Your Rights

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 bodily fluids.

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 dictatorship.
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 illegal substances.