Drug Testin In The Workplace Essay Research

Paper

Drug testing in the United States began with the explosive use of illegal drugs, in order to

curb drug abuse. This began during the Vietnam War with drug use at a climax. In

general, Drug testing is a way to detect illegal drug use and deter it, usually by Urinalysis.

Drug testing in the United States violates a citizen?s right to unreasonable search and

seizure?s along with jeopardizing one?s freedom. Drug testing is not only an unreliable

invasion of a person?s privacy but it assumes that one is guilty before submitting to the

test.

Drug testing began to take place in the mid 1960?s when drugs like Marijuana,

hallucinogens and other drugs were becoming widespread (Stencel, pp.201). The military

implemented mandatory drug testing because of the widespread use and the number of

Vets that were returning home because of addiction. Ronald Reagan pushed for

employers to implement drug testing and even had himself screened for illegal drugs to

encourage employers and to reduce opposition to testing (Stencel, pp. 200). ?The

increased concern about drug abuse has, in part, ben the result of the early 1986

appearance on the streets of crack-a new, powerfully addictive form of cocaine-and the

growth of cocaine addiction? (Berger, 12). President Reagan later called for a second

?war on drugs? campaign.

In October of 1986, President Reagan signed into law a 1.7 billion dollar antidrug

bill, called the ?Drug-Free Workplace Order?. In addition to the bill, Reagan instructed

his cabinet officers to create a plan to begin drug testing for federal civil employees

(Berger, 14). Drug testing thus begun a sharp climb into the area of private employers. In

November of 1988 Congress passed an Act requiring grant recipients or federal

contractors to maintain drug-free workplaces. Most of the employers set up voluntary

testing programs and many employees began to sue, claiming that individual testing is a

violation of privacy rights. The argument is that the employees are being deprived of their

Fourth Amendment protection. Many believe that government testing programs should be

unconstitutional unless the authorities have either reasonable suspicion or probable cause

that the individuals being tested are on drugs.

To justify the use of private employer testing, President Bush said in 1989 that

?Drug abuse among American workers costs businesses anywhere from $60 billion to

$100 billion dollars a year in lost productivity, absenteeism, drug-related accidents,

medical claims, and theft? (Horgan, 19). This claim was derived from a source that

interviewed families that were 28% lower in overall income than the average household.

This was used in an effort to promote Bush?s ?war on drugs? forum into the private sector

(Horgan, 21). Many behavior?s of lower income people often differ statistically from

upper-income people, therefore the statement of Bush never establishes a clear or accurate

statistic.

?In 1989 President George Bush unveiled his National Drug Control Strategy,

encouraging comprehensive drug-free workplace policies in the private sector and in state

and local government? (Stencel, 201). This created many controversies within the

American workplace and in National Treasury Employees Union v. Von Raab decision,

the Supreme Court upheld that drug testing was legal as long as it outweighs privacy

rights (James). Then, in 1991 Congress passed the Omnibus Transportation and

Employment Testing Act, which would extend drug testing in the United States.

Throughout the rest of the 90?s drug tests were extended to the outermost sectors of

society causing drugs to become a significant issue during election times, although

politicians are never tested themselves.

The Fourth Amendment of the Constitution was created because of the rough

treatment of colonists by the British. The British restricted trade and travel and this gave

way to smuggling. ?British soldiers frequently conducted unrestricted house-to-house

searches. People were forced to keep their private records and other personal information

on their person or hidden in their home or business to avoid exposure and possible arrest?

(Berger, 102). The Fourth Amendment was part of the Constitution?s Bill of Rights to

protect one?s privacy and maintain search and seizure guarantees. The right to privacy

was described by Supreme Court Justice Louis D. Brandeis as ?the right to be let

alone-the most comprehensive of rights and the right most valued by civilized men.?

The Fourth Amendment of the U.S. Constitution guarantees the ?right of the

people to be secure in their person, houses, papers and effects against unreasonable search

and seizure? except upon probable cause. Random drug testing threatens the Fourth

Amendment and has been called suspicion by association. This is to say that it is not

possible to justify a search of one person because they are similar to another. ?Suppose a

certain neighborhood has a high incidence of violent crime. The police cannot defend a

blanket search of all residents by claiming that there were many armed individuals among

them, they say? (Berger, 52). ?Random drug testing assumes that every student is using

drugs until they prove to the contrary by submitting a urine sample,? (ACLU, 1)

In general, the government cannot search a person without reason to suspect that

he or she is guilty of wrongdoing. There is an exception, however, in limited

circumstances, where the search is in special need, the government has a compelling

interest in the search or the privacy interests affected by the test are minimal. In Random

Drug testing there are no Fourth Amendment rights to be maintained. ?The right to

privacy is, as determined by the Supreme Court to be an implicit guarantee of the

Constitution? (Holtorf, 132). Drug tests reveal many areas of one?s life which may want

to be hidden to their employer or to the outside world. ?Drug tests can reveal the use of

contraceptives, pregnancy, or medication for depression, epilepsy, diabetes, insomnia,

schizophrenia, high blood pressure, and heart trouble? (Holtorf, 132). The disclosure of

this type of information can be both embarrassing and harmful to one?s social and

professional career.

