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Mandatory drug testing allowed.

National Treasury Employees Union v. Von Raab, --U.S.--, 109 S.Ct. 1384; Skinner v. Railway Labor Executives" Association, --U.S.--, 109 S.Ct. 1402 (1989).

In two of the most closely watched and eagerly anticipated cases of last term, the Supreme Court rendered its first decisions on testing for drug and alcohol abuse in the American workplace. In National Treasury Employees Union v. Von Raab, a closely divided Court held, 5-4, that the United States Customs Service may impose mandatory urine tests to check for drug or alcohol abuse by employees seeking drug enforcement positions. Writing for the majority, Justice Anthony Kennedy argued that, while a drug-screening program requiting urinalysis constitutes a search within the meaning of the fourth amendment, such tests do not violate privacy rights even where there is no evidence in advance of individual employee abuse. Moreover, Justice Kennedy argued, the government has a compelling interest in detecting drug use among Customs Service employees eligible for promotion to sensitive positions. In the second case, Skinner v. Railway Labor Executives" Association, the Court, in a 7-2 opinion (authored again by Justice Kennedy) held that mandatory blood and urine tests for railroad workers involved in accidents do not violate the fourth amendment prohibition against unreasonable searches and seizures.

In Von Raab, the Court was confronted with an unusual situation, in that the Commissioner of Customs, William Von Raab, admitted that "Customs is largely drug-free." Despite the apparent lack of a drug or alcohol abuse problem, Customs decided to proceed with a testing program in the belief that "there is no room in the Customs Service for those who break the laws prohibiting the possession and use of illegal drugs." Therefore, drug tests were made a condition of employment for positions that involved drug interdiction, carrying a weapon, or handling classified material. Employees who test positive for drugs and who offer no satisfactory explanation are subject to dismissal from the Service.

A group of federal employees and a union official brought suit in federal district court in Louisiana, alleging that the Customs Service drug-testing program violated the fourth amendment. The district court agreed and enjoined the program. A divided panel of the United States Court of Appeals for the Fifth Circuit vacated the injunction, finding that the drug tests were reasonable under the fourth amendment and noted that such tests were an aspect of the employment relationship. The Supreme Court affirmed the circuit court's opinion except as it related to the testing of applicants who handle classified material. There, the majority found that the record in the lower courts was inadequate and remanded that part of the case.

Justice Kennedy argued that the government has a "compelling interest in ensuring that front-line interdiction personnel are physically fit and have unimpeachable integrity and judgment." The Court was not troubled by the apparent lack of suspicion of drug use among Customs employees, finding that the government's need to conduct so-called "suspicionless" searches outweighs the privacy interests of employees engaged directly in drug interdiction and those who are required to carry firearms on the job.

While the Court's decision in Von Raab does not directly affect most private employment, it is likely to send a strong signal to employers who impose or plan to impose drug and alcohol tests. The Court also did not address the constitutionality of random drug tests.

In dissent, Justice Scalia argued that the Customs Service drug testing program is a "kind of immolation of privacy and human dignity in symbolic opposition to drug use." Scalia pointed to the fact that there appears to be no drug problem among employees at Customs and dismissed the program as an empty if symbolic gesture. Justices Kennedy, Marshall, and Brennan also dissented, with Marshall submitting a separate dissent.

In Skinner, Justice Kennedy found that Federal Railroad Administration regulations governing drug and alcohol testing of railroad employees were constitutional. The majority held, as it did in Von Raab, that "[t]he government interest in testing without a showing of individual suspicion is compelling," and that employees' expectations of privacy were not enough to overcome this interest.

Unlike Von Raab, where the Court admitted that no drug or alcohol problem plagued the Customs Service, the majority noted that on-the-job intoxication is a significant problem in the railroad industry. As a result of mounting evidence of such a problem, the Federal Railroad Administration promulgated regulations that mandated breath, blood, and urine testing of employees involved in certain train accidents. The Railway Labor Executives' Association brought suit in the United States District Court in San Francisco, seeking to enjoin the testing, but the district court granted summary judgment for the government and dismissed the action. A divided panel of the Court of Appeals for the Ninth Circuit reversed, holding that the breath, blood, and urine tests are searches for purposes of the fourth amendment. The Ninth Circuit argued that "particularized suspicion" is necessary before toxicological testing of employees may occur, and since the FRA regulations did not require such suspicion, they violated the fourth amendment's prohibition against unreasonable searches.

In reversing, the Supreme Court argued that while the testing did indeed constitute a fourth amendment search, the government's interest in promoting railway safety overcomes the privacy interests of employees. Requiring railroads to point to specific facts giving rise to a reasonable suspicion of impairment before testing an employee would frustrate the government's "compelling" interest in safeguarding the public against accidents. Finally, Justice Kennedy argued that railroad workers have a diminished expectation of privacy by virtue of their employment in a heavily regulated industry where safety is dependent upon the health and fitness of employees.

In a bitter dissent, Justice Marshall, joined by Justice Brennan, noted that requiring an employee to produce a urine sample on demand is one of the most serious of intrusions upon individual privacy; he argued that mandatory urine tests do not measure current impairment and therefore cannot differentiate on-duty impairment from off-duty use which may have no effect on job performance. Justice Brennan complained that "the majority's acceptance of dragnet blood and urine testing ensures that the first, and worst, casualty of the war on drugs will be the precious liberties of our citizens."
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Publication:Developments in Mental Health Law
Date:Jul 1, 1989
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