The 5th Circuit Court of Appeals, which has jurisdiction over Texas employers, has refused to say that Title VII prohibits the use of polygraph examinations in harassment investigations. Now juries get to decide whether forcing an employee to undergo a polygraph exam is retaliation for filing a complaint.
Recent case: Kimberly Parks filed a sexual harassment complaint against her supervisor. When her employer investigated, it found no direct evidence, just a “he said, she said” situation. That’s when the employer asked Parks and the supervisor to take polygraph exams.
Parks refused, while her supervisor agreed. He allegedly passed the test. Parks was fired for filing a false harassment complaint, based, in part, on her refusal to take the test and the accumulated evidence that her charge was unfounded.
Parks sued, alleging that the request to take a polygraph was retaliatory on its face. But the court disagreed. It said that Parks’ case was not one where everyone who filed complaints had to take the test. Instead, the exam was part of an ongoing investigation and the request was triggered by the lack of sexual harassment evidence.
In fact, the court went so far as to say a polygraph threat wouldn’t have a chilling effect on employees because “we believe that it is highly improbable that legitimate victims of sexual harassment would be deterred from filing a harassment complaint simply because they might be asked to submit to a polygraph test.” (Parks v. Mississippi Department of Transportation, No. 06-61063, 5th Cir., 2007)
Final note: Before instituting a polygraph policy, check with counsel. The reliability and legitimacy of polygraphs are the subjects of significant disagreement and debate in the scientific community.
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