From: kadie@cs.uiuc.edu (Carl M. Kadie)
Subject: [ACLU] Drug Testing in the Workplace
Organization: University of Illinois, Dept. of Comp. Sci., Urbana, IL
Date: Mon, 23 Nov 1992 06:33:33 GMT

[Lots of info about on-line access to other ACLU papers at the end -cmk]

Published by the Department of Public Education
American Civil Liberties Union
132 West 43rd Street.
New York, NY 10036
(212) 944-9800

ACLU Briefing Paper Number 5
Drug Testing in the Workplace

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 the workplace.


---
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 testing?
---

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
their investment?
---

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 treatment.


---
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.

The ACLU will continue to press other states to pass similar statutes,
and to lobby the U.S. Congress to do the same.

The American Civil Liberties Union
132 West 43rd Street
New York, N.Y. 10036

==========================

=================
README
=================
* Civil Liberty Archive
  [part of the Computers and Academic Freedom (CAF) Archive
     [part of the Electronic Frontier Foundation (EFF) Archive]]

This is an on-line collection of civil liberty statements. It includes
Briefing Papers from the American Civil Liberties Union. (The ACLU
material is made available by permission of the American Civil
Liberties Union)

If you have gopher, the archive is browsable with the command:
  gopher -p academic/civil-liberty gopher.eff.org

The archive is also accessible via anonymous ftp and email. Ftp to
ftp.eff.org (192.88.144.4). It is in directory
"pub/academic/civil-liberty".  For email access, send email to
archive-server@eff.org. Include the line:

send acad-freedom/civil-liberty <filenames>

where <filenames> is a list of the files that you want. File README is
a detailed description of the items in the directory.

For more information, to make contributions, or to report typos
contact J.S. Greenfield (greeny@eff.org).

=================
README.subject-index
=================
* Subject Index for Civil Liberty Archive

=================
aclu.aclu
=================
* Guardian of Liberty: American Civil Liberties Union -- ACLU Briefing Paper #1

Contents:
The ACLU Mandate
What rights are guaranteed in the Bill of Rights?
A Brief History
How the ACLU Chooses Its Cases
How the ACLU Works
The Financial Picture

=================
aclu.history
=================
* A History of the ACLU -- Ira Glasser Speech

A transcript of a speech by Ira Glasser (ACLU national director, at the time),
before the National Press Club, Washington, DC. on October 6, 1988.  The speech
details the history of the ACLU and its work.


=================
aids.aclu
=================
* AIDS and Civil-Liberties -- ACLU Briefing Paper #13

Answers these questions:

What is "HIV" and what is "AIDS"?
What are the facts about how HIV spreads?
Can HIV disease be cured?
Doesn't HIV mainly afflict gay men and drug addicts?
To stop the spread of HIV, shouldn't the government require all citizens
      to be tested?
But why shouldn't the government provide lists of people who test positive
      for HIV?
Does the law protect the rights of people with HIV disease?
How do these anti-discrimination laws work?
But shouldn't employers be able to fire people with HIV disease?
Don't HIV-infected health care workers pose enough of a risk to their
      patients to be prohibited from working?
Shouldn't school children with HIV disease be kept home?
Have the courts enforced these principles in cases involving
discrimination against people with HIV disease?
Wouldn't the distribution of clean needles and condoms promote drug use
      and promiscuity?
Should laws be enacted to punish those who deliberately try to spread HIV
      disease?
Should suspected or convicted rapists be forced to take HIV tests?
Shouldn't the government censor education about HIV on the ground that
    it's obscene?


=================
artistic-freedom.aclu
=================
* Artistic Freedom -- ACLU Briefing Paper #14

Answers these questions:

What protects the work of artists from government censorship?
When and how did the threat to artistic freedom emerge in this country?
How has the Supreme Court dealt with sexually explicit expression?
Why does the ACLU object to the obscenity exception to the First Amendment?
But don't obscene and pornographic works cause anti-social and even
       violent behavior?
Even if the government can't suppress art, surely it shouldn't use
       tax monies to fund art that offends!?
Why does the ACLU object to movie ratings, music labeling, or other
voluntary rating systems?  Don't they give guidance to consumers,
       especially parents?
But mustn't we protect our children from inappropriate messages and
       images, especially graphic sex and violence?
Defending artists is fine, but why does the ACLU spend time and money
       defending pornographers and sleaze merchants?


=================
bill-of-rights.history.aclu
=================
* A History of the Bill of Rights -- ACLU Briefing Paper #9

Contents:

The Origins Of Liberty
The Constitutional Convention
Ratification Of The Constitution
The First Congress
Ratification Of The Bill Of Rights
Rights Declared, But Justice Denied
The Fourth Branch

=================
campaign-92.aclu
=================
* Campaign for the Bill of Rights '92 -- ACLU

The American Civil Liberties Union's planks for its "Campaign for the
Bill of Rights '92". The planks are 1) a national campaign against
bigotry and racism, 2) constitutional protection for a woman's right
to choose, 3) a realistic approach to crime and punishment, 4) a Bill
of Rights for all working people.

