Drug Testing and the Right to Privacy.

Great Debates
1

While I am not a constitutional scholar, many people seem to imply that *Roe v. Wade * and similar court cases outline a “Right to Privacy”. This Right to Privacy seems to suggests that individuals are immune to undue intrusion by the government, employers and other individuals.

When a body ingests a drug, that particular compound is enzymatically changed and excreted as urine, sweat, and feces. For example, THC, a psychoactive compound in marijuana, is transformed into carboxy-THC and excreted. Your body does this to many other compounds like chocolate (procyanidin) and even caffeine (paraxanthine). Drug tests can be devised to check for these metabolites as well.

Many companies have a “zero-tolerance” policy on drugs and employ the use of immunoassays to measure metabolites in the urine, hair and even saliva of their employees. If someone came to work strung out on cocaine, these employers would have an apt reason to terminate that person’s employment; however, if that individual does it in the privacy in their own home, never comes to work under the influence of drugs, would termination be justified?

I am curious what you guys think of drug testing and whether it is constiutional. It seems to me that drug tests is something that Marx would expect in a Capitalist government: the Capitalists keeping the workers in check by telling them what not to do in the privacy of their own homes and using punitive sanctions like lay-offs and job termination to enforce it.

I guess all of this rambling can be put into three questions:

(i) Why is drug testing legal and has it ever been challenged in the court of law?

(ii) Do CEOs of certain companies, congressmen and women, Justices of the Supreme Court, or even the President of the United States have take sudden, periodic drug tests? Or are drug tests sort of delegated to the underdogs or workers?

(iii) Does Drug testing violate the constitutional right to privacy?

Thanks for reading!

  • Honesty

TO the moderators: I started to put this into General Questions but figure it might be better here. Change if it you’d like. :slight_smile:

2

I think the implicit assumption is that drugs hamper your productivity even if you are not under its acute influence.

3

I don’t believe that’s true at all. Otherwise, alcohol use would be forbidden as well.

Most companies started drug testing on people as a means to ensure safety of employees and others while operating dangerous equipment or transportation vehicles. The reason most companies do it now (or so I’ve heard) is because of insurance issues and to protect their reputation. There’s no fucking way I’m a danger to anyone while doing my non-technical computer job at home. But I still had to take a drug test (and I resent the hell out of it).

I think it’s pretty much unchallengeable, because companies can hire and fire based on whatever wild hair they get up their butt.

I have a friend who works at Blockbuster SOLELY because they don’t drug test and she’s an avid pot smoker. It would take her months to get it out of her system completely, and that is too long a period of time for her to give it up.

4

I’m not talking about the reality. Just the assumption engendered by the political and social climate.

5

Well, although it’s still acceptable, alcohol use has become less acceptable, both politically and socially. Drunk driving laws are much more strict than they were 30, 20, even 10 years ago. Most businesses frown on alcohol use during daily wheeling and dealing (and even at Christmas parties). Fraternities’ use of alcohol is monitored more closely by universities, parents are now being held responsible for underage drinking in their homes…it’s definitely a hot-button issue – yet not forbidden by most companies.

Certainly this is due to the legal/illegal difference between alcohol and drugs, but some companies even forbid smoking during off-hours. You can bet sooner or later, someone is going to try to do the same thing with booze.

6

Yes, it is. Submitting to drug testing in order to qualify for a job is completely voluntary. You don’t have to take a drug test if you don’t want to, and they don’t have to hire you if you say no. Or to put it another way, the police can’t force you to produce ID when you’re walking down the street, but it’s entirely reasonable for an employer to ask for ID when you apply for a job, and no one considers it an infringement on civil liberties.

It depends on the company. I’m sure in some cases there is genuine company-wide drug test, but it’s probably usually reserved for non-management personnel. As for congressmen, judges, and the President, only if Congress (or the appropriate legslative body for judges) makes a law requiring drug testing for said positions, which I don’t believe they have. Most federal employees do have to take drug tests, though.

