The Right to Privacy

One of the most common arguments made by those in favor of drug tests is that people with nothing to hide have nothing to fear by being tested. The obvious fallacy with this argument is that it ignores the invasion of privacy, which is something that everyone should protect. This right to privacy was best defined by Justice Louis Brandeis of the Supreme Court as being "the most comprehensive of rights and the most valued by civilized men".

Testing for drugs in the workplace invades the privacy of employees due to the fact that personal and private information beyond whether or not they take drugs can become available. This may include pregnancy, drinking alcohol, the existence of certain medical conditions, or taking any legitimate medication. These are all facts that you may not want your boss and workmates to know. It concerns your private like and it is no one else's business.

The Reasonable Expectation of Privacy

The right to privacy is a fundamental human right. Legally, employees have a "reasonable expectation" that this right will be respected when, for example, they use a bathroom at work. You should be able to do this in privacy and if your employer watches you then your reasonable expectation of privacy will have been violated. Demonstrating such as violation is generally the grounds for further legal action.

The reasonable expectation may be limited if you and your coworkers have been clearly informed that your workplace has a drug testing program, as well as details about how this program works. The fact that your workplace has given you this type of information decreases the privacy expectation, but it doesn't eliminate it completely. Any notifications about drug testing programs will generally be included as part of the documents or the employee manual that you are given when you apply for a job.

An employee's right to privacy can also be significantly diminished if their employer can demonstrate that they had a "compelling interest". This loophole gives employers the authority to invade the privacy rights of workers by "searching" body fluids. The right to privacy and its connection to the public interest will be discussed in detail in the following chapters. We will begin by discussing an individual's privacy rights.

Confidential Information

Conducting a drug test involves collecting extremely personal information about the subject. When you are sit a drug test, you have to let the tester know many details including about any medication you take, whether you take over-the-counter drugs and whether you have ever taken any illegal drugs. Your employer is not allowed to collect whatever information about you that it wants. There are some limits, however these are steadily being eroded. The employer is required to state the specific reason why they are asking private questions about their employees. This is particularly true when it involves information of a medical nature.

You should never hand your medical records over to your employer or give them the authority to obtain your medical records, unless you first understand exactly why they want to review your medical history. If you find that you do give your employer this permission, you need to make sure that they keep the information confidential.

The release and access of personal medical records is a field that is highly regulated. Most states will guarantee the individual's right to have their medical records protected. However what this means tends to vary significantly under the State Constitutions of different states. Any records that contain medical, psychological or psychiatric information is defined as "confidential". This means that it can only be accessed with the individual's written consent. If you are interested in knowing more about the degree of protection in your state, consult the "Guide to State and Federal Drug-Testing Laws". This is published by the Institute for a Drug-Free Workplace. Their website is

If you return a positive result to a drug test conducted at work, your employer has an obligation to keep that information private. They are not entitled to share the result with your colleagues, supervisor, or any other person. If this does occur, and your drug test results or any suspicions that they create are given to third parties, then you may be able to take legal action against your employer. This is particularly true if the findings were wrong. You could also be entitled to bring a defamation case if your employer reveals the reasons behind any adverse action they have taken against you (like termination) to a third party.

Who has Privacy Rights?

Under the Federal Constitution and each State Constitution citizens are protected against having their person or property searched or seized by the government in an unreasonable manner. This protection only applies when the action is carried out by a government official. It does not cover actions of other private citizens, businesses or companies. This means that companies do not have to abide by this protection. However, if a private company uses the services of the police or some other government agency when they are violating your privacy rights, you may be able to argue that the employer is a State "agent" and therefore the standards in the Constitution should apply.

Generally speaking, if you are employed by a private company it is a good idea to investigate the privacy laws as they exist in your State. In the majority of states, employees who work for private companies will usually have little means of protecting themselves from the invasive provisions of Mandatory Drug testing Programs that many companies (including some Fortune 500 companies) have adopted. According to the ACLU, it is not fair to protect the privacy rights of government employees and not those of people working in private industry.

