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Workplace tests given to applicants or employees can be divided into two general types: (1) Tests with results that measure ability or performance on a continuous, comparative scale and (2) tests with essentially dichotomous results indicating the truth or falsity of some fact about the worker. Aptitude tests or quantified supervisorial ratings fall into the first category. They have been the subject of substantial litigation brought primarily under Title VII of the Civil Rights Act of 1964. In contrast, the second category of workplace tests has received comparatively little judicial attention. This group includes drug tests, other medical tests such as those for the AIDS antibody, and truth-detection testing. This second category of workplace testing has engendered social controversy and litigation concerning invasions of privacy and constitutional or common law protections against unreasonable intrusions or searches. A separate issue has not yet received sufficient attention: The problem of injury to reputation through the predictable number of false results on such tests.

The empirical inquiry into the number of individuals who suffer reputational injury from false reports, and the political issue of whether to legislate controls on purity/taint testing, are not the direct subjects of this article. The focus here is on the problem that some inevitable number of individuals will receive incorrect results on such tests. The question is whether a reputational injury from a false positive test result is defamatory and whether it should be compensable at common law. No reported case has squarely addressed this issue, but courts will probably confront the problem as soon as employers increase the use of drug tests. The goal of this article is to assist in the resolution of such cases when they appear.

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1988 U. Chi. Legal F. 181.