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ACLU Briefing Paper Number 12
When the United States became a nation more than 200 years ago, the
Founders formulated a Constitution that structured the new society as
a majoritarian democracy. They later added a Bill of Rights to
protect individuals from the tyranny of the majority. But in the 18th
century, when the Constitution and Bill of Rights were ratified, the
government was viewed as the only major threat to individual rights.
The Founders could not have imagined back then that, one day,
concentrations of corporate power would exist on a scale rivalling,
and in some cases exceeding, governmental power.
Today, most Americans are more vulnerable to having their rights
violated by their employers than the early Americans were to having
their rights violated by the government. Yet because the Constitution
does not limit their authority, private employers are free to violate
the civil liberties of their employees. Nationwide, the American
Civil Liberties Union receives more complaints about abuses by
employers than about abuses by the government:
* In California, a job applicant was denied a job because he refused
to answer questions about his sex life on a "psychological test." At
least million job applicants are required to take such tests every
* In Pennsylvania, an employee was fired because he pointed out
serious safety defects in his employer's products At least 200,000
Americans are unjustly fired every year.
* In Indiana, an employee was fired because she smoked cigarettes in
her own home. At least 6,000 American companies now attempt to
regulate off-duty smoking and other private behavior.
The ACLU believes that such abuses can only be prevented by
extending, into the private workplace, the protections guaranteed in
the Bill of Rights. Certainly, we recognize that employers have every
right to expect workers to do their jobs. But employees are also
entitled to the same freedoms on the job that they enjoy off the job.
Here are the ACLU's answers to some questions frequently asked by the
public about the rights of American employees.
If the Constitution doesn't apply to the private workplace, what
The vast majority of American employees, of whom there are 100
million in all, are governed by a doctrine called "employment at
will." This doctrine, a relic of 19th century anti-labor laws, gives
employers the unfettered right to fire workers at any time, for any
reason, whether grave or frivolous. Indeed, one can be fired for no
reason at all. An estimated 200,000 employees at least, are unjustly
fired in the United States each year.
It is the prevalence of the employment-at-will doctrine that empowers
employers to impose unwarranted urine tests and intrusive
"personality" and "integrity" tests on their employees. The power to
fire at will permits employers to suppress their employees right to
Are there any laws that protect employees' rights?
There are federal and state laws that prohibit discrimination against
individuals on the bases of race, religion, sex, national origin, age
and disability. However, these laws require only that employees be
treated equally. Employers are, therefore, free to do whatever they
wish to their employees as long as they do so in a non-discriminatory
A few other federal and state laws provide some protection against
specific abuses, such as urine testing, polygraph testing and
retaliation against whistle blowers. But these laws are extremely
limited. The fundamental human rights of free expression, privacy and
due process are still largely unprotected in the American workplace.
Does the employment-at-will doctrine apply to all employees?
No. There are three broad categories of employees who are not
governed by employment at-will:
Government employees: Federal, state and local government workers are
protected by the Fifth and Fourteenth Amendments, which prohibit the
government from depriving any person of "life, liberty or property"
without due process of law. These employees are considered to have a
property interest in their jobs, and the right to due process places
significant restrictions on arbitrary dismissals unrelated to job
performance. Some additional protection is provided by federal,
state and local civil service laws.
Union members: Virtually all collective bargaining agreements between
labor unions and employers stipulate that unionized employees can be
fired only for just cause, and only after a hearing before a neutral
arbitrator. However, less than 20 percent of American workers belong
to unions today, since union membership has been declining for years.
Contract employees: Senior executives, performers, athletes and some
other well-situated employees, whose numbers are so small as to be
insignificant, work under individual employment contracts that
provide protection against unjust dismissal.
What can be done about the problem of unjust dismissals?
The ACLU believes that the outmoded and unfair employment-at-will
doctrine should be abolished. Over the years, the many attempts made
to challenge employment at-will in the courts have produced a few
narrow exceptions to the rule, but these exceptions have helped very
few of the people unjustly fired from their jobs. The ACLU and other
organizations advocating employee rights are actively promoting in
state legislatures, model statutes that encompass the following basic
* Employees can be fired only for just cause.
* "Just cause" means that: the employee's offense adversely affected
his or her job performance; the rule or standard violated by the
employee was known to the employee; and the infraction was serious
enough to warrant termination.
* Every employee faced with termination is entitled to a hearing that
includes the right to confront witnesses, the right to present
evidence, the right to have adequate representation (either an
attorney or other type of counsel), and the right to an impartial
Can employers legally search their employees' lockers, desks and
urine looking for contraband?
The Fourth Amendment, which protects the privacy of citizens from
"unreasonable searches and seizures," gives some protection to public
sector employees against their employers' prying eyes. In general, a
government employer cannot search the person or belongings of an
employee in the absence of any suspicion that the particular employee
has done something illegal. With respect to urine testing for drugs,
however, the U.S. Supreme Court has ruled that government employees
can be required to take such tests, even if the employer does not
suspect drug use, if the person's job is "safety sensitive," or
involves carrying weapons or having access to classified information.
