Institute for Ethics & Policy Studies
The case against indiscriminate drug testing:
Addressing some likely counter-arguments,
and some conclusions.
All of this high-minded hand-wringing over drug screening vis
a vis the Fourth Amendment is just so much hot airthe 4th is not germane
here; no job applicant, employee, athlete, or student has ever had a positive
test result forwarded to the authorities for prosecutionthe only circumstance
which would rightfully bring the Fourth Amendment into play. Administrative
privacy violations are properly dealt with in tort venues.
A phrase emblematic of the Vietnam War comes to mind: Grab em by the balls, and their Hearts and Minds will follow (see Stanley Karnows Vietnam, pg. 435). In South Vietnam in the early 1960s, early U.S. pacification policy intent was to win the hearts and minds of the peasants in the south in lieu of bashing them collaterally amid scorched-earth pursuit of the Vietcong. Military cynics, however, saw mass coercion as the only effective policy for rooting out the elusive enemythat pacification constituted mere sophomoric think-tank sociological hogwash.
Our Drug War policymakers see things much the same way (recall our friend Congressman Gerald Solomon): threaten you with potentially ruinous extraconstitutional administrative summary punishment by having your (assertedly Fourth Amendment-immune) private employer place your job at risk and perhaps you will comply, maybe even get on board with your Heart and Mind to assuage your cognitive dissonance regarding your forced participation in Jar Wars. Tactically, its hard to beat; more or less analogous to the way in which soft money is used to circumvent campaign finance law: No overt prosecution of positive test results, no policy-impeding Fourth Amendment linkage.
But, as I have already documented extensively, it is easily demonstrated that our government is deeply involved in the promotion of suspicionless drug testing with clear extrajudicial intent despite the fact that such harks back to the historically repudiated General Writs of Assistance that inspired revolution and the very same Fourth Amendment that should indeed be brought to bear in addition to any potential tort relevance. Moreover, as made clear through the stare decisis chain flowing back from the recent Chandler v. Georgia drug testing decision, the fact that law enforcement authorities have yet to make overt evidentiary use of positive drug test findings does not imply that they cannot. They clearly can, for prosecutorial use of privately discovered evidence has mostly been ruled constitutional. Chief Justice Rehnquists continuing administrative exception apology for suspicionless drug testing is the classic straw man argument. Administrative of what?, we must ask. Summary judgement and immediate administrative punishment without due process, thats what. Read again the Chandler precedents analysis in the latter section of Chapter 4. Such may indeed have become permissible, but only in contravention of the original intent of the Fourth Amendment.
Managers have ongoing and pressing production work to tend to; they cannot be expected to also don the role of drug detectives endlessly ruminating over the legalistic nuances of probable cause. Moreover, restricted to cause testing, managers might hesitate to ever invoke it for fear of being sued by those claiming harrassmenthowever frivolouslyin the wake of subsequent negative assays.
Managers typically must and do invoke a host of disciplinary measures for cause on a routine basis. It goes with the territory, as does the possibility of being sued for harrassment by aggrieved workers. The most effective managers, however, are leaders who earn the trust and cooperation of their subordinates through principled behavior; they find it overwhelmingly unnecessary to rule by threat of force.
I am, however, acutely aware of the problems inherent in assessing the meaning of probable cause. Go to the dictionary: probable is defined as that which is likely. Go to likely, and it is defined as that which is probable. To the statistician, probable minimally connotes more likely than not, or >50% chance of an event (which can only be verified empirically). Finally, as a term of art in law, probable means that set of facts and circumstances which would lead a reasonable and prudent person to conclude that an event did in fact occur (paraphrasing Blacks Law Dictionary). An attorney of my acquaintence once remarked that we go to law school for three years to try to learn the meaning of the word reasonable. Such is nothing new; Cuddihy points out that cause ambiguity pervaded legal procedure during the 18th century:
In most circumstances, judges issued warrants automatically on a persons sworn complaint that he suspected, rather than believed that a place or person was connected to a crime (Cuddihy, op cit., IV.5, p. 1351)
Probable had diverse meanings in 1789: likely, possible, even credible. In the context of contemporaneous usage, the Fourth Amendment assumed the least restrictive understanding of probable cause then available, what might now be termed plausible cause or possible cause. (op cit., V.5, p. 1527)
potential difficulties with operationally defining reasonable or probable
cause, however, it is clear that no employer relinquishes the right to act for
cause given the presence of random or blanket selection procedures in
the disciplinary toolkit. That employers must act with a bit of circumspection in this regard is a good thing.
The democratic nature of mandatory testing: Everyone (ideally) from the CEO to the janitor is treated equally.
This one can be labeled Gramps and Granny the Wal-Mart Greeters Do Their Bit for Corporate Democracy and the War On Drugs. Axiomatic to science are coherent sampling plans. Consider an analogy from the environmental remediation field. With respect to random drug tests, this democratic & fair counter-argument is the methodological equivalent of saying Well, we know theres serious environmental pollution out there, lets just sample the soil and water indiscriminately to find out just how bad it really is so that we can put a stop to it and clean things up. Such may indeed be appropriate should one have no idea whatever of the extent and distribution of a problem and preliminary study is warranted, but where drug abuse is concerned, we have boatloads of data estimating the prevalence rates among various strata.
Theres a cute little vignette in General Colin Powells memoir recounting the time his number came up for a random drug test and he was handed his notice as he was finishing up a press conference. Does anyone believe for a moment that this distinguished American leader needs to be screened for drug abuse? From Gramps to Granny to the General, such represents nothing beyond our 50 ml Loyalty Oath.
Again, it may be convenient policy taken on faith to possess significant deterrent and symbolic value, but it is not sound epidemiological science.
Employers and co-workers have a right to safe and productive enterprises. Moreover, employers that fund life and health insurance benefits have a justifiable imperative to minimize such expenses. If you apply for private life and/or health insurance, you will be tested for street drugs in the course of the physical exam. Invasion of your privacy? What about the rights and obligations of the underwriter?
