'Political Litmus' test case
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Millions to Settle 'Political Litmus'
Test Case
FOR IMMEDIATE RELEASE
Thursday, June 4, 1998
SAN FRANCISCO -- Burns International Security Services, a
subsidiary of Borg-Warner Protective Services Corporation --
the nation's largest security firm -- has agreed to pay up to $2.1
million to settle a class action challenge to its use of a
controversial pre-employment test that asked probing questions
about job applicants' attitudes toward corporations, employers,
workers' rights and drug legalization.
The suit -- Thompson v. Borg-Warner -- was filed in 1994 by
the American Civil Liberties Union of Northern California,
cooperating attorneys from Howard, Rice, Nemerovski, Canady,
Falk & Rabkin and Berkeley civil rights attorney Brad Seligman.
It charged that the test discriminated against job applicants based
on their political beliefs and affiliations.
Under the settlement, which must be approved by San Francisco
U.S. District Court Judge Marilyn Hall Patel, Burns has already
paid $1.6 million into a fund that will provide up to $1,250 to
each applicant who was rejected because of the test and $500 to
those who took the test and were nevertheless hired. About
8,000 applicants took the test. The fund will also cover costs and
attorneys fees for the plaintiffs.
Applicants were asked to answer "Yes" or "No" to 100 probing
questions about their personal beliefs, including:
Most companies make too much profit.
Marijuana should be legalized.
Workers usually come last as far as most companies are
concerned.
Most employers try to underpay their employees if they
can.
Companies provide only what they have to for worker
comfort.
Most employers really care about improving working
conditions for their employees.
Most bosses are fair to their employees.
The drinking age should be lowered.
The government has no right to interfere with a person
who chooses drugs if its doesn't hurt anyone.
Illegal use of marijuana is worse than drinking liquor.
Responses were scored according to a grading manual and
applicants were ranked "High Risk," "Medium Risk" or "Low
Risk" for hire.
"Employers have a legitimate right to information about an
applicants' job-related qualifications," said attorney Linda Foy.
"However, that right does not permit an employer to require job
applicants to disclose their political beliefs and opinions, nor to
base employment decisions upon their responses.
"Having to take this test had a chilling effect even on those
applicants who gave theoretically 'right' answers," Foy added.
Attorney Brad Seligman added that the test was apparently
adopted as a marketing tool by Burns, whose executives never
really examined whether the test would be either effective or
legal.
"This case illustrates the high price a company may pay for
unthinkingly subjecting job applicants to a test that discriminates
or needlessly invades their privacy," Seligman said.
Lead plaintiff Mel Thompson, an experienced security guard who
applied for an unarmed guard position in San Francisco, had
been told he was an excellent prospect for hire until he took the
test. For questions that probed his political beliefs, rather than
answering "Yes" or "No," Thompson checked "?" on the test.
Following the test, he was not hired by the company.
"I always thought that the difference between a totalitarian society
and a free one, would be that workers have a right to their
political beliefs," Thompson said. "It's a dangerous precedent
when the free exercise of one's conscience rules one out of
employment opportunities."
The lawsuit, a class action on behalf of all applicants and potential
applicants for employment with Burns in California, charged that
the company's use of the test violated California Labor Code
Sections 1101-1102, which prohibit employers from
discriminating against employees and applicants based on their
political attitudes, activities and affiliations. The lawsuit also
charged that the use of the test was an unlawful business practice
under the Business & Professions Code Section 17200.
"It is crucial that employers be prevented from dictating the
political beliefs of their employees," said Ed Chen, staff attorney
of the ACLU of Northern California.
"The effect of this test was to discriminate against people who
held liberal views on issues such as workers' rights and drug
legalization," Chen said. "Fortunately, California labor laws
prohibit employers from discriminating on the basis of political
views and activities."
The suit is one of the largest cases concerning employees'
political activity in California. The ACLU said its outcome will
have a broad impact on the nature of employment testing
throughout the state.
Plaintiffs are represented by ACLU-NC staff attorney Ed Chen
and cooperating attorneys Brad Seligman, and Laurence Pulgram
and Linda Foy of Howard, Rice, Nemerovski, Canady, Falk &
Rabkin.
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