested.A false negative on a drug test is a result showing no drug traces when in fact the traces are there.A false negative on a polygraph test is a result indicating that the truth was told when in fact the examinee lied.A false negative on an AIDS test is the report of no AIDS antibody, when the AIDS antibody is present.See, for example, Andrew Vernon, Melissa H. Hoagland and Elizabeth J. Perlman, AIDS Wrongly Diagnosed, 258 J. A.M. A. 2063 (1987) (letter to the editor by doctors at the Johns Hopkins Hospital concerning incorrect diagnosis of patient after positive AIDS test that was subsequently proven to be a false positive).For an explanation of false negatives and false positives in the context of drug testing, see Philip J. Bigger, Urinalysis: Issues and Applications, 53 Federal Probation no. 4, 23 (1979).For an explanation of false positives in the AIDS context, see Taunya Lovell Banks and Roger R. McFadden, Rush to Judgment: HIV Test Reliability and Screening, 23 Tulsa L. J. 1, 6-9 (1987).See text at notes 18-34.11 See the report of the Council on Scientific Affairs in Scientific Issues in Drug Testing, 257 J. A.M.A. 3110 (1987) ("Council Report").But see Editorial, Toilet Patrol, The Christian Science Monitor 17 (February 24, 1987) (editorial citing opinion of Attorney Gen-