Articile Crtique

APA format 500 words in length addressing the following items listed. 

Drug Testing and the Right
to Privacy: Arguing the Ethics
of Workplace Drug Testing Michael Cranford

ABSTRAGT. As drug testing has become increasingly
used to maximize corporate profits by minimizing the
economic impact of employee substance abuse,
numerous arguments have been advanced which draw
the ethical justification for such testing into question,
including the position that testing amounts to a
violation of employee privacy by attempting to
regulate an employee’s behavior in her own home,
outside the employer’s legitimate sphere of control.
This article first proposes that an employee’s right to
privacy is violated when personal information is
collected or used by the employer in a way which is
irrelevant to the terms of employment. This article
then argues that drug testing is relevant and there-
fore ethically justified within the terms of the employ-
ment agreement, and therefore does not amount to a
violation of an employee’s right to privacy. Arguments
to the contrary, including the aforementioned appeal
to the employer’s limited sphere of control, do not
account for reasonable constraints on employee
privacy which are intrinsic to the demands of the
workplace and implicit in the terms of the employ-
ment contract.

Drug testing is becoming an increasingly
accepted method for controlling the effects of
substance abuse in the workplace. Since drug
abuse has been correlated with a decline in
corporate profitability and an increase in the
occurrence of work-related accidents, employers
are justifying drug testing on both legal and

Michael Cranford is a Ph.D. candidate in Religion and
Social Ethics, whose research involves the philosophical
interrelationship between various emergent technologies
and their impact on both medical and business ethics,
and on social ethics more broadly. His publications have
appeared in such journals as Technology in Society.

ethical grounds. Recent estimates indicate that
the costs to employers of employee drug abuse
can run as high as $60 billion per year.’
Motorola, before implementing its drug testing
program in 1991, determined that the cost of
drug abuse to the company – in lost time,
impaired productivity, and health-care and
workers compensation claims – amounted to
$190 milhon in 1988, or approximately 40% of
the company’s net profit for that year.^ As these
effects on the workplace are viewed in light of a
much larger social problem – one which impacts
health care and the criminal justice system, and
incites drug-related acts of violence – advocates
of drug testing argue that the workplace is an
effective arena for engaging these broader
concerns. The drug-free workplace is viewed as
causally antecedent and even sufficient to the
development of drug-free communities.

The possibility of using workplace drug
interventions to effect social change may obscure
the more fundamental question of whether or
not drug testing is an ethical means of deter-
mining employee drug abuse. While admitting
that drug testing could mitigate potential harms,
some CEOs have elected not to follow the trend
set by Motorola and an estimated 67% of large
companies,^ and instead argue that drug testing
surpasses the employer’s legitimate sphere of
control by dictating the behavior of employees
on their own time and in the privacy of their
own homes.”* Recent arguments in favor of a
more psychologically-sensitive definition of
employee privacy place employer intrusions into
this intimate sphere of self-disclosure on even less
certain ethical grounds.’ The ethical status of
workplace drug testing can be expressed as a
question of competing interests, between the

Journal of Business Ethics 17: 1805-1815, 1998.
© 1998 Kluwer Academic Publishers. Printed in the Netherlands.

1806 Michael Cranford

employer’s right to use testing to reduce drug-
related harms and maximize profits, over against
the employee’s right to privacy, particularly with
regard to drug use which occurs outside the
workplace.

In this paper I will attempt to bring clarity to
this debate and set the practice of workplace drug
testing on more certain ethical grounds by
advancing an argument which justifies workplace
drug testing. I will begin by showing that an
employee’s right to privacy is violated when
personal information is collected or used by the
employer in away which is irrelevant to the
contractual relationship which exists between
employer and employee. I will then demonstrate
that drug testing is justified within the terms of
the employment contract, and therefore does not
amount to a violation of an employee’s right to
privacy. After responding to a battery of argu-
ments to the contrary, I will propose that while
drug testing can be ethically justified under the
terms of an employment contract, it still amounts
to treating employees as a means to an economic
end, and is therefore fundamentally inconsistent
with a substantive valuation of human worth and
dignity.

