In S. Luper-Foy C. Brown (ed.), Drugs, Morality, and the Law. Garland (1994)

Hugh LaFollette
University of South Florida St. Petersburg
By some estimates one-third of American corporations now require their employees to be tested for drug u se. The se requ iremen ts are com patible with general employment law while prom oting the public's in terest in figh ting drug use. Mo reover , the Unite d State s Supreme Court has ruled that drug tes ting prog rams a re cons titutionally p ermiss ible within both the public and the private sectors. It appears m andatory drug tes ting is a permanent fixture of American corporate life. (Bakaly, C. G., Grossman, J. M. 1989) The legal roots of m anda tory drug testing are found in the com mon la w doctrin e of "employment at will." That doctrine states that either party to an employment contract can termina te the contract for any reason, at any time, unless the contract specifies otherwise. As the Court h eld in Adair v. United States (208 U.S. 161, 175-6, 1908), the employer "was at liberty, in his d iscretion , to discha rge [the e mploy ee] from service w ithout givin g any reason for so do ing." In unqualified form, this doctrine would give employers effective control over employees. Employers could establish any requirements they wished for prospective and current employees. Not only could they decline to hire employees who will refuse drug tests, they could likewise decline to hire people with characteristics, beliefs, or behavior they dislike. Employees must endure these requirements or seek emplo yment elsewhere. However, since m ost peo ple hav e limited job opp ortunities , they will be forced to "a ccept" these require ments , no ma tter how objection able. Courts and legislatures have since recognized the abuses this 283 284 Drugs, Morality, and the Law..
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