The extent of the problem in the workplace is in serious dispute, and the wholesale efficacy of suspicionless drug testing in effecting significant gains in health, safety, and productivity is not demonstrated. The most disinterested, objective, and comprehensive contemporary workplace drug abuse study to date was undertaken by the National Academy of Science's (NAS) National Research Council and the Institute of Medicine. Their 1994 hardcover report Under The Influence? Drugs and the American Workforce delivered the following among their principal findings and recommendations (pp 3-13):
Given that tobacco and alcohol arguably account for in excess of 90% of the damage, it is remarkable that we do not seriously propose subjecting all workers to random alcohol and tobacco tests, is it not? Why not? Because, the apology invariably goes, those are legal substances.
Well, thanks for clearing that up. So, the suspicionless drug test does in fact serve an adjunct law enforcement goal.
Moving along: yes most private insurance exams do entail running the urine and serum samples for street drugs. Interestingly, you will be queried verbally during your insurance application interview as to your alcohol and tobacco consumption, but such will not be verified through bioassay, even though the far greater likelihood of aggregate underwriter loss owes to these legal intoxicants rather than drugs of the illicit kind. (Late update: This may soon change, and is likely to also be highly controversial. See box below.)
|Monday February 9,1998, 4:23 PM EST
Test Developed to Find Heavy Drinkers
WASHINGTON (Reuters) - University of Iowa researchers said Monday they had devised a battery of tests that could help show whether someone was a heavy drinker. Such a test series, if proven to work, could be used by both employers and insurance companies, they said.
Dr. Arthur Hartz and colleagues said 10 commonly performed laboratory tests, such as checks for chloride, sodium, high density lipoproteins and blood urea nitrogen, accurately predicted who was a heavy drinker when taken and analyzed together. "This is a step forward, but it needs to be validated to prove its reliability," Hartz said in a statement.
The findings were published in the Journal of Clinical Epidemiology.
Hartz's team did 40 separate tests on 426 self-described heavy drinkers and 188 light drinkers. They said their 10 tests correctly identified 98 percent of the heavy drinkers and 95 percent of the light drinkers.
But, then, insurance companies frequently act in ways that defy actuarial sense. One need only consider current policy hand-wringing over the spectre of genetic profile discrimination. Indeed, the Clinton Administration recently proposed outlawing employment discrimination on the basis of genetic tests (see box below), and David Shenk, in his recent article Biocapitalism: What Price the Genetic Revolution (Harpers Magazine, Dec. 1997, pp 37-45), points out that a variety of genetic mutations thought to be health risk markers are certain to be summarily declared to be pre-existing conditions mandating underwriting exclusion. Such knee-jerk exclusionary tactics will undoubtedly be challenged in the courts, where one hopes the crude nature of current genetic risk assessment will be exposed. (Note: on May 1, 1997 the Associated Press, citing a study published in the May 1997 issue of Molecular Psychiatry, reported the isolation of a heroin abuse gene. Will we see a pre-employment drug abuse gene screen once the assays become price-competitive with current methods? Absent legal proscription, such is certain.)
|Tuesday January 20 4:44 PM EST
Clinton seeks genetics protections
WASHINGTON, Jan. 20 (UPI) The Clinton administration has endorsed legislation in Congress that would prohibit companies from discriminating against workers in hiring or promotion on the basis of their genetic makeup. The endorsement was announced today by Vice President Al Gore, who argued: The fear of genetic discrimination is prompting Americans to avoid genetic tests that could literally save their lives.
The proposed legislation would ban companies from requiring or requesting a genetic test or genetic information as a condition of employment or benefits, and ban the disclosure of such information without the patient's full consent. It would also prohibit employers from using genetic information to discriminate against workers or otherwise limit job opportunities, with some exceptions in cases involving workplace health and safety.
The administration, which last summer endorsed legislation to ban genetic discrimination in health insurance, issued a new study predicting a significant increase in the potential for misuse of genetic information. Although some critics have called such fears premature, the study describes some women as already rejecting genetic screening for the risk of breast cancer out of concern the results will be misused by employers or insurers.
A survey last year of more than 1,000 people by the non-profit National Center for Genome Resources in Santa Fe, N.M., found 65 percent said they would not take genetic tests for diseases if health insurers or employers would have access to the results. It said 85 percent said employers should be barred from obtaining information about an individuals genetic conditions, risks and predispositions.
A final thought on this question: There is no law requiring that employers provide insurance of any kind to their employees. Citing employer health benefits cost concerns to justify privacy intrusions, consequently, is irrelevant.
The irrelevance of prevalence: As Justice Kennedy observed by
the way of analogy in Treasury, (subsequently echoed by Justice Ginsberg
in Vernonia), the fact that airport passenger screening almost never turns
up weapons in no way negates the utility of the policy. Deterrence is often
necessarycritical, even,and cannot be evaluated solely by post-hoc empirical
measures. Drug abuse prevalence might very well be considerably higher
absent mandatory testing.
Invalid analogy, period. If you are a false positive at the airport metal detector, you or your carry-on baggage are quickly checked further to verify the error and you are sent on your way. Your name and other personal data are not recorded. Should you erroneously test positive for illicit drugs on the other hand, you are likely in for a protracted, aggravating, and expensive battle to clear your name.
Moreover, Your Honors, the relative risks posed by illegal weapons aboard aircraft versus illegal drug metabolites in workers specimens are utterly incomparable; the latter are on average trivial by comparison.
Justice Ginsberg made an additional interesting observation that merits comment. She opined that one could avoid airport screening by opting to eschew air travel. The clear implication is that one can avoid workplace drug screening by foregoing employment where testing is policy. Given that approximately 80% of major U.S. corporations conduct drug screening programs, those who object to suspicionless testing on principle find themselves increasingly boxed in, and ones capacity for ethical fortitude becomes a function of the depth of ones pockets as commercial labs aggressively market their services to virgin employment territoryabetted by politicians eager to posture as tough on drug abuse (recall congressman Gerald Solomon, self-appointed drug war general and champion of the indiscriminate employment drug test).
Your fastidious concern for privacy principle may be just fine
on the ground and at home, but at 30,000 feet and 500 knots, the airline
passenger has no need of a stoned flight crew.
This is a staple argument of the suspicionless drug testing advocate. Well, one extreme (and remotely likely) example deserves its reciprocal. Yes, Im a living-on-the-edge rogue airline pilot, always willing to risk years of expensive training, a prestigious job, and the lives of others (to say nothing of my own) just to get high when Im due to fly. On the way to the airport, I smoke a joint and swig down some Quervo Gold. In the parking lot I do a line of cocaine and pop a barb to take the edge off, then head for the office where I provide a urine sample for my drug test. No problem; the drug metabolites have yet to appear in my excreta, and the assays do not even check for alcohol. Im off to do my pre-flight and rev the engines.