Privacy and performance of contract

Legal definitions of privacy inevitably rely on the
1890 Harvard Law Review article “The Right to
Privacy” by Samuel Warren and Louis Brandeis.
This article offered an understanding of privacy
for which a constitutional basis was not recog-
nized until the 1965 case Griswold v. Connecticut
(381 U.S. 479). In both instances, privacy was
understood as an individual’s right “to be let
alone,” with the Griswold decision according
citizens a “zone of privacy” around their persons
which cannot be violated by governmental
intrusion. This definition, utilized by the Court
in numerous decisions since the 1965 ruling, w îll
not be adequate for describing the employee’s
claim to privacy in an essentially social and
cooperative setting like the workplace. In such a
condition an absolute right “to be let alone”
cannot be sustained, and it may well prove
impossible for an employee to maintain a “zone

of privacy” when the terms of employment entail
certain physical demands. This is not to argue
that a right to privacy does not exist in this
setting; rather, we must conclude that the afore-
mentioned conditions are not necessary compo-
nents in such a right.^

A more useful definition begins with the idea
of a person’s right to control information about
herself and the situations over which such a right
may be legitimately extended. For example,
information to the effect that an individual
possesses a rare and debilitating disease is gener-
ally considered private, but a physician’s coming
to know that a patient has such a disease is not
an invasion of privacy. One might also note that
while eavesdropping on a conversation would
normally constitute an invasion of privacy,
coming to know the same information because
the individual inadvertently let it slip in a casual
conversation would not. These and other
examples demonstrate that the right to privacy
is not violated by the mere act of coming to
know something private, but is instead contin-
gent on the relationship between the knower and
the person about whom the information is
known.

George Brenkert formulates this understanding
as follows: Privacy involves a relationship
between a person A, some information X, and
another individual Z. A’s right of privacy is
violated only when Z comes to possess infor-
mation X and no relationship exists between A
and Z that would justify Z’s coming to know X.^
Brenkert notes that what would justify Z coming
to know X is a condition in which knowing X
and having a certain access to A will enable Z
to execute its role in the particular relationship
with A. In such a case, Z is entitled to informa-
tion X, and A’s privacy is in no way violated
by the fact that Z knows. Thus, a physician is
justified in coming to know of a patient’s disease
(say, by running certain diagnostic tests), since
knowing of the disease w îll enable her to give
the patient medical treatment. One cannot be a
physician to another unless one is entitled to
certain information and access to that person.
Conversely, one can yield one’s right to privacy
by disclosing information to another that the
relationship would not normally mandate. To

Drug Testing and the Right to Privacy 1807

maintain a right to privacy in a situation where
another would normally be entitled to the
information to enable them to fulfill the terms
of the relationship is, quite simply, to violate the
terms of the relationship and make fulfillment of
such terms impossible. In the case of our earlier
example, to refuse a physician access to the
relevant points of one’s health status is to make
a physician-patient relationship impossible.
Similarly, to refuse an employer access to infor-
mation regarding one’s capability of fulfilling the
terms of an employment contract is to violate
an employer-employee relationship.

The argument advanced at this point is that
drug testing involves access to and information
about an employee that are justified under the
terms of the implicit contractual agreement
between employer and employee. An employer
is therefore entitled to test employees for drug
use. This statement relies on at least two impor-
tant assumptions. First, a contractual model of
employer-employee relations is assumed over
against a common law, agent-principal model. It
is not the case that employees relinquish all
privacy rights in return for employment, as the
common law relationship may imply, but rather
that the terms of the contract, if it is valid, set
reasonable boundaries for employee privacy
rights consistent with the terms and expectations
of employment. The argument offered here is
that drug testing does not violate those bound-
aries. I am also assuming that drug abuse has a
measurable and significant impact on an
employee’s ability to honor the terms of the
employment contract. Employers are entitled to
know about employee drug abuse on the grounds
that such knowledge is relevant to assessing an
employee’s capability to perform according to the
terms ofthe agreement. Without arguing for the
connection between drug abuse and employee
performance at length, the reader’s attention is
directed to studies which, if not absolutely incon-
testable in their methodology, are nonetheless
reasonably set forth. ̂

In support of this argument, I would first
direct attention to other types of information
about an employee that an employer is entitled
to know, and in coming to know such informa-
tion does not violate the employee’s privacy.

Employers are entitled to information about a
current or prospective employee’s work experi-
ence, education, and job skills – in short,
information relevant for determining whether or
not the employee is capable of fulfilling her part
of the contract. More criticaUy, the employer is
not only entitled to such information, but is
entitled to obtain such information through an
investigatory process, both to confirm informa-
tion the employee has voluntarily yielded about
her qualifications, as well as to obtain such
relevant information as may be lacking (i.e.,
inadvertently omitted or, perhaps, intentionally
withheld).

Brenkert further adds that an employer is
entitled to information which relates to elements
of one’s social and moral character:

A person must be able not simply to perform a
certain activity, or provide a service, but he must
also be able to do it in an acceptable manner – i.e.,
in a manner which is approximately as efficient as
others, in an honest manner, and in a manner com-
patible with others who seek to provide the
services for which they were hired.’

