Earlier this month, we discussed what your polygraph options are as a member of the clearance community when you’re telling the truth, the whole truth, and nothing but the truth – but you fail the examination anyway due to severe anxiety. (The short answer is: not much. A failure or inconclusive result is enough for a “suitability denial,” though if this affects you—and it happens to a lot of people—it’s worth checking out the article and learning the facts.) And a while back, we discussed the insidious “guilt grabbers”—when a good, and oftentimes deeply honest, emotional person is asked a question, tells the truth, but is flagged for lying simply because he or she feels guilt for thinking about doing wrong.
But failing a poly implies that you are both physically and mentally suited to taking the test in the first place. And that’s not everyone. The Americans with Disabilities Act and the Rehabilitation Act play a role in the polygraph process, but as with all things clearance related, the rules aren’t so cut and dry as, say, someone who might need a wheelchair ramp or an ergonomic keyboard.
WHO WON’T BE TAKING THE TEST
Before we get to those with disabilities, let’s talk about who won’t be taking the polygraph exam. During the polygraph pre-interview, if you are on certain medications known to affect the polygraph results, it will come out and you will be deemed unsuitable for testing. (Don’t bother sneaking beta blockers or Xanax before the poly thinking you’ll get away with it. First, as Dr. Leonard Saxe of Brandeis University told ClearanceJobs recently: “Polygraph tests are not a valid technique for assessing truthfulness… The fundamental problem is that there is no unique physiological response to lying.” He has spent thirty years studying the polygraph. The American Psychological Association and the National Academy of Science concur with his assessment.
In any event, contrary to what you might read on Internet forums, peer-reviewed, scientific studies suggest that anti-anxiety and other medicines yield no statistical benefit for “beating” the polygraph examination—except to the extent that examiners are more likely to figure out, hey, this person has drugged herself. And that won’t go over well. Moreover, if you are pregnant or suffer a heart condition, you will not likely be subjected to the polygraph.
THOSE WITH DISABILITIES
The Americans with Disabilities Act of 1990 and its 2008 amendments prevent industry from discriminating against otherwise qualified employees and and would-be workers. They are required to make “reasonable accommodations.” This means they should reasonably accommodate your request for the desk that will not exacerbate your severe claustrophobia, or the ergonomic chair that won’t exacerbate that deep vein thrombosis. On the other hand, if your job is to carry fifty-pound boxes for a living and you have no arms or legs, there is no likely reasonable accommodation that can help you. If you are a contractor in the cleared workforce, the ADA applies to you. If you work for the federal government, you fall under a similar law called the Rehabilitation Act of 1973, with similar purposes.
“The federal government has granted itself a lot of leeway to deviate from disability and equal employment opportunity laws when it deems it necessary,” says Sean Bigley, an attorney practicing security clearance law and a regular ClearanceJobs contributor, “From a legal perspective, this is called the ‘national security exception.’” Title VII of the Civil Rights Act of 1964 prohibits discrimination based on national origin, race, sex, color, or religion. But there is a caveat to this. As the law states:
Notwithstanding any other provisions of this title, it shall not be an unlawful employment practice for an employer to fail or refuse to hire and employ any individual for any position, for an employer to discharge any individual from any position, or for an employment agency to fail or refuse to refer any individual for employment in any position, if—
(1) the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive Order of the President; and
(2) such individual has not fulfilled or has ceased to fulfill that requirement.
And if the polygraph is required, it would constitute a “requirement imposed in the interest of the national security of the United States.”
Bigley advises: “In any disability situation, it is best to get on record with the disability early. This may help avert erroneous assumptions by the agency in the event of polygraph results that are inconclusive or register purported deception.”
THE BODY AND THE MIND
When it comes go the polygraph, there are two ADA or Rehabilitation Act areas that might come into play: the physical and the mental.
The physical might involve a war veteran who lost his arms in Afghanistan. “How it would play out, regardless of the nature of the infirmity in a polygraph, would really boil down to if they could do it,” says Kel McClanahan, a national security lawyer (adding that this is a general legal analysis and not a policy analysis). “Say you don’t have fingers to strap into the thing. In a polygraph, they have five or six different things they measure. They have you sit on something. They have it around your chest to measure your breathing. They have it on your finger to measure your pulse, and so on. You could make the argument, for instance, that you are a double amputee. You don’t have a finger they can strap onto, that they could do four out of the five. And that would be a reasonable argument. It might not win, but it would be something that I wouldn’t feel bad litigating.”
If a candidate said he or she couldn’t enter the tiny room with the polygraph machine because of some sort of PTSD or claustrophobia, but, hey, I’m happy to take the test in the hall or the cafeteria or the parking lot, that’s the request for a reasonable accommodation. “The agency,” says McClanahan, “would have to make a good argument, like the machine is built into he room and can’t be moved and we don’t have any portable devices.” You could ask them to get a portable device, and they might respond that, well, that would mean your test was different from everyone else’s.
Still, says McClanahan, it’s a legal argument. The more difficult it gets to accommodate a polygraph candidate, the less likely it is that you will get accommodated. “What is a reasonable accommodation? That’s at the core of the issue.” He says he would be stunned if any agency honored a reasonable accommodation of: Don’t polygraph me.
“If you say you cannot be touched by machinery because of your PTSD from the robot apocalypse, then agencies are going to say no: we have a compelling reason—a compelling agency purpose—and it is security. And we can’t have people just not take the polygraph.”
Moreover, if challenged, the agency would have a strong defense. In the Department of the Navy v. Egan, a case that went before the Supreme Court in 1988, the court affirmed that in clearance matters, the president’s power “exists quite apart from any explicit congressional grant.” And that power sustains the entire clearance apparatus of the United States.
HAVE YOUR PAPERWORK READY
McClanahan concurs with Bigley that when it comes to psychological issues or disabilities that would affect your polygraph results, your best bet is to get ahead of the examiner. “A person with a psychological issue going into a polygraph should tell the polygrapher up front: I have been diagnosed with ADHD or PTSD or some nervous disorder. Here is the diagnosis from a doctor,” says McClanahan.
“The polygrapher will take that into account, and the security people reviewing it will take it into account and maybe decide, OK, in a standard case I would rule this is inconclusive, but the reasons it is inconclusive track with the symptoms of the thing that he gave us the doctor’s note for. So I’ll say he passed. But they still give you the test. They just view the knowledge of whatever it is you are claiming as information for how to interpret the test.”