With respect to the private sector, your argument fails to take into account the utterly legal norm of employment-at-will. Employers have the right to monitor you at will on the job, and terminate you for any reason, however arbitrary.
Recently a Texas man was summarily terminated for wearing a Green Bay Packers shirt to work during the 1996 NFL playoffs. His boss and the great majority of his co-workers were Dallas Cowboys fans. Such constitutes an lamentable episode of lose-lose stupidity, and is, of course, bound for the courts, where issues of excessive worker monitoring and wrongful termination are yet to be definitively settled. Legal Scholar Laura B. Pincus, J.D. enumerates the crazy quilt of state legislation and contradictory case law rulings in her collaborative American Business Law Journal article The Disparity Between Public and Private Sector Employee Privacy Protections: A Call for Legitimate Privacy Rights for Private Sector Workers (Pincus & Trotter, Vol. 33, 1995). However customary the practice of employment-at-will may be, it is incontrovertible that such does not provide employers total discretion in matters of arbitrary surveillance and termination. Pincus and Trotter call for legislation that would at the very least upgrade private sector privacy protection to the equivalent of that enjoyed by public sector employees. These authors frame their case with four core assertions:
While I agree with all of the foregoing, I would just add that they speak only to utilitarian and empirical issues; they fail to address the more fundamental historical basis for our very Bill of Rights as it pertains to privacy, as discussed in Chapter Four.
As I alluded to above, issues of excessive private sector worker monitoring (including drug testing) have yet to be definitively settled at the federal judicial level. For example, could private employers actually forward positive drug test findings to the authorities? The relevant Supreme Court precedentssuch as those we have examined in Chapter 4while contradictory to an extent and lacking in compellingly analogous case attributes, seem to indicate that, yes, employers could. Well, could private employers strip-search employees in search of drugs or other contraband? What are the Constitutional limitsif indeed there are anyon proactive private investigation of criminal (or any) conduct? What the majority deem reasonable? (By whose assessment? Surveys have from time to time indicated a majority sentiment for ripping up the obstructionist Bill of Rights in furtherance of law enforcement efficiency.)
Could the Disney Corporation require that both employees and paying customers wear the new drug-detecting skin patches (now coming into vogue for use on parole, probation, and clinically-remanded substance abuser populations) while on the premises? After all, Disney has a valuable market interest in providing its customers with a wholesome, family-oriented, drug-free environment. Similarly, could private apartment complexes or gated master-planned communities, eager to assure their market prospects of safe and drug-free habitats, require that renters or buyers submit to drug testing? Would such controversies not involve federal constitutional questions similar to other civil rights violations?
They certainly would. And perhaps the Court will have the good sense to adjudicate such issues in the spirit of Original Intent as so thoroughly examined by Cuddihy. Recall from Boyd: Obsta Principiis.
If we think of a hiring decision assessment as comparable to what statisticians call a logistic multiple regression analysis, the questionable predictive utility of a negative drug screen result becomes readily apparent. Let us first review briefly the essence of statistical regression techniques.
Regression analysis simply refers to mathematical techniques used to predict an outcome or dependent variable from one or more independent variables. Recall from Algebra 101 the simplest general form of a mathematical function where y = ax + b. We call such a deterministic function in that y is exactly determined from values associated with x (a being the coefficient of x and b the y-intercept). The probabilistic function is similarly expressed in its simplest form as y = ax + b ± e, where e is some error factor. (A confusing term of art, error in this context implies inherent phenomenal variability, not mistake or blunder.)
Multiple regression merely adds into the equation additional independent (x) variables that one hopes will minimize the error term (e) and improve our predictive ability. For example: If I know your height, can I guess your weight? Well, yes, but if I also know your age, sex, waist size, shoe size, hat size, body fat ratio, and so forth, I am much better able to calculate your weight more accurately. Each additional x variable adds predictive power in excess of the sampling variability it also contributes to the analysis.
Logistic regression is merely one where y, the outcome variable, is expressed as a percentage. Widely used, for example, in health care for projected mortality estimation where statistical models are derived to predict expected death rates given a particular mix of independent factors, in such equations the y variable is the proportion of patients expected to die, say, during a hospital stay, or within a specified length of time.
A hiring decision-maker is subjectively performing the functional equivalent of a multiple logistic regression analysis. The dependent variable y can be expressed as p(s), the probability of a successful hire, where success means that the candidate will turn out to be an effective employeea worthy, value-adding hire. So then, as a general logistic expression we can state that:
a1x1 = high school record
a2x2 = undergraduate record
a3x3 = graduate school record
a4x4 = additional training and/or certifications
a5x5 = prior employment
a6x6 = prior employment
a7x7 = prior employment
a8x8 = references
a9x9 = interview evaluation [Note: a is the regression coefficient for each independent variable.]
and so forth (however operationalized. **) on out to anxn, which we will posit as our drug screen result, where 0 = negative and 1 = positive (statisticians call this type of dichotomous indicator a dummy variable. It is also a dummy metric in a different sense that I intend to make clear). Our employment decision-maker is interested in an outcome as close to 1.0 as possible, and seeks permissible pre-employment data that maximize p(s), the probability of making a good hire.
such a regression model (not to mention even acquiring sufficient representative,
stratified, and blinded data in the first place) would be fraught with
research and measurement difficulties worthy of an additional thesis. With
respect to educational records, would we use the raw GPA, or one weighted
for difficulty of major and/or quality of institution(s). What of prior
employment? On advice of counsel, most previous employers are tight-lipped
regarding the quality of former employees tenures (an obstacle that has
spawned a grey-market industry of surreptitious background-check data harvesters).
Can we infer previous performance success from a confluence of indirect
measures such as length of employment, salary level, and/or reputation
of prior employers, etc.? What type of consistent metric might we derive
to assess personal and professional references? Is p(s) merely a linear
function of the independent variables? Curvilinear? Loglinear? Non-linear?
Difficult questions, all.
