|The 5th Amendment guarantees
that you cannot be forced to be a witness against yourself.
This grew out of our American founding fathers' revulsion for
kings and totalitarian rulers torturing confessions and self
incriminating testimony from those accused of crimes. Random
and mass drug testing assumes you are guilty until you have
proven your innocence by peeing in a little cup. If you smoke
a joint at a party on Saturday night, and while perfectly clear
headed are forced to take a mandatory urine test on a Wednesday
afternoon, you are clearly being forced to incriminate yourself
without probable cause.
To date the results in Federal Court are mixed
due to so many Reagan appointees. But in 13 Federal cases judges
have ruled in favor of employees constitutional rights of privacy
and against self incrimination. Eleven individuals recently won a
case against the Philadelphia Post Office. Although they fulfilled
all other requirements for the position applied for, they failed
their urinalysis test. They were awarded $55,000 in damages, and
the Post Office was forbidden to use urine tests in the future. It's
interesting that even White House staff members have been resisting
the intrusion of drug tests. Recently Congress defeated a provision
to test its members.
Ultimately drug testing of Government employees
will not stop until a favorable ruling is made by the U.S. Supreme
Court. On December 16. 1991 the Court refused to hear Willner v.
Barr which challenged the constitutionality of random drug tests.
Recent challenges under State constitutions have been more successful.
The Boston Police Department won a 4-3 decision against random testing
. The New York Transit Authority agreed to pay 5.6 million dollars
to employees illegally required to take drug tests. In Louisiana,
a drug testing lab was found negligent by the State Appeals court.
David B. Elliot who had tested positive for marijuana was awarded
$25.000 due to faulty testing procedures.
No definitive case has been decided yet. But in
Skinner vs. Railway Labor Executive Association the Court stated: "There
are few activities in our society more personal or private than the
passing of urine. Most people describe it by euphemisms if they talk
about it at all. It is a function traditionally performed without
public observation; indeed, its performance in public is generally
prohibited by law as well as social custom."
When dealing with governmental employers, your
rights are guaranteed by the 4th and 5th Amendments to the Constitution.
The 4th Amendment guarantees you, the people's right to be secure
in their "persons, houses, papers, and effects against unreasonable
searches and seizures." Whether a bodily fluid like your urine is "your
person" or "an effect", one thing is clear, as a search warrant is
needed before a policeman can search your house, "probable cause" should
be needed to force you to give up your right to the privacy of your
Remember, there are no federal or state laws governing
your urine. If you substitute, dilute or adulterate your urine sample
it is a matter between you and your employer. The Constitutional
protections were founded on eminent good sense. These American guarantees
of individual rights are what protect us as a free people from political
|A drunk or stoned worker , particularly
in a job which involves a clear hazard to the public, is clearly
not desirable. But Urine tests don't measure your ability for
job performance. Someone might have consumed pot at a party
on the weekend and be fully functional at work two weeks later
- yet they would fail. The answer is to give job performance
tests. For instance pilots before they board the aircraft would
have to play a video simulation game corresponding to the coordination
and depth perception required of a pilot.
Such a test has been perfected and is in use in
California. Developed by Performance Factors of Alameda, California,
this simple video game is in use at the Old Town Trolley system in
San Diego. Each day drivers spend thirty seconds on a video screen
calibrated to their individual skill level. When drivers fail, they
are merely assigned to another job. Many accidents occur from the
stresses of divorce, deaths in the family, news of serious health
problems, or other personal tragedies. If a company is interested
in safety rather than being a policeman investigator into people's
private lives - the Performance Factors machine is an answer when
public safety is at risk.
The way to deal with the alcohol or drug abuser in
a non safety related job, is on an individual basis. Supervisors
need to be trained to spot problems and help employees into counseling
programs. In America, you do not, Big Brother style, deprive everyone
of their 4th amendment right to privacy because a few people abuse