| Abstract: | This article chronicles the trend in private sector drug testing litigation from 1984 to 1994, details the legal theories that employees have used to challenge employer drug testing policies, and reports the success of these challenges. A search of the Westlaw data base uncovered 140 private sector drug testing cases disposed by the federal and state courts over this period. An analysis of these cases indicates that drug testing litigation accelerated rapidly in the late 1980s and then plateaued in the 1990s, that grounds for lawsuits are numerous, and that the percentage of cases won by employees is currently as high as it has ever been. Accordingly, in recognition of the nature and scope of the risk involved in employee drug screening, the prudent human resource manager should continue to exercise caution in drug testing policy design, implementation, and administration. |