Moreover, the most difficult aspect of all would be neither the operational definitions of independent variables nor a viable aggregate mathematical model structure, but the very acquisition of empirical employment data wherein subjects across strata had been evaluated as successful despite a positive drug test result in their employment histories; If you test positive, you are not even hired, or, if already on the job, you are usually fired or corecively remanded to treatment and summarily branded as a problem employee. Such renders objective research in this area problematic. Our theories concerning drug addiction in general suffer from this built-in bias; one cannot randomly select normal human subjects to sort into experimental and control groups, with experimental cohorts dosed with illicit drugs for sustained periods to observe addiction effects. Consequently, our observations concerning addiction derive from clinical problem sub-populations, leaving us with an inherent generalizability limitation.
A variety of unknowns confound the quest for p(s) = 1.0, i.e., the perfect hiring decision. A stellar set of academic GPAs, excellent work history, laudatory references and so on, do not guarantee future job success; some factors are just inherently unknowable in advance. Actuarial probabilities also slightly reduce p(s); the employee might be run down by a truck three months hence, or be diagnosed with a previously undetected fatal or otherwise debilitating malady (genetic testing may change this, however: see below). Moreover, some data elements inclusion are proscribed by law, at least in theory. Under Title VII, race, national origin, religion, gender, age, political affililiation and other non job-related data are also among those disallowed. The Target discount store chain, for example, was successfully sued several years ago over its use of the MMPI (Minnesota Multiphasic Personality Inventory) in assessing employment candidates character. The MMPI is a clinical diagnostic instrument appropriate only for the evaluation of psychopathology in clinical settings. (See Soroka v. Dayton Hudson Corp., No. AO52157, 10-25-91. See also Getting Personal, ABA Journal, Vol.78, Jan.1992, pp.66-67.)
Well, what about the drug screen (xn)? Surely, sobriety is a relevant employment factor, is it not?
One obviously cannot disagree with that, but here is where things get interesting. Let us put aside for the moment the issue of whether a positive drug test always provides dispositive evidence of employment undesirability. Of necessity, we stipulate that motorists testing positive for DWI (usually defined as >0.10% blood alcohol concentration) are, in the aggregate, temporarily mechanically incompetent and unacceptably dangerous to others. Is a positive employment drug test always equivalently dispositive evidence of employment incompetence or otherwise prohibitive hiring liability? While I rather doubt it, I am more interested in the value of the negative drug test and its role as a decisive employment criterion.
The central question: Is a negative employment drug screen result invariably sufficiently important and accurate to confer upon it the primary determinant status Title VII and good judgement demand?
No, it is not, and heres why. A conventional regression analysis method statisticians routinely use is that of the backward stepwise iterative procedure, in which data for all independent variables are included in a tentative model expression and then assessed and eliminated if necessary one-by-one until all remaining predictors are above a pre-determined predictive significance level. Variables falling below the significance threshhold given the presence of the other significant predictors are discarded on each successive evaluation until an equation containing only sufficiently significant predictors remain. Our goal, remember, is to arrive at a mechanism with optimal predictive power, one that maximizes p(s), one that yields the smallest error term.
It is my contention that our drug screen dummy variable xn would be discarded by the stepwise regression procedure for nearly all employment strata were we able to acquire the requisite data and run the numbers. A binary (0/1) xn pales in predictive power aside more finely calibrated (and relevant) directly job-related predictors. Consider that xn is itself highly correlated with the other, more powerful elements; the probability of testing positive is inversely proportional to the training and skill levels reflected in the remainder of employees resumes. Drug use is not randomly distributed throughout the workforce.
In this sense, a negative xn is overwhelmingly redundant; it adds no new information where the applicant brings verifiable, job-related information to the evaluation. Yet we continue to assign it controlling force in employment, in direct contravention of Title VII requirements and common sense. One more simplistic triumph of symbol over substance.
Seen in this light the indiscriminate drug test is substance abuse of the most inane sort.
One might legitimately object, however, about the qualifier verifiable, job-related information. What about the transient, low-skilled sector wherein workers often encounter strenuous, dirty, and dangerous assignments and bring little in the way of verifiable work history documentation to the hiring process? Such is indeed a valid objection, particularly since such employment sectors also tend to be those with higher drug use prevalence.But, if we think in terms of a labor continuum from the highly educated and credentialed employee to the unskilled, undocumented day-laborer, we cannot but guess at where to draw the line from a purely utilitarian cost/benefit perspective, given the highly suspect quality of the available data. We can, on the other hand, be certain that those below the line will feel unfairly singled out.
Moreover, as stated previously, the high prevalence strata were long-ago consigned to testing. Testing vendors, desperate for revenue and market share in a tight-fisted low-bid environment, increasingly hawk a solution in search of a problem in pitching their services to ever-lower prevalence employment sectors. It is perhaps telling that, when apologists for surveillance vendors are challenged on empirical necessity grounds, the ad hominem what-have-you-to-hide adverse inference weapon is reflexively brandished.
If an employer is justified in coercing a worker to abstain from potentially harmful indulgences such as illicit drug use on health, safety, and productivity grounds, would not then the reciprocal of such be justified? Could an employers interest in optimal worker utility justify requiring that employees partake of activities or substances with output-enhancing potential?
Nicholas J. Caste poses just such questions in Drug Testing and Productivity (Journal of Business Ethics 11: 301-306, 1992):
One of the justifications for the mandatory drug testing of employees is the negative effect which drug use is said to have on employee productivity...Since productivity is negatively affected by the use of drugs the emplyer is seen to have the right to discourage their use by the imposition of sanctions including outright dismissal...I will argue that the acceptance of the productivity argument commits one logically to consequences which would be morally repugnant to many of its supporters...
The productivity argument essentially states that since the employer has purchased the employees time, the employer has a proprietary right to ensure that the time purchased is used as efficiently and productively as possible. Since it is the employees time that is purchased rather than a finished product (as would be the case with independent contractors) the employer must be concerned with contract enforcement and must attempt somehow to motivate the employee to attain maximal production capacity. In the case of drug testing, the abuse of drugs by employees is seen as diminishing their productive capacity and is thus subject to the control of the employer (p.301)...
The productivity argument thus seems to allow the employer the right to manipulate employees and to interfere with those aspects of their lives which affect production. But the argument if taken to its logical conclusion yields too much. (pp. 302-3)
Caste proposes a simple thought experiment involving the use of two hypothetical drugs, Hedonine and Pononine. Both of which are proven to be without health risks and both of which can be shown to enhance productivity. Hedonine is a euphorant, while Pononinethough equal in productivity enhancing effectproduces painful but otherwise harmless transient side-effects. Pononine is in fact the polar opposite of the common illicit drugs against which employers screendrugs which provide transient pleasure while allegedly compromising employee health and productivity.
