JOURNAL Houston Polygraph Fails Court Test AUSTIN In late October a seven-member federal jury unanimously decided that questions asked in an initial “control” portion of a polygraph test, which the city of Houston administers to all applicants for public safety positions, are a violation of an individuals right to privacy under both the Texas and U.S. constitutions. “The jury’s decision in this case may have significant ramifications in other cases involving employees’ rights,” Jim Harrington, the Texas Civil Liberties Union Legal Director who represented the plaintiffs, said in an Austin interview. “By choosing to decide the case as an individual rights matter, the jury affirmed that there are limits on how much an employer can intrude on an individual’s private life, even in situations where public safety may be involved. This goes against what employers have been saying, which is that they have the right to ask individuals seeking a job in their businesses anything they want to.” The plaintiffs in the case claimed to have been asked questions including whether they had ever had sex outside of marriage, whether they had masturbated as teenagers, whether they had ever used illegal drugs, or whether anyone in their family had ever had problems with the law. All three plaintiffs were turned down for positions because they failed the polygraph test. Houston Senior Assistant City Attorney John Fisher offered an argument currently popular in the drug-testing debate. “Our position was that an individual’s right to privacy varies according to the degree of sensitivity of the job,” Fisher said. “The jury obviously did not accept our premise that a police officer’s job is fundamentally different from that of a clerical worker’s, and that because of the sensitive nature of these positions an individual must yield a certain amount of personal privacy when he or she applies for the job.” Public-safety positions, according to the city of Houston, are police and airport security officers and firefighters. Fisher said that the control questions are necessary because they are a means to determine which areas to focus on in the actual polygraph test, which is used to determine whether an applicant has a criminal history. Even though they had the option of deciding only whether the questions in the 14 NOVEMBER 24, 1989 test were rational, jurors chose instead to focus on the privacy issue, which illustrates one of the strengths of trying this sort of case before a jury, Harrington said. “I think the jurors responded personally to the kind of questions the plaintiffs in this case were asked, and they reacted with a strong sense of what an unnecessary invasion of privacy the questions presented,” Harrington said. “I recently lost a drug-testing case in Austin I tried before a judge, but I think the outcome may have been different if the case had gone before a jury. The judge knows he’ll never have to undergo drug testing, but when you put this kind of case before regular people, and talk about how humiliating the process can be, they see it for the intrusion of privacy that it is.” LOUIS DUBOSE Jim Harrington While the verdict may be a harbinger of future jury decisions in drug-testing cases, it could represent the final nail in the coffin for the use of polygraph tests as prescreening devices. Most experts no longer consider polygraphs reliable for this purpose, and there has been a trend throughout the country to do away with their use, according to Harrington. The plaintiffs in the case, John Woodland, who applied for a firefighter position; Ramdeo Jagassar, who applied for a position on the Houston Police Department; and Chris Goss, who applied to work as an airport security guard represent each of the three classes who had been subjected to polygraph tests administered by the city of Houston. At a hearing on December 4, U.S. District Judge Lynn N. Hughes will consider a classaction request by Harrington to limit the kinds of questions the city can ask on the tests. The judge will also determine the amount of back pay the plaintiffs should receive, and whether or not those rejected on the basis of polygraph results should be reconsidered for employment. -BETSY BLAIR Betsy Blair is an Austin freelance writer. Austin Environmentalists Assail Ross Perot AUSTIN Ross Perot hasn’t won many friends in the Austin environmental community lately. Though the Dallas billionaire has been lionized by the national and local media for underwriting the effort to save the poisoned Treaty Oak in Austin, he is forced to confront environmentalist activists who claim one of his local projects is a threat to migratory song birds. Members of the Sierra Club, the Audubon Society, and Earth First have expressed their concern over Perot’s plans to proceed with a 3.2-million-square-foot building near Lake Travis. The Four Points Center, at the intersection of state highways 2222 and 620, west of Austin, will destroy more than 200 acres of mature juniper trees, prime nesting area for the rare Goldencheeked Warbler. The population of the small migratory songbird has been declining precipitously over the past few years, a direct result biologists say, of continued development in the Hill Country. Perot recently came face to face with some 20 placard-carrying Earth First activists after a speech he gave at the University of Texas in Austin. Perot was asked by a Dallas TV news crew to step outside, where the “light was better.” Once outside, Perot had little choice but to respond to the environmental activists, who confronted him with questions about the Four Points development. Perot contended that he acted in good faith, as he will leave undeveloped 90 acres of the 300-acre tract of land. “Depending on who you talk to, you’ve got a small group that says this [the warbler habitat] is a problem,” Perot said in a telephone interview. “You’ve got a group of ecologists that say it’s not a problem and it just moves back and forth. When we set 90 acres aside, for what may not be a problem, that’s a pretty strong statement. I guess I could summarize this whole thing. Clare Booth Luce has a statement: ‘No good deed ever
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