Can They Do That? How You Get Screwed at Work
Editor's Note: The following is an excerpt from Can They Do That? Retaking Our Fundamental Rights in the Workplace. An AlterNet review of the book by Liliana Segura follows the excerpt.
Sibi Soroka was shocked. He had applied for a job as a security guard at the local Target to provide some steady income while he pursued his career as an actor. At the end of the process, he was required to take the Minnesota Multiphasic Personality Inventory, a psychological test used by many employers. The tests included questions about his sex life, religious beliefs, intimate feelings about family members, and even his bathroom habits.
"I couldn't believe anyone would ask me such personal questions," Soroka said. "These are questions you wouldn't even answer for your own mother, let alone some personnel director at a company." The more he thought about it the more upset he became. When the company called him to offer him the job, he told them to find somebody else; he didn't want to work for a company that treated people this way.
Soroka is not alone. An estimated 15 million Americans are required to take the MMPI every year, including two million people who are required to take it as part of applying for a job. Applicants who are forced to take the test range from doctors and priests to retail sales clerks. The test has been translated into 115 different languages, including Hmong, Turkish, and even sign language. The MMPI is only one of many psychological tests used by employers, According to the American Management Association, over 40 percent of employers nationwide use psychological tests, including eighty-nine of the Fortune 100.
History of Personality Testing
How did so many employers come to use such an invasive test? Like so many other pecularities of corporate life, it is more of a historical accident than deliberate policy. Large-scale personality testing began during World War I, when the Army turned to Columbia University professor Robert Woodworth to help identify recruits who would be undable to withstand the stress and trauma of battle. Woodworth's test was crude; he used questions like "Does the sight of blood make you sick or dizzy?" It was limited to the single psychological dimension that Woodworth called neuroticism, which he thought would predct those who would develop shell shock (today called post-traumatic stress disorder, PTSD) if put into combat. But the idea of a written test that would reveal the mysteries of human personality caught the attention of other psychologists.
One of them was Starke Hathaway. Hathaway worked in a state mental hospital in Minnesota and wanted a more systematic way of diagnosing the problems of the inmates than the subjective observations of his staff. After years of effort, he created th MMPI in 1942. Because he was trying to gain insight into deep-seated and serious mental conditions and dealing with inmates in a mental institution, he gave little to no thought to the intrusiveness of his questions.
World War II was the largest employment project in American history. Millions of people had to be selected, evaluated, assigned to specific positions, and trained. The sheer numbers involved forced the military to develop systems for these purposes. After the war, employers faced with the challenge of bringing millions of veterans back into the civilian economy adopted many of these practices. When they looked for a test to help evaluate people's personalities and the jobs they might be best suited for, the MMPI was the only game in town. It quickly became an industry standard. It also became an industry of its own. Test publishers and psychologists started making a living (sometimes a handsome one) around the MMPI and acquired a strong financial interest in protecting it.
Excerpted from CANTHEYDOTHAT?: RETAKING OUR FUNDAMENTAL RIGHTS IN THE WORKPLACE by Lewis Maltby by arrangement with Portfolio, a member of Penguin Group (USA), Inc., Copyright (c) Lewis Maltby, 2009.
And so the MMPI was installed in the machinery of corporate hiring practices for years to come. Remarkable in a way, but also weirdly fitting. The fact that a test conjured up by a former psychologist at a mental institute remains part of the application process for modern American corporations captures rather perfectly how much of ourselves we surrender when we are beholden to them.
Just how much is on full display in Lewis Maltby's new book, Can They Do That? Retaking Our Fundamental Rights In The Workplace (Penguin, 2009). Broad in scope, but straightforward and utilitarian, it's an eye-opening read about the tyranny of the corporate workplace. It is also a call to action. At a time when some 20 percent of employers require new hires to agree not to sue the company for violating their rights, Maltby believes that the power corporations wield over their employees has gone too far.
As President and Founder of the National Workrights Institute in New Jersey, Maltby has seen a lot of messed up things over the years: A woman fired for the bumper sticker on her car; a man fired for asking George W. Bush a question about the Iraq war at a political rally, a general manager keeping his job despite being discovered to be spying on his female employees in the bathroom, and so on.
His overarching warning is that the things we consider to be basic rights -- rights we don't give much thought to until they are violated -- pretty much vanish when we enter the workplace. There is no such thing as privacy. Nor is there a right to free speech. Indeed, as Maltby writes, "You lose your rights before you even get a job."
Many employers now conduct extensive investigations into prospective employees. If you've ever been arrested, you probably won't get the job, even if you weren't found guilty. If your credit history is spotty, it can cost you a job, even if the job has nothing to do with handling money. Other employers turn down people because of their driving record, even for jobs that don't involve driving. And even if your background is spotless, you can still lose your job because the information broker gets you mixed up with somebody else with a similar name.