Caste points out that the productivity rationale legitimating coercive action against illicit drug consumption, when taken to its inevitable end, forces us to logically conclude that partaking of drugs such as Hedonine or Pononine could indeed be required as a condition of employment.
Step outside the thought experiment and consider some propositions much less theoretical and much more likely to come into actual dispute. Many employers currently offer inducements such as health club memberships to encourage employees to improve and maintain their health, but one doubts that routine health club participation could be made a condition of employment absent optimal physical condition as a direct job requirement. Another hypothetical, one a bit closer to Castes thought experiment: If optimal mental capabilities are the requisite job attributes, could employers requirevia Hedonine/Pononine logicthat employees take daily dietary supplements such as St. Johns Wort (sometimes called natural Prozac) and Ginko Biloba? Both are thought to improve mental functioning without any damaging side-effects. Just what are the acceptable ethical limits of employer control over the personal life of the employee in pursuit of maximal productivity?
Finally, a point that Caste failed to address entirely: What if the employers star performerthe most reliable, productive, and apparently the healthiest and happiest employee in the officetests positive for illicit drug use? Terminate him? Remand her to treatment? Treatment of whatbesides her apparent bad attitude toward legal authority. It is a recurrent source of consternation among employers and co-workers when the good employee turns up positive. As Elinore Schroeder pointed out in the Kansas Law Review:
Presumably, current employees who test positive on a random or blanket drug screen have been performing at a satisfactory level; otherwise the employer would already have disciplined them...more than one management lawyer has received a call from a client asking, Our best worker has just tested positive. Do we have to fire him? (Schroeder, Elinore P., On Beyond Drug Testing: Employee Testing and the Quest for the Perfect Worker, Kansas Law Review, Vol. 36, 1988, p. 874)
We never even suspected he had a drug problem.
Maybe he didnt.
In Chapter 2 we examined some of the serious problems with the collection, analysis, and use of the policy data that undergird suspicionless drug testing policy. Let us here briefly dwell on two items which are among the Rosetta Stones of the Health n Safety n Productivity argument upon which coerced employment drug screening policies are ostensibly based: The Bensinger and Firestone studies of the early 1980s.
Peter Bensinger, former head of the Drug Enforcement Agency (DEA) and subsequently a politically active supporter of testing and provider of industrial drug-testing consulting services (Gilliom, op cit., p. 39), was hired by Georgia Power to develop and administer an aggressive random drug testing program at a GP nuclear power plant construction site. In his final report, he boasted of the programs dramatic effectiveness in reducing lost time accident rates. And who could argue with the data that accrued during the 5-year period (number of accidents per 200,000 man-hours):
Impressive, incontrovertible proof of the efficacy of drug testing, right? Decimation of the accident rate (i.e., a better than 90% decline). What more can one ask? Indeed, Gilliom notes that the Bensinger study drew immediate accolades in the popular and legal press of the day as utter proof of the efficacy of drug testing.
Well, critics pointed out (to no avail) that the random testing program was not even put in place until April of 1984, by which time the accident rate had essentially bottomed-out. Moreover, the proportion of accidents caused by illicit drug use was never established. Neither was the contribution of the overall safety and anti-drug awarenesss program, for GP had also introduced intense job safety-related procedures and training programs early on in the project. Finally, the largest rate drop occured in the first two years as workers became more familiar with their jobs and workplace environment.
No matter; proof of the effectiveness of drug testing was at hand.
The Firestone Tire & Rubber Co. study is a granite empirical reliquary beloved by drug policy druids impelled to recursively intone that drug users are almost 4 times as likely to be involved in plant accidents, 2.5 times as likely to be absent to for than a week, and 5 times as likely to file workers compensation claims, and they receive 3 times the average level of such benefits, for these liturgical tabulations originated at Firestone (Gilliom, op cit., p. 40.)
Well, drug testing advocates now had drug abuse policy proof of losses firmly in the other hand. Never mind another small (and also ignored) factual inconvenience which Gilliom illuminates:
While skeptical researchers have never been allowed to see the original data, it has been learned that the figures refer only to alcoholics that have been served by the Firestone EAP [Employee Assistance Program - mine]. (Morgan 1988, 685) This study was therefore based on an analysis of individuals who had been sufficiently impaired to either volunteer for or be ordered into the professional counseling program. The extrapolation to all working Americans who use illegal drugsas The Partnership For a Drug-Free America and the U.S. Chamber of Commerce didis entirely inappropriate. The statistics generated...have nothing to do with drug users, recreational or otherwise. (Morgan, 1988, 685) Nevertheless, these figures are widely and repeatedly cited, creating a pseudoscientific impression of firm knowledge about the impact of drugs in the workplace. (Gilliom, op cit., p. 40)
Given that in the late 1990s no one seriously doubts that illicit drugs kill millions of Americans each year; that 10% of all newborns are drug-addicted on arrival; that 1 in 6 workers has a drug problem; that hospital emergency rooms across the land have drug trauma cases occupying every gurney and stacked like cordwood out the doors and into the parking lotswell, the more things change in the drug war empirical strip mines, the more they remain the same.
No one can argue against the goals of safe and productive enterprise. Disputes are about causes of danger and loss, and choices with respect to effective remedies. Those who attribute causal factors of suboptimal workplaces to the dissolute character of the employees will naturally be among those who favor top-down, autocratic management, and its tactical corollary, surveillance (Taylorism, i.e., Theory-X, which posits a negative view of worker motivation and morals). Those, on the other hand, for whom organizational systems themselves are the primary source of trouble, see the issue more in terms of cooperative empowermenta philosophy associated with the views of Maslow (Theory-Y, in which individuals are seen to be overwhelmingly predisposed to want to succeed, i.e. the innate human drive toward self-actualization). This latter model forms the core of the theory and practice of TQM (Total Quality Management) and its tactical corollary CQI (Continuous Quality Improvement).
Dilbert Zone lampooning notwithstanding, evidence of plant-floor and service organization effectiveness of the TQM/CQI model is compelling. John Gilliom once again:
Evidence presented by Noble (1986) suggests that empowered employees who have the authority to truly participate in all key aspects of workplace management may be the best long-term solution to the safety problem. If that is the case, then top-down disciplinary policies that bypass and displace worker control may actually work against safety...