Private sector employees, on the other hand, have virtually no
protection against even the most intrusive practices. In all but a
handful of states, an employee can be required to submit to a urine
test even where nothing about the employee's job performance or
history suggests illegal drug use. If the employee refuses, he or
she can be terminated without legal recourse. Employees can be
subjected to "sniff" searches by dogs and searches of their lockers
desks, purses, and even their cars if they park in the company
parking lot. Both job applicants and employees can be required to
answer extremely intrusive questions about their private lives and
personal beliefs on "psychological," "personality" and "integrity"
The advent of computer technology has made possible even more
sophisticated forms of spying in the workplace. More and more
employees are being subjected to electronic surveillance through
video display terminals, observation by hidden cameras installed in
work areas and locker rooms, and monitored telephone calls. With few
exceptions, these increasingly widespread practices are legal.
What can be done to protect the privacy rights of employees?
The ACLU believes that both state and federal legislation should be
enacted to extend privacy rights to private sector employees
In recent years, some positive strides have been made. In 1988,
Congress passed the Employee Polygraph Protection Act, which ended
decades of "lie detector" abuse in the private workplace. The Act
outlaws most random and pre-employment polygraph testing, which in
past years had led to an estimated 300,000 workers per year being
Several states--Connecticut, Iowa, Maine, Minnesota, Montana, Rhode
Island and Vermont--have enacted legislation that protects employees
from indiscriminate urine testing. Two states -- Massachusetts and
Rhode Island--restrict paper and pencil "honesty" tests. Connecticut
is the only state that has a law prohibiting "electronic
surveillance, including video surveillance, of any area designed for
the health and comfort of employees or for safeguarding of their
The ACLU has developed model statutes to protect employees from
unfair urine testing and electronic surveillance and is actively
lobbying for their passage in state legislatures throughout the
country. The ACLU is also urging Congress to amend the Employee
Polygraph Protection Act to cover so-called paper and pencil
Can employers discriminate on the basis of employees' lifestyles?
One of the emerging issues in the American workplace is the attempt
by employers to control certain private habits and proclivities of
their employees that have no relationship to job performance. Fat
people are victims of lifestyle discrimination and a growing number
of companies are refusing to hire smokers--even those who smoke only
in their homes. A few employers exclude people with high cholesterol
levels, or high blood pressure, and those who engage in such risky
hobbies as scuba diving and hang gliding. Others impose lifestyle
restrictions: One Oregon company bars workers who fail to participate
in the company's exercise program from attending company picnics; a
Pennsylvania company prohibits its managers from riding motorcycles!
The driving force behind this trend is economics. Employers concerned
about the escalating costs of employee health insurance are
attempting to cut costs by firing and/or refusing to hire people
whose lifestyles appear to place them at risk of illness or injury.
But if reducing health care costs is accepted as a legitimate reason
for employers to regulate the off-the job conduct of their employees,
then virtually every aspect of our private lives could be subject to
employer control. This would be Big Brotherism at its worst.
What can be done to prevent lifestyle discrimination?
The ACLU believes that, just as legislation has been needed to
prevent other violations of civil liberties in the workplace,
legislation is also necessary to prevent lifestyle discrimination.
Just as federal, state and local laws exist to prohibit employment
discrimination based on race, gender, ethnicity, religion and, in
some places, sexual orientation, new laws are needed to protect
against discriminatory practices based on employees private lifestyle
preferences and habits.
At this writing, 15 states have enacted laws that restrain employers
from prohibiting legal activities as a condition of employment. For
example, Colorado law makes it "a discriminatory or unfair employment
practice for an employer to terminate the employment of any employee
due to that employee's engaging in any lawful activity off the
premises of the employer during nonworking hours...." Other states
are considering bills that prohibit employment discrimination based
on off-duty smoking. The ACLU supports these efforts.
Should employers ever have the right to discipline their employees?
Absolutely. Employers have the right to expect an honest day's work
for a day's pay. They have the right to expect that their workers
will not be drunk, drugged, or too fatigued to perform their jobs.
They have the right to set performance standards, and to expect those
standards to be met. They also have the right to discipline and
dismiss employees for just cause. Even if all the protective laws
described in this briefing paper were passed in every state,
employers would still retain the right to discipline and dismiss any
employee whose job performance was lacking.
But wouldn't recognition of liberties in the workplace damage the
There is no conflict between free enterprise and civil liberties in
the workplace. Free enterprise should not be taken to mean that
every corporation is a sovereign republic unto itself, whose only law
is the whim of the current CEO. Employers must be free to decide
what products to make (or stop making), what factories to operate and
where to locate those factories, what prices to charge, and how many
workers to hire. But they can make such decisions without trampling
on their employees' rights to free speech, privacy and due process.
The fact is that employers in most other Western industrialized
nations, as well as in Japan, are required by law to respect the
rights of their employees. Nonetheless, those employers' businesses
survive and prosper. Moreover, several American employers including
some of the nation's most successful corporations, already guarantee
their employees' civil liberties without affecting the bottom line of
profits. Those employers believe that respecting employees rights
boosts morale and, thus, raises corporate performance.
It is ironic that the United States, with its long professed respect
for individual rights, has not yet extended Bill of Rights
protections to the largest remaining group of forgotten citizens --
American workers. It is time to right that wrong.
from The American Civil Liberties Union
132 West 43rd Street
New York, N.Y. 10036
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