Again, the employer is entitled to know, in the
case of potential employees, if they are capable
of fulfilling their part ofthe contract, and, in the
case of existing employees, if they are adhering
to the terms and expectations implicit in the
contract. While this latter case can often be con-
firmed by direct observation of the employee’s
actions at the work site, on occasion the
employer is entitled to information regarding
behavior which can be observed at the workplace
but originates from outside of it (such as arriving
at work late, or consuming large quantities of
alcohol prior to arriving). As all of these actions
may be in violation of the term of employment,
the employer is entitled to know of them, and
in coming to know of them does not violate the
employee’s privacy.

My point in offering these examples is to
suggest that drug testing is a method of coming
to know about an employee’s ability to fulfill the
terms of contract which is analogous to those
listed. An exploratory process, in seeking to
verify an employee’s ability to do a certain job
in connection with reasonable expectations for

1808 Michael Cranford

what that job entails, may also validly discover
characteristics or tendencies that would keep the
employee from performing to reasonable expec-
tations. Drug testing is precisely this sort of
process. As a part of the process of reviewing
employee performance to determine whether or
not they are fulfilling the terms and expectations
of employment satisfactorily, drug testing may be
validly included among other types of investiga-
tory methods, including interviews with co-
workers, skills and proficiency testing, and (in
some professions) medical examinations. The fact
that an employee may not want to submit to a
drug test is entirely beside the point; the
employee may just as likely prefer not to include
a complete list of personal references, or prefer
that the employer not review her relations with
other employees. In all these cases, the employer
is entitled to know the relevant information, and
in coming to know these things does not violate
the employee’s privacy. The employee may
withhold this information from the employer, but
this action is tantamount to ending the employer-
employee relationship. Such a relationship, under
the terms of employment, includes not only each
party’s commitment to benefit the other in the
specific way indicated, but also entitles each to
determine if the other is capable of performance
according to the terms of contract. In this way,
each retains the free ability to terminate the rela-
tionship on the grounds of the other’s nonper-
formance.

Of course, not just any purpose of obtaining
information relevant to evaluating performance
under the terms of contract can automatically be
considered reasonable. For instance, an employer
cannot spy on a prospective employee in her own
home to determine if she will be a capable
employee. I offer the following criteria as setting
reasonable and ethical limits on obtaining
relevant information (though note that the
requirement of relevancy is in each case already
assumed).

1. The process whereby an employer comes to know
something ahout an employee (existing or
prospective) must not be unnecessarily harmful or
intrusive

The information may not result from investiga-
tory processes v^hich are themselves degrading or
humiliating by virtue of their intrusiveness (e.g.,
strip searches, spying on an employee while they
use the bathroom, interviewing a divorced
spouse, or searching an employee’s locker) or
which may prove unhealthy (e.g., excessive use
of x-rays, or torture). (Note: Degrading processes
of securing information must be distinguished
from processes of securing information which is
itself degrading. The latter is not necessarily in
violation of this or successive criteria.)

2. The process whereby an employer comes to know
something about an employee must he efficient
and specific

The information must result from an efficient and
specific process – i.e., a process which is the most
direct of competing methods (though without
compromising point 1 above), and should result
in information which corresponds to questions
of performance under the terms of the employ-
ment contract, and should not result in infor-
mation that does not so correspond. For example,
detailed credit checks may help a bank decide
whether a prospective employee is a capable
manager of finances, but not directly (only
inferentially), and it would also provide a great
deal of information that the employer is not
entitled to see. Consulting the employee’s
previous employer, on the other hand, may
provide the relevant information directly and
specifically.

3. The process whereby an employer comes to know
something ahout an employee must be accurate,
or if not itself precise, then capable of
confirmation through further investigation

The information must result from a dependable
source; if a source is not dependable and is

Drug Testing and the Right to Privacy 1809

incapable of being verified for accuracy, the
employer is not justified in pursuing this avenue
of discovery. Thus, the polygraph must be
excluded, since it is occasionally inaccurate and
may in such cases result in information that
cannot be verified. In addition, disreputable
sources of information, or sources that may have
an interest in misrepresenting the information
being sought, should not be used.

Having outlined these, I offer my argument
in full: Drug testing is not only a method of
coming to know^ about an employee’s ability to
fulfill the terms of contract which is analogous
to those listed earlier, but which also is reason-
able under the criteria listed above.

