Drug-Testing: The Assault on our Privacy

By David Kopel

Colorado Statesman, 1989. More by Kopel on drug policy.

"I don't take drugs," said Boston Red Sox pitcher Bob Stanley, "and I don't have to p[ ]s in a bottle to prove I don't."

Bob Stanley better hope that he never ends up playing in the American Association for the Denver Zephyrs. Because Rep. Phil Pankey wants the government to inspect the urine of our professional and college athletes, of all the legislators, and of every doctor, nurse, teacher, bus driver, and social worker in the state. And everyone applying for or renewing a driver's license.

Here's how drug-testing already works for federal government employees: The employee must remove any outer garments that might conceal items that could tamper with the specimen. During the "collection process" the employee is not allowed near water fountains, faucets, or soap dispensers. The "collection site monitor" places bluing agents in the toilet bowl to prevent toilet water from being added to the specimen.

The collection site monitor listens to the urination, and notes any "unusual behavior" while the employee is urinating. The employee may not flush the toilet until the specimen has been turned over to the collection site monitor.

When the specimen is handed over, the monitor checks its temperature and looks for contaminants. If the temperature is outside the established range, the employee must urinate again, this time under direct observation.

A few years ago, the idea that employers should watch their employees urinate would have seemed absurd. Today, the war on the drugs has degenerated into a war on the Constitution, with Phil Pankey leading the way.

Is it all worthwhile?

One of the most common rationales for drug-testing is that drug-using employees cost the nation so much in lost productivity. Yet the evidence indicates that a person's off-the-job recreational drug use has no impact on job productivity. According to the Journal of General Internal Medicine, a large hospital drug-tested all employees considered for hiring during a six month period. The hospital hired drug positive employees anyway. One year later, the hospital studied the employment records of all the new hires. The comparison showed "no difference between drug positive and drug negative employees" in job performance. A similar study of Post Office workers yielded the same results.

Employers certainly have the right to expect their employees not to be stoned or drunk or asleep on the job. But as the Journal of the American Medical Association (June 12, 1987) explains, drug testing does not indicate whether a person is currently impaired, just whether the person has used drugs in the last few days or months.

A person can test positive -- and be fired -- because of false positives caused by poppy-seed bagels (which look like heroin to the urine tester), nasal decongestant (amphetamines); and anti-inflammatory drugs or Ibuprofen (marijuana). The most popular drug test, the EMIT, gives false positives between 10 and 30% of the time.

At a recent conference of forensic scientists, including representatives of drug test manufacturers, a speaker asked "Is there anybody who would submit urine for cannabinoid testing if his career, reputation, freedom or livelihood depended on it?" Not one hand went up.

Fundamentally, the issue is not drugs, but the very structure of our society.

At the turn of the century, many American workers lived in "company towns," where a single large employer dominated not only the economy, but also workers' personal lives.

Remembers one southern cotton mill worker, "Anybody a-fussing, or maybe drinking or something like that, [his boss would] go out and see into it...if they didn't live kind of like they ought to, I think he would just move them out."

As working people have won greater rights, society has recognized that an employee's personal life is not his boss's business. In the words of a 1944 labor case involving the auto industry, "What the employee does outside the plant is normally no concern of the employer."

Now, employees who submit their urine for marijuana testing are shocked to find out that their specimens are also used to test for the drugs used to treat epilepsy, heart conditions, depression, schizophrenia, or diabetes. Employers, like the District of Columbia Police Department, who know it is illegal to ask prospective female employees if they are pregnant, just use urine tests to find out.

Suppose that urine testing did not reveal drug use, but instead revealed whether the person had committed a robbery. (Maybe the excitement of perpetrating a robbery released certain special hormones into the blood stream.)

In this hypothetical, would there be any reason to oppose urine testing? Absolutely, and the arguments would be just the same. To catch criminals -- even the worst kinds of criminals --it is unamerican and repulsive to subject innocent people to degrading searches.

The principle that allows drug testing today could in coming years justify roadblocks and house-to-house searches for drugs, illegal immigrants, or guns.

A person's intimate body fluids do not belong to the government, to inspect at random. 301 years ago, John Locke laid the philosophical cornerstone for democratic capitalism when he declared: "Every man has a Property in his own person. This no Body has any Right to but himself." Or as former Supreme Court Justice Louis Brandeis affirmed, the "right to be left alone" is "the most comprehensive of rights, and the right most valued by civilized men."

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