Nobles comparative analysis suggests that safety programs that empower workers rather than exclude them...more strongly serve safety interests because monitoring is in the hands of the workers rather than a vulnerable and politicized government bureau. (Gilliom op cit., p. 46)
A consulting firm known as The Reliability Group conducted a longitudinal study beginning in the mid-1980s focusing on safety and operating reliability issues among major U.S. manufacturers. Their report, How To Insure Successs in Safety and Operating Reliability, makes for instructive reading:
Since the mid-1980s, The Reliability Group has conducted client studies within Fortune 100 organizations designed to identify the true causes of industrial accidents, injuries, and unreliable events. Safety performance and operating reliability result from the complex interaction of factors such as supervisory style, job design, communications, and group norms & expectations (the organizational culture). Employees can deliver incredible results if given the opportunity: one client reduced both accident frequency and severity by over 80% within a three year period.
The Human Systems Reliability Survey is a comprehensive examination of factors that have exhibited a strong relationship to the occurrence of accidents in the workplace. The survey measures organizational variables (such as managements commitment to safety, degree of vertical communication, and organizational culture), work group characteristics (such as cooperation/teamwork, cross-job knowledge, and the degree of safety emphasis), physical and ambient characteristics of the workplace (such as physical conditions, degree of stress, and the quality & appropriateness of equipment), job-level variables (such as job autonomy, task/skill variety, and job satisfaction), and safety-related factors (incidence of near misses or close calls, accident investigation procedures, and employee recognition). Altogether, 120 variables are measured. Employees are asked to anonymously complete a written questionnaire. Respondents who experienced accidents (within the last three years) were compared to those who had not along all the variables measured. Discriminant analysis, a statistical procedure that forms linear combinations of independent variables, was used to identify the Survey measures that most accurately classified respondents into the two groups (i.e., those who has experienced accidents versus those who had not). The variables that were identified as the best predictors were then examined further through analysis of various procedures. That is, the mean scores along these variables for those who had experienced accidents were compared to the mean scores for those who had not, and the significance of the differences tested through the use of the F statistic.
Among the conclusions of The Reliability Group investigations:
Organizations that allow workers more control over their job environment are significantly more have a safer workplace than those who retain control at the top. In a one-year study of 30 manufacturing organizations conducted with a major international insurance company, researchers found that lower loss organizations typically allow employees greater control over their speed of work, the timing of breaks, and how they do their jobs. In addition, researchers found that work groups within safer organizations were given sufficient autonomy and authority to make necessary decisions.
A predictive model developed by Reliability Group consultants correctly classified 95% of the organizations into high and low loss categories based on measurements of both human and workplace factors. The data suggests that the accuracy of loss predictions dictions can be greatly enhanced through the consideration of human factors. According to Reliability Group President Hank Sarkis, organizations can improve loss ratios by emphasizing the development of human factors strongly related to safety. This study reinforced prior findings that humanistic, people-centered organizations that place a high priority on constructive interpersonal relationships often have superior safety records, he remarked.
Noteworthy in this report is the absence of any mention of drug testing. (NOTE: The full Reliability Group report is available online at http://www.quality.org/TQM-MSI/hdsqual.pdf. [Requires the Adobe Acrobat reader] Also, an enormous breadth of progressive quality management resources are available at the websites of Quality.org and ASQ, the American Society for Quality.)
Internationally-renowned management consultant Tom Peters (author of the book and PBS series In Search of Excellence) echoes the foregoing sentiments in rather, well, colorfully unequivocal language:
Q: Whats your reaction to the widespread use of drug testing as a condition of employment and random testing as a condition of cintinued employment?
A: Utter, unadulterated rubbish!...Put aside productivity problems and safety issues. Lets talk about what makes any business tick: Super folks who trust one another, care about one another, and are committed to working hard together to create great outcomes for each otherand their customers.
Trust. Respect. Committment. Mutual support. Each is wholly at odds with intrusive, impersonal assessment measures. That is, drug tests. (And, to my mind, canned psychological assessment tests; and secret snooping on telemarketers et al; and, heaven knows, lie detector tests.)...
No, Im not pissing in no bottle. And nobody who works for me is going to be forced to do so either. And if there were a law that required me to ask them to do it, Id close my place down before Id comply.
If you want an enivronment of trust, care, compassionwhich is the only kind of environment that will lead to trust, care, and compassion for customersthen stay the hell out of peoples personal lives. (Tom Peters, The Pursuit of Wow! every persons guide to topsy-turvy times, Vintage Books, NY, 1994, pp. 88-90.)
A closing observation regarding the safety and productivity issue: A recent darling of the pro-businesss, anti-regulatory political constituency is Philip K. Howard, author of the best-selling book The Death of Common Sense: How Law is Suffocating America. While some view Mr. Howard a bit cynically as an articulate right-wing equal-opportunity bureaucrat basher (albeit one with a special zest for OSHA-baiting), a core element of his argument is quite in accord with the findings of organizational empowerment advocates such as those sampled above. For Philip Howard, industrial safety is emphatically not enhanced by the mindless zeal of otherwise detached government inspectors who issue costly citations over safety railings out of spec by a fraction of an inch. Tangible results come from those closest to the bone, working in harmonious rather than adversarial environments wherein is cultivated an ethos of mutual respect and concernand shared enterprise vision.
And such requires more leaders and fewer spies.
One last point here: As John Gilliom so astutely observed (op cit., p. 43), it is no small hypocrisy that the business community so eager to buy into the suspicionless drug testing proposition is the very same executive cohort that never passes up an opportunity to otherwise angrily inveigh against and lobby against industrial health and safety legislation and regulations.
Let us consider another thought experiment of sorts. It is also fashionable of late in progressive management theory circles to insist that employers cease viewing labor as overhead and instead regard workers as capital assets. The concept has considerable appeal and ostensible merit, but begs what should be an obvious question. Employers clearly want to verify the wisdom of their labor investments by a variety of methods, drug testing being but one. A basic appeal of employment drug screening is its relative economy as an inferential index of employee health and character. But, what if cost is of no account? Where then do we (can we?) draw the line on the proper extent of employee scrutiny?