The erosion of privacy at work is especially notable now that there are so many new forms of communication for employers to keep tabs on. From e-mails to surfing the web, chances are everything you say or do on the internet may be monitored by your boss -- even if you're not doing it on company time. Whether this is justifiable or not is a hot topic right now; the U.S. Supreme Court accepted a case last month on the question of whether or not employees have a "reasonable expectation of privacy" on communications sent and received via employer-issued hand-held devices. Although the case involves government workers -- a police SWAT officer who sent text messages to another officer with whom he was having an affair -- according to the Washington Post, "a broadly written decision could hold a blueprint for private-workplace rules in a world in which communication via computers, e-mail and text messages plays a very large role."
"It is is the first involving the new generation of communications technology," Maltby said. As he points out in Can They Do That?, currently "the only significant federal law dealing with workplace privacy is the Electronic Communications Privacy Act (ECPA), a 1986 amendment to federal wiretapping laws." Even on the phone communications it sought to protect, the law works better in theory than practice; as for newer communication, it doesn't even apply.
"This means that we have no legal protection when it comes to employer surveillance of e-mail, instant messages, Internet access, and hard drives," writes Maltby. "Even if you could prove that your boss read your personal e-mail for his own amusement, you would not have a case."
Perhaps this does not come as news to some people, but unless you are an employment lawyer, chances are other information contained in the book will. (I confess, reading it over my employer-issued laptop, the book gave me pause.) Each chapter begins with an anecdote that serves as a potent nugget of outrage. There's Kimberly Kelly, the single mother and "model employee" at Eli Lilly who was fired for bouncing a $60 check. Or Sam Vaughn, the truck driver who was suddenly fired via snail mail -- along with 1,200 other employers -- losing his health benefits and succumbing to cancer months later after having to stop his cancer treatment. There's Terri Sergeant, who lost her job as an office manager at an insurance broker after testing positive for a rare genetic disease. And there's Daniel Wynn, an Indiana man who was fired for the terrible crime of drinking beer with his buddies on a Friday night. "He wasn't an alcoholic. He didn't come to work under the influence, or even suffering from a hangover. The owner of Best Lock, in Indiana, was a teetoler who believed that drinking was a sin."
Aside from the cold and often arbitrary nature of such firings, what's surprising is just how paltry the legal recourses are for most employees to redress what at first glance seem like egregious abuses of employer power. When the female employees at a plant in Pendergrass Georgia discovered a hidden video camera installed directly over the toilets in the women's bathroom, they did the obvious thing and sued, only for the company to turn around and say that what their boss, Tim Johnson, had done was not illegal. "The women thought this argument was preposterous. But their lawyer explained that it wasn't far-fetched at all." If Americans right to privacy is not explicit in the Constitution, it is basically non-existent when it comes to their workplace. "Moreover, there was no law in Georgia prohibiting secret video surveillance, even in bathrooms. They could try to convince the judge to let the case go to a jury on a general theory of privacy, but there was no guarantee that they would be successful. Faced with the prospect of defeat, Allen and her coworkers accepted a modest settlement. Tim Johnson kept his job."
As with the story of the Minnesota Multiphasic Personality Inventory, Maltby does a good job of showing how bad policies are created, often as an accident of history. Among those bad laws born of shoddy research and the flawed thinking of a small number of individuals are legal statutes having to do with workers rights, laws that have been upheld despite having no legitimate original basis. Writing about employment at will -- the entrenched notion that employers have the right to hire and fire without warning or justification -- Maltby cites an "obscure legal writer from Albany" named Horace Wood who, in 1877, wrote a paper that claimed that U.S. law defined the employer/employee relationship as basically no strings attached: an employer could fire an employee for any reason -- or no reason -- at all. Likewise, workers had the "supposedly equal right to quit at any time without reason." (Never mind the lopsided power dynamic.)
Wood wasn't much of a scholar. He cited only four cases in support of his claim that employment at will was the law of the land. To make matters worse, in not one of the four cases Wood cites did the court rule that employment was at will. One of the cases wasn't even an employment case. In another, the court held that the employee's termination was illegal and awarded damages. If Wood had produced this work in a decent law school, he probably would have failed.
Nevertheless, courts started using Wood's analysis in their rulings, to support decisions in favor of employers' rights to fire at will. "By the turn of the century," writes Maltby, "Wood's rule had become American law."
Now that we are poised to begin using invasive body scanning technology at airports -- and have yet to discover the full dimensions of the massive government spying program that began under Bush -- encouraging Americans to retake their basic rights to privacy in the workforce seems like an almost quaint idea. From "pre-emptive" police raids against protesters to the Patriot Act's national security letters, Americans have surrendered a good deal of their rights (not to mention democratic ideals) in the name of national security after 9/11. But if the policy debates around torture or preventive detention seem too out of reach for many members of the corporate workforce, the every day indignities described in Can They Do That? will likely hit close to home.