No, because as I said before, it’s completely consensual. You can refuse to take a drug test, although you may be fired for doing so. Employment is not a constitutionally protected right. It would be unconstitutional to prosecute someone based on the results of a pre-employment drug screening, but that isn’t done (IANAL).
Drug testing by employers is completely legal. It’s also fairly expensive and ineffective (cite ). Employers can test for drugs, but I wouldn’t say they’re intelligent for doing so.

7

I do not know the answers to the questions explicitly stated, but I’d like throw in my 2 cents.

IMHO, the only people who should be drug tested are those who if they come to work drunk or high, then people might die. Airline pilots, bus drivers, etc.

For pretty much everybody else, I do not see why it matters. If they cannot do their job well enough, whether it’s because of drugs or incompetence or laziness, I’m not sure why it matters. If they cannot do the job, then let them go. I don’t care if it’s because they’re a raging coke fiend, or simply because they’re stupid, and I fail to understand why it matters to anybody else.

If they are doing their job fine, even though they toke up occasionally, what is gained by weeding (heh) these people out of the work force? Anything practical, or just some kind of anti-drug warm fuzzy?

8

First, the Constitution generally only protects you from Government actions. It doesn’t prohibit private individuals, like people or corporations, from taking actions that it prohibits the government from doing.

Second, many people have challenged the use of drug testing but usually based on the Fifth Amendment (“No person … shall be compelled in any criminal case to be a witness against himself”). People have argued that being required to submit bodily fluids is a form of self-incrimination. But the courts have generally held that that protection only applies to testimony not physical evidence.

9

I agree. It’s another right-wing plot as far as I’m concerned. I suppose they could say they’re protecting their investment, but unless drug use affects your performance (and contrary to popular belief, it often times doesn’t), it really has no bearing on anything.

10

This would be true of many factory jobs. A bad enough mistake at my workplace could get someone killed, especially if it involved the tow motor.

My company did not want to institute drug testing. The BWC forced the issue by raising rates and offering tens of thousands of dollars to companies that institute drug testing. Everyone in the company is subject, including the president. We also wanted to exclude certain drugs but the drugs on the list are mandated by the BWC.

It sucks that marijuana shows up the longest in the system but is the most benign of the drugs tested for.

11

I am not being dense here but if this is true, why do we have discrimination laws that seem to protect the “right” to be employed in certain circumstances? Isn’t it a form of discrimination to deny a candidate a position based on, relatively speaking, benign activities outside of the workplace?

  • Honesty
12

From a legal standpoint, the answer is no. There is no general prohibition against discrimination. Discrimination is only illegal in some specific cases such as if a person is being discriminated against because of race or religion. But there is no law protecting people who use drugs so employers can set whatever policies they want on them, including firing drug users. And I don’t think you’re ever going to see this change - why would any legislature give legal protection to people who are breaking a law?

13

To expand on Nemo’s correct answer, you’re confusing contsitutional and legal. The right to privacy (to the extent it exists) protects private citizens from government action. It does not protect anyone from the actions of private companies, which are private entities just like you and me.

Now, separate and apart from an action’s constitutionality, there is the question of its legality. If I bust into your house, bash you on the head with a hammer, and eat all your potato chips, I haven’t done anything that’s unconstitutional. That’s because as I’m a private citizen, the constitution doesn’t generally constrain my actions. (OTOH, for instance, if a police officer were to do the same thing while pretending to be enforcing the law, he would be violating the Constitution, because as an arm of the government, he’s constrained by constitutional limits.)

Even though my actions didn’t have an constitutional defect, they’re still illegal. The federal and state governments can chose to prohibit certain things, and busting into some dude’s house and hitting him with a hammer is one of the things that every state prohibits. Similarly, firing someone because he’s black is something that the federal government has prohibited – it’s illegal. But it’s not unconstitutional, it’s just illegal.

That’s why your analogy doesn’t hold water. Employment is not a constitutionally protected right. In general, the Constitution only limits what governments can do. However, the federal government (and some state governments) have passed laws that limit the way private actors can behave in certain employment contexts. So even though there is no constitutional right to a job, there is a legal right not to be fired because of your race. A legal right, not a constitutional one.

I hope this helps. BTW, if you happen to bump into your 8th grade History or Civics teacher somewhere, smack him on the back of the head.

–Cliffy