Government Drug Testing and Individual Privacy Rights: Crying Wolf in the Workplace

Abstract

In recent months, public attention has dramatically been drawn to the dangers posed by substance abuse and drug dependence. While much of the publicity has focused on educational programs and efforts to halt the flow of narcotics to the United States, the role of drug testing in the workplace has surfaced as a central theme of the campaign against drug abuse. The effects of substance abuse on the property rights of private employers and of drug testing on the privacy rights of private employees have been discussed and debated elsewhere. However, the constitutional and policy problems created by suspicionless drug testing of government employees have become the subject of vigorous and unresolved arguments pitting individual privacy rights guaranteed by the fourth amendment against the fundamental government interest in public safety and workplace discipline. The randomness of government drug testing arguably violates two basic tenets of the fourth amendment: the prohibition against unreasonable search and seizure and the requirement of a warrant supported by probable cause. Conversely, the emphatic and immediate social interest in a drug-free environment militates for stringent measures to detect and eradicate substance abuse. This Current Topic argues that while the fourth amendment does not act as a complete bar to non-cause drug testing, it imposes a substantial evidentiary burden on the government which can only be overcome in a few severely circumscribed situations. In all other cases, suspicionless government drug testing of employees violates both constitutional prohibitions and social policy objectives.