In some cases this has led to loss of employment for discriminated individual?s.

Such in the case of Duane Adens, a former Sergeant of the Army. Adens was asked to

give a body hair and he refused. He then took a urine test and it came back negative. He

was then asked to provide hair for a test and when he did this the test came back positive

for drugs. Aden was stunned and the army denied his request for a DNA test of the hair

to prove it was his. Sergeant Adens received a bad conduct discharge in July 1998. ?For

a soldier to lose his self-esteem, family and military respect is a bit too much based on the

strength of a body hair.?-Representative Charles Rangel, New York.(Kean, 3-4). This

man will suffer the rest of his life, a federal conviction, because of a falsity in our Drug

testing system.

?In 1966 the U.S. Supreme Court ruled that compulsory blood tests are

bodily searches. The Fourth Amendment, it said , applied to such searches. A

compulsory blood test could be conducted only if there is ?a clear indication that in fact

evidence will be found? (Berger, 51). This is to say that someone can be given a test if

there is a specific reason to believe that this person is using drugs. In all court cases, the

court has ruled in favor of the plaintiff stating that the body and bodily fluids are

considered in the Fourth Amendment privacy clause. Yet in Drug Testing this is not the

case. In Allen v. City of Marietta, the Georgian court felt constrained by current law to

hold that a urinalysis is indeed a search. (Berger, 51). Urinalysis is most definitely a search

considering that a search of one?s home is considered invading privacy, what about one?s

urine? This is the most personal and private information one can give out.

Another clause in the Fourth Amendment in the Constitution is that of Due

Process. The Fourth Amendment clearly states that no person shall be deprived of life,

liberty or property without due process of the law.? Pre-employment drug screening

completely defies this in that it gives a prospective employee no chance of challenging the

test. The job seeker is not considered for employment without even knowing that it was

because of a positive drug test. There have been many cases that a person is eliminated

from the job pool because of a positive outcome of a drug test and the person is not a

drug user. The prospective employee has no chance to explain a positive test due to a

prescription drug or certain foods. It is possible to be a job-seeker and never obtain a job

because of positive results on a drug test due to a prescription drug, unless the prospective

employer uses their time to show the results.

Drug testing without a prior suspicion or probable cause can also lead to the

absence of Equal protection under the law, the Fourteenth Amendment (Holtorf, 135).

?The Fourteenth Amendment was cited as protection against selection of a group of

athletes for testing by the National Collegiate Athletic Association without demonstrating

a likelihood that drug use was prevalent in that population? (Holtorf, 136).

Drug tests today are considerably weak. Mistakes and errors swarm the vast

business of drug testing. ?Clinical laboratories are not experienced with the special

requirements for specimen collection, analysis, storage, documentation, transport, and

handling? (McBay, 33B). Often times, simple mistakes such as mislabeling or reporting

errors are the reason for a positive turnout on a drug test. ?Because drug testing has

become a very competitive industry, laboratories are implementing cost cutting measures

and attempting to test increasing numbers of specimens quicker and cheaper, which is

causing testing accuracy to worsen even further? (McBay, 33B). Often times, a positive

result has to be protested in order to have the test sent to a more elaborate, expensive

laboratory. An example of this was with a Heavyweight boxing match in which the boxer,

Tim Witherspoon was knocked out in the first round by James Smith and a week after the

fight Witherspoon was tested positive for Marijuana use. Witherspoon protested this and

it was later found that there was an error in identifying the specimen.

?Dr. Don H. Catlin, chief of clinical pharmacology at the University of California

at Los Angeles, says that drug-testing firms ?vary tremendously in quality from laboratory

to laboratory as well as within the same laboratory on a day-to-day basis??(Berger, 42).

The reason is because the person reviewing the tests needs to be both competent and

knowledgeable in this field considering that this is someone?s future at stake. ?The bulk of

the errors could be attributed to inadequate personnel, poor management, broken chain of

custody, faulty maintenance, and faulty admissions of reports and records, rather than the

tests themselves? (Holtorf, 63). Lack of education and experience often play a part in the

accuracy ratings of the different institutions.

?In the Spring of 1985, experts at the Centers for Disease Control in Atlanta found

a high rate of inaccuracy among the nation?s drug-testing laboratories. A study of 13

laboratories serving 262 drug-treatment centers in the United States revealed that all had

performed unsatisfactorily and had failed to identify correctly even half of the samples for

four out of five drugs tested.? (Berger, 43). ?Only 85 of the estimated 1,200 laboratories

in the United States meet federal standards for accuracy, qualified lab personnel, and

proper documentation and record keeping? (Holtorf, 60). Society is often misled on the

accuracy of the laboratories and many of the offices are performing much below the level

in which they are portrayed. True results would be damaging to a laboratory?s reputation

and to their business (Holtorf, 61).

