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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.
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If the constitution can't help them, how can private employees protect
themselves against drug testing?
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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.
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          The Fourth Amendment says that the government cannot search
          everyone to find the few who might be guilty of an offense.
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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
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