Imagine that you are William Cates, Chairman of the info-tech leading Macrosoft, and you are intent on hiring (investing in) a key executive operative who is to be groomed to assume the corporate reins upon your retirement. The choice is critical becausepopular notions regarding your vast wealth notwithstandingthe overwhelming bulk of your net worth is not liquid and is tightly coupled to the value of Macrosoft stock. The long-term worth of your estate will be determined in large measure by the long-term effectiveness of your successor.
After much winnowing you now have a short list of three distinguished candidates with essentially identical inventories of education, experience, skills, and accomplishments. A deciding criterion will be the relative health of the finalistsand prudence dictates that you construe the term health quite broadly. You require, therefore, that your finalists submit to comprehensive evaluations that include not only drug screens and complete conventional physicals, but also clinical exams extending to EEGs, CAT-scans, MRIs, bone scans, colonoscopies, and genetic tests. Moreover, your aversion to any potential boardroom character unpleasantness dictates that your candidates also submit to thorough background investigations and psychopathology assessments such as the MMPI (Minnesota Multiphasic Personality Inventory) and handwriting analysis. The sum of the invoices for these services will come to a mere $30,000 or so, pocket change for Macrosoft, and well worth the expense in light of the stakes for the company you founded and the equity that will underwrite your anticipated lengthy and comfortable retirement.
Finally, the winner of this heir apparent competition will be required to sign an employment agreement containing lifestyle restrictions similar to those agreed to by NASA astronauts: no risky off-the-job activities countenanced whatsoever. Given the lavish compensation accorded the eventual hire and the fundamentally job-relatedness of all of the foregoing (in your estimation), your private-sector market interest is compelling. Those who demur can take their vexed privacy sensibilities elsewhere. These platinum handcuffs are, in your best business judgement (and who can question that, in light of your long-dominant industry position), essential.
You are utterly unencumbered with respect to such tactics by the logical end of Justice Ginsbergs Fourth Amendment does not apply to the private sector declaration in Chandler and the consequent we-have-our-own-laws-at-Disneyland commercial worldview, are you not?
If not, then how and by whom are the limits to employer investigatory discretion and lifestyle control to be established?
Ultimately, by the Constitution and the Supreme Court of the United States acting on behalf of a free people, thats how and by whom.
Just as it is common knowledge among drug warriors and their supporters thatagain10% of all American babies are born addicted to drugs, that there are 500,000 drug-related emergency room visits a year, that 1 in 6 U.S. workers has a drug problemand so on, it is also common knowledge that the laboratory rat in the experimental cage will press the bar that delivers the dose of cocaine until he or she dies or lapses into unconsciousness. Weve all heard this, correct?
Well, perhaps yet another psycho-social urban myth is afoot. In the scholarly journal Common Knowledge (Winter 1996, Vol. 5, No. 3) comes a monograph by R.J. DeGrandpre and Ed White entitled Drugs: In the Care of the Self. This lengthy and thoughtful essay dismantles one widely held drug abuse myth after another. With respect to our friend the lab rat:
Not only are drug use and drug addiction contingent occurences, dependent on the users life history, but these occurences, appearances aside, are not drug centered. Despite reports in the 1960s and 1970s of laboratory animals overdosing on psychostimulants under conditions of general impoverishment but of unlimited access to drugs, more recent studies of rats, primates, and humans have effectively shown that high levels of drug seeking and drug taking can be reduced, or even eliminated, when alternative activities are introduced. Laboratory studies have moreover demonstrated that drug taking can even be prevented by enriching an environment with non-drug activities prior to making a drug available. A behavioral pharmacologist who studies these effects with reference to cocaine summarized them in observing that although current rhetoric would often have one believe otherwise...the self-administration of cocaine is governed by the same laws that govern behaviour maintained by other positive reinforcers. In other words, the reinforcing effect of cocaine is the result of an interaction between a drug, and organism, and an environment. (pp. 31-32)
It will be unfortunate if drug warriors of the William J. Bennett camp choose to cling to their Just-Say-No,-Or-Else bootstrap morality drug policy model and continue to dismiss such as the above as mere liberal environmental root causes baloney. DeGrandpre and Whites observations on the pharmacological, intra- and interpersonal matrices that characterize drug-related behavior from abstinence through addiction are backed up by a breadth of current clinical literature that emphasizes the relevance of personal and social values as key factors in intoxication issues. A literature search quickly returns recent titles such as
In A Moral Vision of Addiction, for example, Peele succinctly examines the history of our clinical ambivalence with respect to values discussion in the area of addiction:
The scientific study of addiction has strongly opposed value considerations in addiction, regarding these as remnants of an outdated, religious-moral model. Behavior therapists, experimental psychologists, and sociologists hold this view in common with disease theorists who have championed the idea that a moral perspective oppresses the addict and impedes progress toward a solution for alcoholism and addiction. Many social scientists and others, however, believe the disease approach actually is just another form of the moral model, and that the acceptance of the disease concept ... [has] covertly intensified rigid moralizing (Fingarette, 1985:60). It has accomplished this by embodying the evil of addiction in the use of the substancein any use of such drugs as cocaine and in any kind of drinking by those with alcohol problemsand by urging abstinence as if it represented a modern scientific and therapeutic invention.