1. Drug testing is not harmful or intrusive

In the Supreme Court case Samuel K. Skinner v.
Railway Labor Executives’ Association (489 U.S.
602), the Court determined that both blood and
urine tests were minimally intrusive.’° While the
Court acknowledged that the act of passing urine
was itself intensely personal (ibid., p. 617),
obtaining a urine sample in a medical environ-
ment and without the use of direct observation
amounted to no more than a minimal intrusion
(ibid., p. 626). The Court justified not only
testing of urine but also testing of blood by
focusing on the procedure of testing (i.e.,
“experience . . . teaches that the quantity of
blood extracted is minimal,” ibid., p. 625) and
pointing out that since such tests are “common-
place and routine in everyday life,” the tests posed
“virtually no risk, trauma, or pain” (ibid., p.
625). The Court’s findings on this case are com-
pelling, and are consistent with my contention
that drug testing is not unnecessarily harmful or
intrusive. While such testing does amount to an
imposition upon an employee (i.e., by requiring
her to report to a physician and provide a urine
sample) in a way that may not be commonplace
for many employees, the Court ruled that since
this takes place within an employment context
(where limitations of movement are assumed),
this interference is justifiable and does not unnec-
essarily infringe on privacy interests (ibid., pp.
624-625).

2. Drug testing is both efficient and specific

In fact, drug testing is the most efficient means
of discovering employee drug abuse. In addition
to providing direct access to the information
in question, the results of drug testing do not
include information that is irrelevant. The test
targets a specific set of illegal substances. It can
be argued (and has been) that drug testing is not
efficient because it does not test for impairment
– only for drug use. But this point ignores the
fact that the test is justified on a correlation
between drug abuse and employee productivity
more generally; impairment is itself difficult or
impossible to measure, since the effects of a given
quantity of substance vary from individual to
individual and from one incidence of use to
another. The fact that impairment is an elusive
quantity cannot diminish the validity of testing
for drug abuse. This criticism also ignores the fact
that the test is an effective means of deterring
impairment, providing habitual users a certain
expectation that their drug use will be discov-
ered if it is not controlled.

3. Drug testing can be conducted in a way which
guarantees a high degree of precision

It is well known that the standard (and relatively
inexpensive) EMIT test has a measurable chance
of falsely indicating drug use, and is also suscep-
tible to cross-reactivity with other legal sub-
stances. But confirmatory testing, such as that
performed using gas chromatography/mass
spectrometry, can provide results at a high level
of accuracy. This confirmatory testing, as well as
a host of other stringent safeguards, is required
of all laboratories certified by the National
Institute on Drug Abuse.”

In summary, my contention is that an
employer is entitled to drug test on the grounds
that the information derived is relevant to
confirm the employee’s capacity to perform
according to the terms of employment, and that
such testing is a reasonable means of coming to
know such information. Other points in favor
of drug testing, which are not essential to my
preceding argument but congruent with it,
include the following two items.

1810 Michael Cranford

First, drug testing is an opportunity for
employer beneficence. Testing permits the
employer to diagnose poor employee perfor-
mance and require such individuals to participate
in employer-sponsored counseling and rehabili-
tative measures. Employers are permitted to
recognize that drug abuse is a disease w îth a broad
social impact that is not addressed if employees
who perform poorly as a result of drug abuse are
merely terminated.’^ Second, a specific diagnosis
of drug abuse in the case of poor employee
performance might protect the employer from
wrongful termination litigation, in the event that
an employee refuses to seek help regarding their
abuse. The results of drug testing might confirm
to the court that the termination was effected on
substantive and not arbitrary grounds.

Drug testing and questions of justification

A number of arguments have been offered which
suggest that drug testing is not justified under
terms of contract, or is not a reasonable method
by which an employer may come to know of
employee drug abuse, and therefore amounts to
a violation of employee privacy. These arguments
include a rejection of productivity as a justifica-
tion for testing, charges that testing is coercive,
and that it amounts to an abuse of employee
privacy by controlling behavior conducted
outside the workplace. I will respond to each of
these in turn.

First, some have charged that arguing from an
employer’s right to maximize productivity to a
justification for drug testing is problematic.
Desjardins and Duska point out that employers
have a valid claim on some level of employee
performance, such that a failure to perform to
this level would give the employer a justification
for firing or finding fault with the employee. But
it is not clear that an employer has a valid claim
on an optimal level of employee performance,
and that is what drug testing is directed at
achieving. As long as drug abuse does not reduce
an employee’s performance beyond a reasonable
level, an employer cannot claim a right to the
highest level of performance of which an
employee is capable.”’

Desjardins and Duska further point out the
elusiveness of an optimal level of performance.
Some employees perform below the norm in an
unimpaired state, and other employees might
conceivably perform above the norm in an
impaired state. “If the relevant consideration is
whether the employee is producing as expected
(according to the normal demands ofthe position
and contract) not whether he/she is producing
as much as possible, then knowledge of drug use
is irrelevant or unnecessary.”‘”* This is because the
issue in question is not drug use per se, but
employee productivity. Since drug use need not
correlate to expectations for a given employee’s
productivity, testing for drug use is irrelevant.
And since it is irrelevant to fulfillment of the
employment contract, testing for drugs is unjus-
tified and therefore stands in violation of an
employee’s privacy.