=================
censorship.survey
=================
* Censorship of Books at Public Schools -- Survey Results

This article summarizes the findings of the tenth annual survey on book
censorship in public schools, conducted by the People for the American
Way.  The survey found the number of challenges (and successful challenges)
of books to be at a ten-year high.


=================
church-and-state.aclu
=================
* Church and State -- ACLU Briefing Paper #3

Answers these questions:

Were people free to practice their religious beliefs in colonial times?
Does the phrase "separation of church and state" actually appear in
      the constitution?
Our nation was founded by religious individuals, and some
      manifestations of the religious aspects of our history and culture are
      inevitable. So what does separation mean exactly?
Is prayer in public schools constitutional if it is optional?
Can children pray in school at all?
Why can't schools be required by law to teach the biblical theory of
      the earth's origins-- "creationism"--in addition to teaching evolution?
If students can meet on school grounds in extra-curricular political
      or social groups, can't they also meet in religious groups?
Since religious day schools are educating the children of taxpayers,
      can't the government assist those schools?
Religious facilities sometimes house services like daycare and foster
      care for the general public. Is it constitutional for those programs
      to receive government funds?
Why does the ACLU oppose religious displays on public property during
      the Christmas season?
If the government cannot be involved with religion, does that mean the
      clergy cannot speak out on political issues?
Should the Catholic Church lose its tax exempt status because its
      officials are involved in lobbying against abortion and birth control?
Are members of religious "cults" also protected by the Establishment Clause?
Can individuals whose religious beliefs conflict with certain laws
      receive special consideration from government?

=================
crime.aclu
=================
* Crime and Civil Liberties -- ACLU Briefing Paper #2

Answers these questions:

Why should criminals enjoy special rights at the expense of the rest of us?
Aren't constitutional technicalities like the Miranda warnings and the
       exclusionary rule responsible for letting violent criminals go free?
Shouldn't criminal defendants be locked up before trial so they won't
       commit more crimes while free on bail?
Instead of being soft on criminals, shouldn't judges impose stiffer
       sentences so that people will think twice before committing a crime?
If the sentence is death, even a hardened criminal might not want to
       take chances--so shouldn't we execute more people to deter would-be
       murderers?
What about the victims of crime -- don't they have rights too?
What can be done about crime that doesn't violate our constitutional rights?

=================
drug-testing.workplace.aclu
=================
* Drug Testing in the Workplace -- ACLU Briefing Paper #5

Answers these questions:

Don't employers have the right to expect their employees not to be
      high on drugs on the job?
Can urine tests determine precisely when a particular drug was used?
If you don't use drugs, you have nothing to hide--so why object to testing?
Are drug tests reliable?
Still, isn't universal testing the best way to catch drug users?
But shouldn't exceptions be made for certain workers, such as airline
      pilots, who are responsible for the lives of others?
Drug use costs industry millions in lost worker productivity each
      year. Don't employers have a right to test as a way of protecting
      their investment?
Have any courts ruled that mandatory urine testing of government
      employees is a violation of the constitution?
If the constitution can't help them, how can private employees protect
      themselves against drug testing?

=================
english-only.aclu
=================
* "English Only" -- ACLU Briefing Paper #6

Answers these questions:

What is an "English Only" law?
Where have such laws been enacted?
What are the consequences of "English Only" laws?
Do "English Only" laws affect only government services and programs?
Who is affected by "English Only" laws?
How do "English Only" laws deprive people of their rights?
What kinds of language policies were adopted with regard to past
    generations of immigrants?
Why are bilingual ballots needed since citizenship is required to
    vote, English literacy is required for citizenship, and political
    campaigns are largely conducted in English?
Doesn't bilingual education slow immigrant children's learning of
    English, in contrast to the "sink or swim" method used in the past?
But won't "English Only" laws speed up the assimilation of today's
    immigrants into our society and prevent their isolation?

=================
faq.pointer
=================
* Pointer to Civil Liberties FAQ

An article by Jyrki Kuoppala with an outline of an FAQ (Frequently
Asked Questions w/ Answers) for civil liberities. Includes information
about a civil liberties gopher.

=================
freedom-of-expression.aclu
=================
* Freedom of Expression -- ACLU Briefing Paper #10

Answers these questions:

What were the philosophical underpinnings of the First Amendment's guarantees?
Why does freedom of expression play such a critical role in our
     constitutional system?
What was the early history of the First Amendment and freedom of expression?
How did the courts respond to First Amendment violations?
What forms of expression are protected by the First Amendment?
Can speech be curtailed if it is thought to jeopardize national security?
Why should racists and other hatemongers, or those espousing
     anti-democratic political doctrines, have free speech rights?
Can free speech be limited in any way?
Are any forms of expression not protected by the First Amendment?
Is freedom of expression in danger today?

