ACLU Briefing Paper Number 5
There was a time in the United States when your business was also
your boss's business. At the turn of the century, company snooping
was pervasive and privacy almost nonexistent. Your boss had the right
to know who you lived with, what you drank, whether you went to
church, or to what political groups you belonged.
With the growth of the trade union movement and heightened awareness
of the importance of individual rights, American workers came to
insist that life off the job was their private affair not to be
scrutinized by employers. But major chinks have begun to appear in
the wall that has separated life on and off the job, largely due to
the advent of new technologies that make it possible for employers to
monitor their employees' off-duty activities. Today, millions of
American workers every year, in both the public and private sectors
are subjected to urinalysis drug tests as a condition of getting or
keeping a job.
The American Civil Liberties Union opposes indiscriminate urine
testing because the process is both unfair and unnecessary. It is
unfair to force workers who are not even suspected of using drugs,
and whose job performance is satisfactory, to "prove" their innocence
through a degrading and uncertain procedure that violates personal
privacy. Such tests are unnecessary because they cannot detect
impairment and, thus, in no way enhance an employer's ability to
evaluate or predict job performance. Here are the ACLU's answers to
some questions frequently asked by the public about drug testing in
Don't employers have the right to expect their employees not to be
high on drugs on the job?
Of course they do. Employers have the right to expect their employees
not to be high, stoned, drunk, or asleep. Job performance is the
bottom line: If you cannot do the work, employers have a legitimate
reason for firing you. But urine tests do not measure job
performance. Even a confirmed "positive" provides no evidence of
present intoxication or impairment; it merely indicates that a person
may have taken a drug at some time in the past.
Can urine tests determine precisely when a particular drug was used?
No. Urine tests cannot determine when a drug was used. they can only
detect the "metabolites," or inactive leftover traces of previously
ingested substances. For example, an employee who smokes marijuana on
a Saturday night may test positive the following Wednesday, long
after the drug has ceased to have any effect. In that case, what the
employee did on Saturday has nothing to do with his or her fitness to
work on Wednesday. At the same time, a worker can snort cocaine on
the way to work and test negative that same morning. That is because
the cocaine has not yet been metabolized and will, therefore, not
show up in the person's urine.
If you don't use drugs, you have nothing to hide--so why object to
Innocent people do have something to hide: their private life. The
"right to be left alone" is, in the words of the late Supreme Court
Justice Louis Brandeis "the most comprehensive of rights and the
right most valued by civilized men."
It is unfair to force workers who are not even suspected of using
drugs to "prove" their innocence through a degrading and uncertain
procedure that violates personal privacy.
Analysis of a person's urine can disclose many details about that
person's private life other than drug use. It can tell an employer
whether an employee or job applicant is being treated for a heart
condition, depression, epilepsy or diabetes. It can also reveal
whether an employee is pregnant.
Are drug tests reliable?
No. The drug screens used by most companies are not reliable. These
tests yield false positive results at least 10 percent, and possibly
as much as 30 percent, of the time. Experts concede that the tests
are unreliable. At a recent conference, 120 forensic scientists,
including some who worked for manufacturers of drug tests, were
asked, "Is there anybody who would submit urine for drug testing if
his career, reputation, freedom or livelihood depended on it?" Not a
single hand was raised. Although more accurate tests are available,
they are expensive and infrequently used. And even the more accurate
tests can yield inaccurate results due to laboratory error. A survey
by the National Institute of Drug Abuse, a government agency, found
that 20 percent of the labs surveyed mistakenly reported the presence
of illegal drugs in drug-free urine samples. Unreliability also stems
from the tendency of drug screens to confuse similar chemical
compounds. For example, codeine and Vicks Formula 44-M have been
known to produce positive results for heroin, Advil for marijuana,
and Nyquil for amphetamines.
Still, isn't universal testing the best way to catch drug users?
Such testing may be the easiest way to identify drug users, but it is
also by far the most un-American.
Americans have traditionally believed that general searches of
innocent people are unfair. This tradition began in colonial times,
when King George's soldiers searched everyone indiscriminately in
order to uncover those few people who were committing offenses
against the Crown. Early Americans deeply hated these general
searches, which were a leading cause of the Revolution.
After the Revolution, when memories of the experience with
warrantless searches were still fresh, the Fourth Amendment was
adopted. It says that the government cannot search everyone to find
the few who might be guilty of an offense. The government must have
good reason to suspect a particular person before subjecting him or
her to intrusive body searches.