Nonetheless, the aim of demoralizing addiction retains a strong appeal for liberal observers and for social and behavioral scientists. In fact, social researchers frequently bemoan the strong tendencies for both general populations and treatment personnel to continue to see addiction in moral terms even as most people ostensibly endorse the fashionable model view of addiction as a disease (Orcutt et al., 1980; Tournier, 1985). In other words, as scientists, they wish to stamp out entirely peoples continuing tendency to regard addiction as a reflection of the addicts moral qualities and to hold people responsible for addictive behavior. The view of the present paper, on the other hand, is that appetitive behavior of all types is crucially influenced by peoples pre-existing values, and that the best way to combat addiction both for the individual and the society is to inculcate values that are incompatible with addiction and with drugand alcoholinduced misbehavior. (p.188)
Peeles paper reviews and analyzes cultural differences revealing the range of intemperance with respect to alcohol and other drugs of abuse seen across human social, religious, and political groups. His conclusion? A call for values emphasis and moral education that would certainly receive approving nods from William Bennett:
The issue is not only to get through to the large numbers of the young who seem not to be hearing us, but to establish bedrock moral principles for our society. As it is, we seem to be falling further behind in creating a moral environment in which we want to live, and in giving children a set of values that are adequate for such a world. Some of the values we need more of, as outlined in this paper, are values toward health, moderation, and self-control; achievement, work, and constructive activity; larger purposes and goals in life; social consciousness, concern for the community, respect for other people, and mutuality in human relationships; intellectual and self-awareness; and acceptance of personal responsibility for our actions. These are the value choices that confront all of us, and not just drug users. (p. 210)
The monographs cited above all report on the importance of environmental and interpersonal influences (i.e., moral education) on the formation and maintenance of the internalized value systems that drive drug-seeking behaviors. Psycho-social clinical researchers have come a long way from the decades-ago period when moral neutrality seemed to hold sway in applied psychosocial investigation. Yet too many of our leading national morality advocates such as Dr. Bennett continue to reject or ignore these journals as purveyors of pro-drug psychobabble when the works therein actually support many of the traditional family values principles Bennett and his conservative policy kin espouse. Even the hard-line Our-Right-to-Drugs polemicist Thomas Szasz cites the 1791 words of Edmund Burke in the overleaf of his 1985 book Ceremonial Chemistry:
Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love of justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere, and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things, that men of intemperate minds cannot be free. Their passions forge their fetters. [ Szasz, Thomas S., Ceremonial Chemistry: The Ritual Persecution of Drugs, Addicts, and Pushers, (Holmes Beach, FL., Learning Publications, Inc., 1985). ]
A perhaps curious citation, given Dr. Szaszs uncompromising stance concerning what he asserts to be ones inalienable right to self-medicate for whatever reason without the oversight or intervention of what he disapprovingly refers to as the therapeutic state. However, in Ceremonial Chemistry and his later work Our Right to Drugs, Dr. Szasz argues forcefully in favor of personal autonomy and concomitant individual accountability. Echoing a very Aristotelian sentiment in emphatically pointing out that arguing for a right to take drugs is not tantamount to advocacy of self-intoxication, Szasz opines that
Emerson has put it perfectly: We gain the strength of the temptation we resist. By acquiring self-control, man frees himself from the laws of reflexive subjection to needs, pleasures, and temptations. (p. 157)
The refrain of Aristotles Nichomachean Ethics rings clear from these words of Burke, Emerson, And Szasz:
...praise or blame depends on whether or not a man successfully resists compulsion [NE 1110b]...the appetitive element in us must be guided by the bidding of reason. Consequently, the appetitive element of a self-controlled man must be in harmony with the guidance of reason. For the aim of both his appetite and his reason is to do what is noble. The appetite of a self-controlled man is directed at the right objects, in the right way, and at the right time; and this is what reason prescribes. [NE 1119b15]
Perhaps Dr. Bennetts antipathy has something to do with the fact that these types of research findings and moral observations also tend to provide modern empirical and historical philosophical validation for the argument of John Stuart Mill in Chapter IV of his seminal work On LibertyOf The Limits To The Authority Of Society Over The Individual. Mill had scant sympathy for or patience with a political/social order that would readily resort to coercion while failing its offspring in their moral development.
Recall, from Chapter 1 of this thesis and Dan Baums Smoke and Mirrors that, for Dr. Bennett and his colleagues, however, the primacy of Authority over the individual is beyond dispute or diminution.
To which Mill would reply:
...I am the last person to undervalue the self-regarding virtues; they are only second in importance, if even second, to the social. It is equally the business of education to cultivate both. But even education works by conviction and persuasion as well as by compulsion, and it is by the former only that, when the period of education is past, the self-regarding virtues should be inculcated. Human beings owe to each other help to distinguish the better from the worse, and encouragement to choose the former and avoid the latter. They should be forever stimulating each other to increased exercise of their higher faculties, and increased direction of their feelings and aims towards wise instead of foolish, elevating instead of degrading, objects and contemplations. But neither one person, nor any number of persons, is warranted in saying to another human creature of ripe years, that he shall not do with his life for his own benefit what he chooses to do with it. He is the person most interested in his own well-being, the interest which any other person, except in cases of strong personal attachment, can have in it, is trifling, compared with that which he himself has; the interest which society has in him individually (except as to his conduct to others) is fractional, and altogether indirect: while, with respect to his own feelings and circumstances, the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by any one else. The interference of society to overrule his judgment and purposes in what only regards himself, must be grounded on general presumptions; which may be altogether wrong, and even if right, are as likely as not to be misapplied to individual cases, by persons no better acquainted with the circumstances of such cases than those are who look at them merely from with- out. In this department, therefore, of human affairs, Individuality has its proper field of action. In the conduct of human beings towards one another, it is necessary that general rules should for the most part be observed, in order that people may know what they have to expect; but in each person's own concerns, his individual spontaneity is entitled to free exercise. Considerations to aid his judgment, exhortations to strengthen his will, may be offered to him, even obtruded on him, by others; but he, himself, is the final judge. All errors which he is likely to commit against advice and warning, are far outweighed by the evil of allowing others to constrain him to what they deem his good (On Liberty, Chapter IV).
A core question posed in this thesis is whether one should be required to pass a drug screen to obtain and/or retain employment as a general proposition, either through explicit legal enactment or extrajudicially through governmental acquiescence to corporate-institutional policy. The long answer is no. While there are broader suspicionless drug testing issuessuch as mandatory screening in athletic or a variety of custody domains (e.g., parole, probationary, schools, or drug rehab settings), in concluding and summarizing the argument and evidence heretofore presented, I will focus on the employment domain, as it constitutes the bulk of the market for testing services and brings into sharpest focus the ethical problems that attend this form of search and surveillance.
Mass indiscriminate employment drug screening is unwise, unconstitutional, and unethical.
Any morally serious person cannot but desire and work toward a healthy and upright social order. An unrestrained metabolite police, however, will not help us get there, for a truly healthy social order cannot but be one in which civil rights are reciprocally accorded their dueamong them the right of our youth to real moral education rather than moralistic neo-Reefer Madness/ Just-Dont-Do-It platitudes, and also among them the right of adult citizens to not have to symbolically prove their rectitude in deference to clamorem et ethusium machinations or pay with their livelihoods.
Again, as stated at the outset of this investigation, there are ethically appropriate methods available to a society for dealing with risk and loss. It is my contention, however, that indiscriminate drug testing is not among them. The body of this thesis has sustained that claim.