Handwriting analysis, the science of understanding the character and personality from one’s handwriting, has enjoyed increased popularity and increased use over the last decade. With the change in frequency and intensity of the use of handwriting analysis, several legal questions have arisen. This article will attempt to deal with some of the most frequently asked questions on this science. Because state laws vary from jurisdiction to jurisdiction the material contained herein should not be viewed as universally true.
The Employee Polygraph Protection Act and its Effect on Handwriting Analysis
Employers are constantly attempting to find new methods of testing to ensure employee honesty, as well as determine as much as they can about a job applicant’s personality before hiring those persons. In most employment applications, these tests and devices are used simply to ease the employer’s mind about who they are hiring to work for them. Polygraph machines as screening tools for employment applicants have been widely used in the United States. Between 1978 and 1989, American employers implemented approximately 2,000,000 polygraph exams per year for prospective employees. In response to claims by prospective employees that their privacy was being invaded by these tests, the Reagan Administration enacted the Employee Polygraph Protection Act. Under this Act, it became illegal to use a polygraph device in private employment application procedures as a means of randomly evaluating current employees or to screen an employment applicant.
Since the passing of the Employee Polygraph Protection Act (the “Act”) in 1989, employers have had to rely on other means of personality testing to screen applicants. Handwriting analysis has become one of the favorite methods of employee application screening, since passage of the Act.
The Use Of Handwriting Analysis and its Implications With the Right to Privacy.
One of the main issues raised in using handwriting analysis as a tool for screening a job applicant is the right to privacy. Some applicants feel that their handwriting is a private matter and for an employer to provide that handwriting to a professional analyst for analysis violates that right. Several cases have arisen in the criminal context which deal with the right to privacy in the United States and can be applied to handwriting analysis. For example, a person has no right to privacy for their likeness. That is, if a person walks down the street and someone takes their picture, that action does not violate their right to privacy. Similarly, the sound of a person’s voice is not protected. Although wire tapping and recording may be illegal if done over the telephone, recording the sound of a person’s voice is not a violation of that person’s right to privacy so long as the forum in which they use that voice is not intended to be private.
This “reasonable attempt” approach can be applied to analysis of handwriting samples where an employer asks an applicant to fill out an application in their own handwriting. There is no expectation of privacy from the applicant because the applicant believes that the application will be read by several people. Therefore, the actual physical appearance of the handwriting is not protected. However, depending on the method in which the handwriting is transmitted, the content therein may be protected by privacy and may potentially expose the analyst and the employer to liability under certain circumstances. The law for the appearance of handwriting is the same as for photographs and voice. There may be expectation of privacy in personal notes.
But what about privacy regarding character traits?
The most likely cause of action which a job applicant may bring against an employer using a graphologist’s services is defamation. This scenario usually occurs under the following circumstances: an employer requests an applicant to fill out a job application in their own handwriting. That handwritten application is forwarded to the graphologist for an analysis. The graphologist returns the analysis to the employer by means of regular mail or fax. The employer’s office receives the analysis from the graphologist and the analysis goes through the mail room, the secretary, the manager, the vice president, and then the Human Resources person. Each of these people, curious about the analysis of the applicant, reads the analysis. If there are any disparaging remarks at all from the analysis about the applicant, the applicant now has cause of action for defamation against the employer and the graphologist. True, the analyst has a qualified privilege which attaches when doing work for the employer, but the analyst must have taken steps to protect the report from being available to recipients for whom it was not intended ( i.e., marking the report “confidential” or asking the proper recipient to wait by the fax machine until transmission is complete.
What constitutes defamation?
Defamation is the dissemination to a significant and important audience of information which is not true or on which there is no reasonable grounds for which the person making the representation could believe them to be true. There are three defamation causes of action:
1. Intrusion on seclusion – asking a question that calls for a response which may be inappropriate. For example, “please state exactly how it is that you like to kill people.”
2. False light – Casting someone in a false light as a result of your report. For example, “This person lies, cheats and steals,” when you have no such factual knowledge.
3. Interference with prospective business relations – If you recommend against an applicant being hired, you may have interfered (it is not the analyst’s job to make such recommendations, but to provide an objective report and allow the employer to make the hiring decision).
The affirmative defense to defamation is truth of the statement. The job applicant could then claim that the graphologist and the employer cast the applicant in a “false light,” and would most likely succeed on their claim. Interestingly, in some fields, such as psychology, the practitioner has a ‘duty to warn’ when he or she is aware of potential for danger. For example, a counseling client tells his therapist that he plans to kill himself or someone else. If the counselor believes a genuine threat exists, he is bound by law to report the client to law enforcement authorities. By logical extension, if a graphologist finds a handwriting sample gives cause for belief that potential for danger exists, he is ethically bound (though not law-bound) to report his findings to the client. Numerous studies on graphology are published in scientific journals, some of which may be used to back up the graphologist’s claims.
Important information for employment clients
It is recommended that the handwriting analysis report not be the sole determining factor in making a hiring decision. It should be used in conjunction with other hiring tools, such as the interview, resume, skill tests, reference and background checks.
Just as one’s personality may change over time, so can handwriting. According to the writer’s reaction to various external factors, such as physical or emotional trauma, like a death in the family, divorce, health problems, or a job change, their handwriting may undergo some alteration. Some medications, as well as alcohol and “recreational” drugs, may also have either a temporary or a lasting effect on the handwriting and potentially affect the handwriting analysis results somewhat.
Because such an enormous range of variation exists in the human person, no method of personality assessment is perfect. However, an accuracy level of at least 90% is guaranteed on all essential points in the handwriting analysis. This guarantee is based upon an examination of original samples of at least one page in length. When an inadequate sample, photocopy or fax copy is supplied, the handwriting analyst’s findings are qualified and subject to verification by examination of the original.