Nation's Largest Security Guard Firm to Pay Up to $2.1 Million to Settle Class Action Against Employee "Political Litmus" Test


For Immediate Release: June 4, 1998

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 ("Most companies make too much profit"), employers, workers' rights and drug and alcohol laws ("Marijuana should be legalized"). The suit, Thompson v. Borg-Warner, 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, 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 $1250 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:

• 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.

Attorney Linda Foy noted, "Employers have a legitimate right to information about an applicants' job-related qualifications. 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 said.

"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," explained attorney Brad Seligman. "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."

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 ACLU-NC staff attorney Ed Chen. "The effect of this test was to discriminate against people who held liberal views on issues such as workers' rights and drug legalization. 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. 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.