These longstanding principles of fairness should also apply to the
private sector, even though the Fourth Amendment only applies to
government action. Urine tests are body searches, and they are an
unprecedented invasion of privacy. The standard practice, in
administering such tests, is to require employees to urinate in the
presence of a witness to guard against specimen tampering. In the
words of one judge, that is "an experience which even if courteously
supervised can be humiliating and degrading." Noted a federal judge,
as he invalidated a drug-testing program for municipal fire-fighters,
"Drug testing is a form of surveillance, albeit a technological one."
But shouldn't exceptions be made for certain workers, such as airline
pilots, who are responsible for the lives of others?
Obviously, people who are responsible for others' lives should be
held to high standards of job performance. But urine testing will not
help employers do that because it does not detect impairment. If
employers in transportation and other industries are really concerned
about the public's safety, they should abandon imperfect urine
testing and test performance instead. Computer assisted performance
tests already exist and, in fact, have been used by NASA for years on
astronauts and test pilots. These tests can actually measure hand-eye
coordination and response time, do not invade people's privacy, and
can improve safety far better than drug tests can.
Drug use costs industry millions in lost worker productivity each
year. Don't employers have a right to test as a way of protecting
Actually, there are no clear estimates about the economic costs to
industry resulting from drug use by workers. Proponents of drug
testing claim the costs are high, but they have been hard pressed to
translate that claim into real figures. And some who make such claims
are manufacturers of drug tests, who obviously stand to profit from
industry-wide urinalysis. In any event, employers have better ways to
maintain high productivity, as well as to identify and help employees
with drug problems. Competent supervision, professional counseling
and voluntary rehabililtation programs may not be as simple as a drug
test, but they are a better investment in America. Our nation's
experience with cigarette smoking is a good example of what education
and voluntary rehabililtation can accomplish. Since 1965, the
proportion of Americans who smoke cigarettes has gone down from 40.4
percent to 29.1 percent. This dramatic decrease was a consequence of
public education and the availability of treatment on demand.
Unfortunately, instead of adequately funding drug clinics and
educational programs, the government has cut these services so that
substance abusers sometimes have to wait for months before receiving
Have any courts ruled that mandatory urine testing of government
employees is a violation of the Constitution?
Yes. Many state and federal courts have ruled that testing programs
in public workplaces are unconstitutional if they are not based on
some kind of individualized suspicion. Throughout the country, courts
have struck down programs that randomly tested police officers, fire-
fighters, teachers, civilian army employees, prison guards and
employees of many federal agencies. The ACLU and public employee
unions have represented most of these victorious workers. In
Washington, D.C., for example, one federal judge had this to say
about a random drug testing program that would affect thousands of
government employees: "This case presents for judicial consideration
a wholesale deprivation of the most fundamental privacy rights of
thousands upon thousands of loyal, law-abiding citizens...." In
1989, for the first time, the U.S. Supreme Court ruled on the
constitutionality of testing government employees not actually
suspected of drug use. In two cases involving U.S. Customs guards and
railroad workers, the majority of the Court held that urine tests are
searches, but that these particular employees could be tested without
being suspected drug users on the grounds that their Fourth Amendment
right to privacy was outweighed by the government's interest in
maintaining a drug-free workplace. Although these decisions represent
a ruling, it does not affect all government workers, and the fight
over the constitutionality of testing is far from over.
If the Constitution can't help them, how can private employees
protect themselves against drug testing?
Court challenges to drug testing programs in private workplaces are
underway throughout the country. These lawsuits involve state
constitutional and statutory laws rather than federal constitutional
law. Some are based on common law actions that charge specific,
intentional injuries; others are breach of contract claims. Some have
been successful, while others have failed. Traditionally, employers
in the private sector have had extremely broad discretion in
personnel matters. In most states, private sector employees have
virtually no protection against drug testing's intrusion on their
privacy, unless they belong to a union that has negotiated the
prohibition or restriction of workplace testing. One exception to
this bleak picture is California, in which the state constitution
specifies a right to privacy that applies, not only to government
action, but to actions by private business as well.
The Fourth Amendment says that the government cannot search everyone
to find the few who might be guilty of an offense.
In addition to California, seven states have enacted protective
legislation that restricts drug testing in the private workplace and
gives employees some measure of protection from unfair and unreliable
testing: Montana, Iowa, Vermont and Rhode Island have banned all
random or blanket drug testing of employees (that is, testing without
probable cause or reasonable suspicion), and Minnesota, Maine and
Connecticut permit random testing only of employees in "safety
sensitive" positions. The laws in these states also mandate
confirmatory testing, use of certified laboratories, confidentiality
of test results and other procedural protections. While they are not
perfect, these new laws place significant limits on employers'
otherwise unfettered authority to test and give employees the power
to resist unwarranted invasions of privacy.
from The American Civil Liberties Union
132 West 43rd Street
New York, N.Y. 10036
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