Privacy Protection in the States

The constitutions of ten States include specific provisions about privacy. These states are Washington, South Carolina, new York, Montana, Louisiana, Illinois, Hawaii, Florida, California and Alaska. In some of these states the privacy provisions are more extensive than those contained in the Federal Constitution. One example is the Constitution of the State of California. Article 1, Section 1 of this Constitution guarantees that an individual has the right to privacy. Interpretation of this article has confirmed that it applies equally to governmental and private activities.

Article 1, Section 1 of the Constitution of the State of California says: All people are by nature free and independent, and have certain inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

One legal case that involved the application of privacy rights in California was White v David. In this case, the California Supreme Court found that in California an individual's privacy rights meant that governments and organization are not permitted to gather personal information in secret, to collect broad data, retain unnecessary personal data or disclose or use personal information in an improper manner. The judgment in this case involved a list of "mischiefs" that are meant to be prohibited by the right to privacy. This mischiefs are as follows:

  • Government snooping and the secret gathering of personal information.
  • The overly broad collection and retention of unnecessary personal information by government and business interests.
  • The improper use of information properly obtained for a specific purpose, for example, use for another purpose, or the disclosure of it to a third party.
  • The lack of a reasonable check on the accuracy of existing records.

In 1989, the State Appeals Court in California made its first ruling that upheld the validity of a private company making job applicants undergo drug testing regardless of whether or not the position involved safety concerns. In this decision, the pre-employment drug testing being carried out by Matther Bender & Co was found to be unanimously acceptable. In this judgment however, the court maintained that these rules could only be applied to new job applicants and existing employees may have stronger rights not to be tested.

Compelling Interests

An individual's privacy rights are often balanced against "compelling interests". One Californian Court, for example, has found that when it comes to drug use, the right to privacy does not mean that individuals are permitted to have or use cocaine in their home (People v Davis). A similar case (NORML v Gain) found that the Constitutional right to privacy cannot be used in California to allow individuals to use marijuana in their own home. This judgment will obviously be impacted by the recent passing of initiatives that permit the use of medical marijuana.

When the Constitutional right to privacy is infringed, this must be justified by reference to a "compelling interest". This usually means that the interest of the State is impossible to satisfy in a less intrusive fashion. The state must be able to provide sufficient justification for the intrusion into individual privacy.

Apart from the right to privacy, the Constitution also protects the right of an individual to be safe and to protect their property. When drug testing cases come before the courts they frequently involve pitting the Constitutional rights and interests of one group against another, for example employee against employers, co-workers or the public.

The clash between the Constitutional rights to privacy and safety is one issue that is yet to be resolved under the Californian Constitution. In Ingersoll v Palmer the California Supreme Court upheld the right of the police to conduct drunk driver "checkpoints" which pull over and test drivers randomly without any required level of suspicion. This is likely to set the standards that will apply in drug testing cases. The Court stated in this judgment that the right to privacy was protected by the fact that the general public had notice as to the checkpoint locations and that motorists were only stopped for a brief period of time.

The arguments against this way of thinking were pointed out by Edward Chen and John True. They are civil rights attorneys who stated that "no one has ever suggested that motorists be subject to random detentions and urine tests wherein they run the risk of losing their driver's license if such urine tests come up positive. Even sobriety checkpoints require probable cause based upon observation of behavior and appearance together with failed performance of a field sobriety test before the police can require the production of blood or urine."

Privacy Outside Work

Most people have the general expectation that their actions in their own, non-working time are not the business of their employers. In most cases the Courts will generally support this point of view. However, there are some significant exceptions to this way of thinking. For instance, when an employer is able to show that there is a direct relationship between your actions off-duty and on-the-job, they may be entitled to take disciplinary action. The important thing is the link between job performance and misconduct, regardless of whether your actions are legal or illegal (including using illicit drugs). Think about whether or not there is a link between smoking marijuana on the weekend and your ability to perform your job. It is arguable that casual marijuana consumption has no greater impact on job performance than drinking alcohol. The employer has the burden of proving the link exists. Obviously, this fact is often ignored by businesses who completely disregard their employees' rights.