While I agree that it is problematic to state
that an employer has a right to expect an optimal
level of performance from an employee, I would
argue that the employer does have a right to a
workplace free from the deleterious effects of
employee drug abuse.’^ Drug testing, properly
understood, is not directed at effecting optimal
performance, but rather performance which is
free from the effects of drug abuse. Since the
assessment which justifies drug testing is not
based on the impact of drug abuse on a given
employee’s performance, but is correlated on the
effects of drug abuse on workplace productivity
more generally, drug testing does measure a
relevant quantity.

It is also overly simplistic to state that
employers need not test for drugs when they can
terminate employees on the mere basis of a
failure to perform. Employers are willing to
tolerate temporary factors which may detract
from employee performance; e.g., a death in the
family, sickness, or occasional loss of sleep. But
employers have a right to distinguish these self-
correcting factors from factors which may be
habitual, ongoing, and increasingly detrimental
to productivity, such as drug abuse. Such insight
might dramatically impact their course of action
with regard to how they address the employee’s
failure to perform. It is therefore not the case,
as Desjardins and Duska suggest, that “knowl-

Drug Testing and the Right to Privacy 1811

edge of the cause of the failure to perform is
irrelevant.'”^

A more critical series of arguments against
basing drug testing on an employer’s right to
maximize productivity has been leveled by
Nicholas Caste. First, Caste attacks what he
identifies as “the productivity argument”:

The productivity argument essentially states that
since the employer has purchased the employee’s
time, the employer has a proprietary right to ensure
that the time purchased is used as efficiently as
possible. . . . 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 ofthe employer.”

From this argument. Caste states, one can infer
that any manipulation is acceptable as long as it
is maximizing productivity, and he defines
manipulation as an attempt to produce a response
without regard for that individual’s good, as he
or she perceives it.’^ Caste goes on to give two
examples of hypothetical drugs which, assuming
the productivity argument, an employer would
be justified in requiring employees to take. The
first drug increases employee productivity while
also increasing pleasure and job satisfaction. The
second drug increases productivity while
infiicting painful side-effects on the employee.
The fact that the productivity argument appears
to sanction the use of both drugs, and in fact
cannot morally distinguish between them, seems
to argue for its invalidity. Since the productivity
argument cannot distinguish between causing an
employee pleasure or pain, by adopting its logic
one would be forced to the morally unacceptable
conclusion that an employee’s best interests are
irrelevant.

Caste points out that what is wrong with the
second drug is not that it causes pain “but that
it is manipulatively intrusive. It establishes areas
of control to which the employer has no right.””
He concludes that what is wrong with the pro-
ductivity argument is that it is manipulative. And
what is wrong with manipulation is not the
effects it produces (which may, coincidentally, be

in the subject’s best interests) but rather that it
undermines the subject’s autonomy by not
allowing their desires to be factored into the
decision making process.^” Since drug testing is
justified by appeal to productivity arguments, it
also is fundamentally manipulative and results in
a morally unacceptable degree of employee
control. Drug testing is therefore unethical, and
should be rejected.

One could point out that our system of
modern law regulates behavior in a way that
would also have to be considered manipulative,
according to Caste’s definition, but he avoids this
counterexample by stating that in a democratic
system, citizens have a chance to participate in
the legislative process. Since their desires par-
ticipate through the election of representatives
who make the laws. Caste argues that our legal
system does not destroy autonomy the way
mandatory drug testing does, by dictating
behavior without any room for autonomy.^’
Before I address the critical oversight here, I
should point out that one might rescue drug
testing from the charge of being manipulative by
using the same argument that Caste did to rescue
our legal system. One can exercise the same
degree of autonomy with respect to drug testing
legislation as one currently does with legislation
generally by participating in our electoral system.
Since employees have an ability to elect repre-
sentatives who can limit the use of drug testing,
one could argue that drug testing also “does not
destroy the individual’s autonomy in that he or
she retains the capability of input into the
governing process.”^^ In point of fact, individual
autonomy is limited in both cases, as it must
necessarily be in any contractual obligation,
making any expressed distinction here trivial.

