Employee drug testing: A constitutional perspective

The proliferation of employee drug testing by federal and state governments and by private sector employers acting pursuant to governmental directives has led to a steadily growing number of lawsuits raising constitutional challenges to such testing. Most of these cases have been based on the Fourth Amendment's prohibition of unreasonable searches and seizures. In 1989, the Supreme Court addressed the constitutionality of employee drug tests for the first time in two cases,Skinner v. Railway Labor Executives' Ass'n andNational Treasury Employees Union v. Von Raab. Recognizing that urinalysis drug testing constitutes a search for Fourth Amendment purposes, the Court determined the constitutionality of the drug tests by balancing the governmental interest in the testing against the privacy interest of the employees and, in both cases, upheld the drug testing at issue. TheSkinner andVon Raab decisions provided guidelines for analyzing Fourth Amendment challenges to employee drug testing, and the lower courts are now in the process of applying and refining these guidelines. Constitutional challenges to employee drug testing programs have also been based on the due process clause and the equal protection clause of the Fourteenth Amendment and on the First Amendment's guarantee of freedom of religion. Unlike Fourth Amendment claims, however, these claims have rarely been successful.