One of the newest drug testing techniques being used is Hair testing. This form of

drug testing is considered less invasive and harder to pass. Hair testing can obtain

information on drugs that were done as long as three months prior to the day of testing.

The question of discrimination, accuracy and purpose of the testing raise the most

questions. Contamination of the hair is also a factor in the decline of accuracy of this test.

The hair of African-Americans binds drugs into the roots of the hair ten to fifty

times more than that of a Caucasian (Holtorf, 104). This is extremely discriminatory

because of the greater risk an African-American will have in taking a Hair test. ?Some

tests have shown that coarse hair shows much higher concentrations of drugs than lighter

hair after ingestion at the same amount of drugs? (Stencel, 199). There have been

numerous studies conducted that show that when two individuals ingest the same amount

of drugs, the darker complected, darker haired one will show greater concentration of the

drug. In two different cases two African-American women were tested positive to Drug

use through hair testing and now are pending investigations. ?Last August, Althea Jones

and Adrian McClure, along with six other Chicago African-Americans who say they

received erroneous hair test results when applying for the Police Academy, filed

complaints of racial discrimination with the Equal Employment Opportunity Commission.

The group is considering suing both the city of Chicago and Psychemedics? (Kean, 1)

Many scientists have confirmed that there is no true distinction between the drug

being smoked or being in the same area or room for a great duration of time in the result

of the hair test. Also, because of the low level of tolerance in the testing even a second

hand experience to a drug such as Marijuana can cause a positive result in a drug test.

Dyeing of hair also has different effects for types of hair. Using bleach, perming or

excessive UV exposure can decrease the chance of testing positive in a Hair test. ?For

these reasons, the ACLU strongly opposes hair testing. ?Every reputable scientific

organization in America rejects the use of hair testing for employment purposes,? (Stencel,

199). ?The Food and Drug Administration, the Department of Transportation, the

National Institute of Drug Abuse, and the Society of Forensic Toxicologists all raise

serious questions about the accuracy of hair testing. ?The consensus of scientific opinion

is that there are still too many unanswered questions for it to be used in employment

situations,? said Edward Cone, the National Institute of Drug Abuse?s leading researcher

on the test, in June 1998. In a recent interview, Cone said that hair testing ?is not ready

for use yet, where people?s lives are at stake? (Kean, 2).

Our Politicians in the United States are not tested for Drugs. This is quite

alarming that the idols that we vote into office and make out laws are somehow above the

law when in comes to Drug testing. ?In late September, the White House refused requests

from congressional investigators seeking information about the jobs held by those in the

special drug testing program. ?Your request amounts to asking us to be complicitous in a

methodical, broad scale invasion of privacy,? White House Counsel Jack Quinn wrote in a

letter to House Civil Service Subcommittee Chairman John Mica.? (York, 7). Even the

man who the leader of our great nation. The one man who holds the greatest power and

receives the most respect in the world has fallen into drugs. ?There is evidence that Bill

Clinton himself attended some of Lasater?s parties. ?I?d never seen the governor around

coke unless he was around Lasater.? Brown told Tyrell that he saw Clinton ?stoned? but

never actually witnessed the governor ingesting drugs? (York, 7). ?While Congress

pushed for more small businesses to do drug testing, it refused to submit to drug testing, it

refused to submit to drug testing for congressmen and their staffs, claiming it was too

undignified and possibly unconstitutional? (Stencel, 205). It isn?t fair for a Congress that

enacts laws to require the people to undergo drug tests not submit themselves to the same

level of testing.

Drug testing in our country does have its benefits. Yet there are so many

disadvantages and holes in Drug testing that it costs our country billions of dollars every

year. Employment Drug testing is a proven failure, the only gain is the gain of public

funds and reputations that politicians have gained through their active role in Drug testing.

Drug testing is not decreasing drug abuse, it is being used to discriminate thousands and

ruin lives of millions of others. The Fourth Amendment is a cornerstone of our counties

Democracy, Drug testing needs to be removed from our everyday lives to ensure that we

maintain this Democracy and continue to live our lives the ?American way? as the framers

of the Constitution intended.

American Civil Liberties Union. New Jersey judge blocks drug testing of student athletes.

New Jersey, 1997.

Berger, Gilda. Drug Testing. New York: Impact book, 1987.

Holtorf, Kent. Ur-ine Trouble. Scottsdale: Stephanie Cartozian, 1998.

Horgan, J. Test Negative–A look at the ?evidence? justyifying illicit-drug tests. Scientific

American, March 1990; 262(3):18-22.

James, Jeannette C. ?The constitutionality of federal employee drug testing.? The

Amerifcan University Law Review, Fall 1998.

Kean, Leslie. ?More than a hair off.? The Progressive. 63 no.5, 32-34. May 1999.

McBay, AJ. Drug-analysis technology-pitfalls and problems of drug testing. Clin Chem.

1987;33:33B-40B.

Stencel, Sandra L. Issues for Debate in American Public Policy. Washington D.C.:

Congressional Quarterly, 1998.

York, Byron. ?Fast times at white house high? The American Spectator. V29, pp.20-26.

1996.