The failure of Caste’s argument becomes clear
when we realize that, if he is correct, virtually
every action required of an employee at a work
site would qualify as manipulative – whether the
action in question was in her best interests or not,
and whether or not she desired to comply, since
Caste defines manipulation as a function of
restricting autonomy. Dress codes, starting times,
and basic performance expectations all may be
similarly justified by appeal to the productivity
argument – but most of us are not prepared to

1812 Michael Cranford

count these things as manipulative or unjustified.
Requirements of this sort are not instances of
manipulation, but are justified expectations
which honor a contractual agreement. Similarly,
an employee who demands a paycheck of her
employer is engaging in manipulation, according
to Caste’s definition – but this cannot be correct.
In the contract, each party is apprised that the
other has a right to benefit from the arrange-
ment, and each has a commensurate responsi-
bihty to uphold their part. Accountabihty to the
terms ofthe contract does not amount to manip-
ulation when the accountability in question is
reasonable. In agreement with Caste’s original
criticism, it is not true that an employer has a
right to ensure maximal productivity. But an
employer does have the right to hold an
employee accountable to the terms of the
contract, which express reasonable expectations
of productivity. From this it cannot be inferred,
however, that just any activity to maximize (or
even minimally ensure) productivity is justifiable,
since the contractual model expressly allows that
the employee has certain morally justified claims
that cannot be bargained away in return for
employment. Since the productivity argument, as
Caste depicts it, is in fact not a justification for
drug testing under a contractual model, it is not
the case that drug testing must be rejected.

In a similar vein, some argue that any testing
which involves coercion is inherently an invasion
of employee privacy. Placing employees in a
position where they must choose between
maintaining their privacy or losing their jobs is
fundamentally coercive. “For most employees,
being given the choice between submitting to a
drug test and risking one’s job by refusing an
employer’s request is not much of a decision at
aU.”̂ ^ While Brenkert’s arguments against the use
of the polygraph are directed at that device’s
inability to distinguish the reason behind a
positive reading (which may not, in many
instances, indicate an intentional lie), his
argument that the polygraph is coercive is per-
tinent to the question of drug testing as well.

Brenkert notes that if an employee

. . . did not take the test and cooperate during the
test, his application for employment would either

not be considered at all or would be considered
to have a significant negative aspect to it. This is
surely a more subtle form of coercion. And if this
be the case, then one cannot say that the person
has willingly allowed his reactions to the questions
to be monitored. He has consented to do so, but
he has consented under coercion. Had he a truly
free choice, he would not have done so.̂ “*

Brenkert’s point is surprising, in that his own
understanding is that A’s privacy is limited by
what Z is entitled to know in order to execu-
tive its role with respect to A. If Z (here, the
corporation) is entitled to know X (whether or
not the employee abuses drugs) in order to
determine if A (the employee) is capable of
performing according to the terms of employ-
ment, then the employee has no right to privacy
with respect to the information in question.
While this does not authorize the corporation
to obtain the information in just any manner,
the mere fact that the employee would prefer that
the employer not know cannot be sufficient
to constitute a right to privacy in the face of
the employer’s legitimate entitlement. The
employee can freely choose to withhold the
information, but this is not so much invoking a
right to privacy as it is rejecting the terms of
contract.

If Brenkert’s criticism of employer testing were
valid, then potentially all demands made by the
employer on the employee – from providing
background information to arriving at work on
time – would count as coercive, since in every
case where the employee consents to the demand
there is a strong possibility that she would not
have consented if she was offered a truly free
choice. But these demands are reasonable, and
the employer is entitled to demand them under
the terms of employment, just as the employee
is entitled to profit by acceding to such demands.

The final argument considered here is the
charge that drug testing is an attempt to “control
the employee’s actions in a time that has not
actually been purchased.”^^ Even if we assume
that an employer has the right to maximize prof-
itability by controlling the employee’s behavior
during normal work hours, the employer has no
right to control what an employee does in her
free time. To attempt to do so is a violation of

Drug Testing and the Right to Privacy 1813

employee rights. This argument also falls flat,
however, when we realize that the demands of a
standard employment contract inherently place
limitations on an employee’s free time. In a sense,
the employment contract demands priority,
requiring the employee to organize her free time
around her employment schedule in a way that
permits her to honor the contractual obligation.
For instance, time travehng to and from work
occurs during an employee’s “free time,” and is
dependent on the employee’s own personal
resources, but is rightfully assumed within the
terms of the contract. Time and money spent
shopping for work attire also falls outside the
normal time of employment, but is essential for
honoring a mandatory dress code. These are not
normally considered violations of an employee’s
private life, or unethical “controls” placed on an
employee by an employer, but are justified, again,
under the terms of contract. Drug testing is
justified similarly.