=================
freedom.essay
=================
* Essay on the Freedoms Protected by the Bill of Rights

An essay by Richard Criley of the Bill of Rights Foundation, examining the
security of freedom in the United States.  The essay discusses systematic
abuses of freedom that occurred during the last half-century.


=================
human-rights.un
=================
* Universal Declaration of Human Rights -- United Nations

The full text of the Universal Declaration of Human Rights, adopted by
the General Assembly of the United Nations on December 10, 1948.

=================
lie-detectors.aclu
=================
* Lie Detector Testing -- ACLU Briefing Paper #4

Answers these questions:

What does the Employee Polygraph Protection Act do?
Are there and exceptions to the ban on "lie detectors"?
Does the EPPA protect those employees who are tested from the worst
     abuses and misuses of the "lie detector" test?
Who has access to "lie detector" test results?
What effect does the EPPA have on existing state and local laws?
How can I assert my rights under the EPPA?
Since the EPPA does not cover government employees, what protection
     do they have from "lie detector" abuse?
In the wake of the EPPA, are employers devising other methods for
     detecting employee dishonesty?
If employers cannot use "lie detectors," what can they do to combat
     employee dishonesty and theft?

=================
pledge.history
=================
* A History of the Pledge of Allegiance

An essay examining the origins of the Pledge of Allegiance and the history
of its introduction into public schools, written by John W. Baer of
Propaganda Review.


=================
reproductive-freedom.aclu
=================
* Reproductive Freedom -- ACLU Briefing Paper #15

Answers these questions:

How does the Constitution protect our right to privacy, including
     reproductive freedom, if that right isn't explicitly named in the
     Constitution?
Is reproductive choice protected by constitutional principles other than
     the right to privacy?
Have restrictions on abortion always existed?
Shouldn't the abortion question be left to state legislatures, or voted on
     by the people in referenda?
Do abortion bans also outlaw birth control?  
Why are poor women and women of color especially hurt by anti-choice laws? 
Why shouldn't the government be able to force a woman to carry a
     pregnancy to term for the sake of a fetus? 
Shouldn't pregnant women who drink or use other drugs be prosecuted
     for "child abuse"?
Why do laws that require parental involvement in a minor's abortion
     decision infringe upon fundamental rights?
In what ways have the opponents of choice attacked the right to choose
     abortion and birth control?
What can I do to help protect reproductive choice? 

=================
reproductive-freedom.minors.aclu
=================
* Reproductive Freedom: The Rights of Minors -- ACLU Briefing Paper #7

Answers these questions:

How many states have passed laws that restrict teenagers' access to abortion?
How do these laws work?
What's the difference between a consent and a notification law?
What's wrong with parental notification or consent laws?
Whatever parents' reactions might be, it's _their_ daughter--so don't
     they have the right to be involved?
What types of family situations lead teenagers to seek a confidential abortion?
Can a teenager, suddenly faced with the choice between childbirth and
     abortion, really make a responsible decision?
Don't laws restricting abortion also contain alternatives for mature
     minors or those who fear parental reprisals?
Aren't legal delays justified when a teenager might risk physical and
     emotional harm by having an abortion?
What are the consequences, besides increased health risks, of
     restricting teens' access to abortion?
Do restrictions on minors affect the reproductive choices of other women?
What can be done to provide genuine help for teenagers and, thus,
     reduce their need for abortion?


=================
top.art.censors.1992
=================
* Top Art Censors of 1992

An article reporting the ACLU's list of the "1992 Arts Censors of
the Year."  The list cites governmental officials and private
individuals, including:

  Anne-Imelda Radice (chair of the NEA),
  Oliver North,
  Catharine MacKinnon and Andrea Dworkin,
  and The Rev. Donald Wildmon, head of the American Family Association.


=================
women-against-censorship
=================
* Women Against Censorship -- Excerpts

Edited by Varda Burstyn. Douglas & McIntyre Limited, 1985.

=================
womens-rights.1848
=================
* Declaration of Sentiments from 1st Women's Rights Convention

in the United States, held in Seneca Falls, New York, the nineteenth
and twentieth of July, 1848. Among the famous who signed are Elizabeth
Cady Stanton, whose home in Seneca Falls is now part of the Women's
Rights National Park, and Frederick Douglass.

=================
=================
Last update
Thu Nov 19 16:07:22 EST 1992
-- 
Carl Kadie -- I do not represent any organization; this is just me.
 = kadie@cs.uiuc.edu =
Xref: sparky alt.society.civil-liberty:6689 soc.history:9678 alt.politics.usa.constitution:1186