Off-duty behavior is typically evaluated according to one of several standards and these will determine whether or not disciplinary action is appropriate. The standards may be whether the company suffered any injury, whether the employee was unable to perform their job, whether the employee presented a danger to the safety of coworkers or the general public, or whether the employee was unable to maintain positive interactions with colleagues.

It is also important to bear in mind the impact that drug tests can have on an individual's non-work behavior. Drug tests will usually reveal whether an employee uses drugs when they are not at work. Why does your employer have a compelling interest in what you do outside of work where it doesn't affect your job performance? Companies avoid this issue by applying "official policies" which state that employees are not allowed to have drugs in their systems while at work. Some companies believe that they have a responsibility to prevent you from consuming drugs in your own time so they develop policies requiring employees to be free of drugs all the time. When an employee returns a positive drug test it shows that drugs were found in their body when the test was conducted and this is considered a violation of the drug-free policy. This is true regardless of the employee's level of impairment.

Edward Chen and John True also say "May employers exercise control over off-the-job conduct simply because there is some correlation with job performance? If so, employers would have the right to control many aspects of worker personal life which could influence performance and productivity, including domestic disputes, personal financial woes, sleeping and eating habits, cigarette smoking and indeed any personal condition which affects an employee's overall physical and mental health. This argument has no logical limit, and it leads logically to frightening consequences. If drug tests are permitted, why not psychological tests and genetic screenings?

The Evolution of Privacy

There are substantial differences in the Federal and State law governing privacy. One example of this can be seen in the case of the elections in Oregon in November 1986. At this point in time, even though it was the height of the "War on Drugs" in the United States, Oregon voted on the issues of legalizing marijuana use. While in the rest of the country private and public employees were being drug tested, admitted to compulsory treatment and even being fired for their personal consumption of marijuana, more than 90,000 Oregonians voted in favor of legalizing it. This ballot was eventually defeated 2 to 1, but the important point to make was that it was an issue that was voted upon.

In this vote in Oregon, the term "private" was simply defined as "not public". This meant that marijuana could only be used if it would not impinge upon the public enjoyment of people whom it might offend. This definition of private is similar to the way it is defined in laws about public drunkenness or indecency. If this law was approved by the majority of voters, it would have remained illegal for people in Oregon to be in possession of marijuana in public places such as parks or school grounds.

At the time this law was being considered in Oregon, Governor Vic Atiyeh also rejected a proposal that would have seen all State employees drug tested. This proposal was made by the President's Commission on Organized crime. Governor Atiyeh said that drug testing should not be required in the workplace because he believed it was "not necessary" and he also didn't think that drug use was a "major problem" with state employees. He said that the behavior of employees on their own time was not his concern unless it affected the performance of their job. He also advised that private companies should not drug test their employees due to the fact that this "involves an unfair presumption of guilt".

The different meanings given to privacy in the State and Federal context is also illustrated by the ruling of the Alaska Supreme Court in the case of Ravin v State. In this case the court found that individual privacy was protected by the Alaskan Constitution and marijuana use is not a large enough public risk to justify the State's invasion on privacy rights. Several surveys conducted after this case confirmed public support for the outcome. These surveys also suggested that public opinion was in favor of legalizing possession of small quantities of marijuana or even legalizing it completely.

This case was reviewed by the Supreme Court of Alaska in the case of Harrison v State. This case involved the arrest of a State trooper for alcohol possession in a dry county (an area with laws prohibiting alcohol). He argued that the result of the Ravin case allowed him to justify alcohol possession, claiming that if someone can have marijuana he surely should be able to have alcohol. The court disagreed with this argument. They compared the overall effects of both alcohol and marijuana on Alaskan society. This led them to conclude that there was more reason for the State to enforce regulations against the use of alcohol than marijuana.