Reservations and policy recommendations

At least one troubling aspect of drug testing
remains to be considered prior to recommenda-
tions on policy, and that is the ethics of profit
maximization as a justification for including
employee testing under the terms of an employ-
ment agreement. As Caste correctly observed,
the fact that drug testing may be in the best
interests of employees is ancillary to the
employer’s productivity goals.^* While drug
testing may turn out to further the interests of
employees by forcing them to confront self-
destructive behavior, this correlation between
employee’s interests and the financial goals ofthe
corporation is merely fortuitous. If drug testing
were not perceived as being in the best interests
of the company from a financial point of view,
then drug testing would not be the issue it is
today.

In counterpoint, one could argue that the
financial status of the company is inherently
intertwined with the good of employees; as the
corporation becomes increasingly profitable,
employees are increasingly benefited. One might
even argue that, in light of such a framework.

profit maximization is central to society and
therefore inherently consistent with its values.^^
This model is overly simplified, however; we can
easily envision a situation where a corporation,
attempting to maximize its profits, does so in a
way that is inconsistent with a substantive social
ethic but is not otherwise limited by market
values. Appealing to profit maximization as a
social ethic does not alleviate these tensions.

It is the position adopted in this article that a
corporation is entitled to drug test its employees
to determine employee capacity to perform
according to the terms of the employment
contract. That drug testing is not, however, in
the large majority of cases, directed at maxi-
mizing the employee’s best interests, suggests that
employers should avail themselves of their right
to drug test within reasonable limits. In light of
this conclusion, the following policy recom-
mendations are directed at employers, with the
goal of balancing the employer’s right to drug test
with a more substantive regard for the dignity
and privacy of employees.

1. Testing should focus on a specifically targeted
group of employees

In the case of employers who are testing without
regard for questions of safety, I would strongly
urge that testing only be done when probable
cause exists to suspect that an employee is using
controlled substances. Probable cause might
include uncharacteristic behavior, obvious symp-
toms of impairment, or a significantly diminished
capacity to perform their duties. Utilizing
probable cause minimizes the intrusive aspect of
testing by yielding a higher percentage of test-
positives (i.e., requiring probable cause before
testing will inherently screen out the large
majority of negatives). Even with this stipulation,
a drug program may provide a reasonable deter-
rence factor at the workplace.

It should be noted that this qualification does
not apply in cases of job applicants. Employers
who insist on testing potential employees will
typically do so under a general suspicion of drug
use, and may in that cause assume a condition
of probable cause.

1814 Michael Cranford

2. When testing is indicated, it should not be
announced ahead of time

Regularly scheduled testing runs the risk of
losing its effectiveness by providing an employee
sufficient time to contrive a method of falsifying
the sample. Drug testing, if it is to be used at
all, should be used in a way which maximizes
its effectiveness and accuracy.

3. Employees who test positive for drug abuse
should be permitted the opportunity to resolve
their abusive tendencies and return to work
without penalty or stigma

Employees should only be terminated for an
inability to resolve their abuse, once early detec-
tion and substantial warning have been made.
Employers can mitigate the dehumanizing aspect
of this technology by using it as an opportunity
to assist abusive employees with their problems,
and permitting them to return to their old
positions if they can remedy their habitual ten-
dencies. Toxicological testing should therefore
be accompanied by a full range of employee
assistance interventions.

Acknowledgements

I would like to thank Prof Bill May at the
University of Southern Cahfornia and the anony-
mous second reader for their suggestions and
detailed criticism in regard to the points raised
in this paper (without implicating either of them
in the position adopted herein).

Notes

‘ According to SAMHSA (Substance Abuse and
Mental Health Services Administration), cited in Ira
A. Lipman, ‘Drug Testing is Vital in the Workplace’,
U.S.A. Today Magazine 123 (January 1995), 81.
^ Dawn Gunsch, ‘Training Prepares Workers for
Drug Testing’, Personnel Journal 72 (May 1993), 52.
‘ According to the U.S. Bureau of Labor Statistics,
cited in R o b Brookler, ‘Industry Standards in
Workplace Drug Testing’, Personnel Journal 71 (April
1992), 128.

* See Lewis L. Maltby, ‘Why Drug Testing is a Bad
Idea’, Inc., Qune 1987), 152.
^ O n this point see Michele Simms, ‘Defining
Privacy in Employee Health Screening Cases: Ethical
Ramifications Concerning the Employee/Employer
Relationship’, Journal of Business Ethics 13 (1994),
315-325.
^ Desjardins further argues that these conditions are
not sufficient to constitute a right to privacy. In the
example of subliminal advertising, if it was effective,
one’s right “to be let alone” would be violated, but
without any clear violation of one’s privacy (Joseph
R. Desjardins, ‘An Employee’s Right to Privacy’, in
J. R. Desjardins a n d j . J. McCall (eds.). Contemporary
Issues in Business Ethics [Wadsworth, Belmont, CA,
1985], p. 222).
^ George G. Brenkert, ‘Privacy, Polygraphs, and
Work’, Business and Professional Ethics Journal 1 (1981),
23. In agreement see Desjardins, ‘An Employee’s
Right to Privacy’, p. 222; Joseph Desjardins and
Ronald Duska, ‘Drug Testing in Employment’,
Business aand Professional Ethics Journal 6 (1987), 3—4.
* See for example U.S. Department of Health and
Human Services, Drugs in the Workplace: Research and
Evaluation Data, ed. S. W. Gust and J. M. Walsh
(National Institute on Drug Abuse Monograph 91,
1989), and National Research Council/Institute of
Medicine, Under the Influence? Drugs and the American
Work Force, ed. J. Normand, R. O. Lempert and C.
P. O’Brien (Committee on Drug Use in the
Workplace, 1994). For example, a prospective study
of preemployment drug testing in the U.S. Postal
Service showed after 1.3 years of employment that
employees who had tested positive for illicit drug use
at the time they were hired were 60% more likely to
be absent from work than employees who tested
negative {Drugs in the Workplace, pp. 128—132; Under
the Influence, p. 134).
‘ Brenkert, ‘Privacy, Polygraphs, and Work’, 25.
‘” While the legal opinion itself only summarizes and
does not in and of itself justify a moral argument, it
does in this case demonstrate a broad consensus and
both rational and intuitive appeals to the matter at
hand.
” See Brookler, “Industry Standards in Workplace
Drug Testing,” 129.
‘̂ Contra Desjardins and Duska, who state, “Of
course, if the employer suspects drug use or abuse as
the cause of the unsatisfactory performance, then she
might choose to help the person with counseling or
rehabilitation. However, this does not seem to be
something morally required of the employer. Rather,
in the case of unsatisfactory performance, the

Drug Testing and the Right to Privacy 1815

employer has a prima facie justification for dismissing
or discipling the employee” (‘Drug Testing in
Employment’, 6—7).
‘”̂ Desjardins and Duska, ‘Drug Testing in
Employment’, 5.
‘” Ibid., 6.
‘̂ Implicit in this statement is the assumption that
employees do not have an absolute right to abuse
drugs. This is a point I am neither able (for lack of
space) nor interested in taking up at this point, but
would instead appeal to a broad societal consensus
on drug abuse, legislation against the use of illicit
substances (and abuse of legal substances), and various
negative social correlates to drug use. Thus, I am
convinced that drug abuse can be distinguished from
other legitimate (but potentially deleterious) behav-
iors, such as poor dietary habits.
“• Ibid.

” Nicholas J. Caste, ‘Drug Testing and Productivity’,
Journal of Business Ethics 11 (1992), 301.
•’ Ibid., 302.
” Ibid., 303.
^° As a side note, I should point out that Caste has
gone wrong in assessing his own definition of manip-
ulation (understood as an attempt to produce a
response without regard for that individual’s good, as
they perceived it). What is wrong with manipulation
is not that it undermines autonomy, since under-
mining autonomy is neither a necessary nor a suffi-
cient component in manipulation as he defines it (i.e.,
I can undermine your autonomy in a way which is
in complete accord with your good as you perceive

it, and this would not qualify as manipulation). If the
subject willingly embraces the act in question, and is
in complete agreement with a policy mandating the
action, it would still be manipulative under Caste’s
definition, since manipulation turns not on the effect,
nor on the victim’s will, but on the motivation of
the agent behind the act.
‘̂ Ibid., 302.

” Ibid.
” Desjardins and Duska, ‘Drug Testing in
Employment’, 16—17. This is also implied in
Desjardins, ‘An Employee’s Right to Privacy’, p. 226,
but in neither case is the argument fully developed.
^̂ Brenkert, ‘Privacy, Polygraphs, and Work’, 28-29.
^̂ Caste, ‘Drug Testing and Productivity’, 303. See
also Maitby, ‘Why Drug Testing is a Bad Idea’, 152.
*̂ Caste, ‘Drug Testing and Productivity’, 302. Caste

goes too far when he attributes to corporations
following the productivity argument an ‘absence of
concern for the individual employee’ (p. 303), but I
am in agreement that employer beneficence is, in the
case of drug testing, at best an afterthought.
” See Patrick Primeaux and John Stieber, ‘Profit
Maximization: The Ethical Mandate of Business’,
Journal of Business Ethics 13 (1994), 287-294.

University of Southern California,
Department of Religion/Social Ethics,

Los Angeles, CA 90007,
U.S.A.

E-mail: mcranfor@usc.edu