Amicus Curiae Brief — Skinner v. Railway Labor Executives' Assn.

SUnI555—

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

JAMES H. BURNLEY IV, SECRETARY, DEPARTMENT OF

TRANSPORTATION, et al.,

Petitioners,

V.

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, et al.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF THE AMICUS CURIAE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF THE PETITIONERS

ROBERT E. WILLIAMS

DOUGLAS S. MCDOWELL

STEPHEN C. YOHAY

GAREN E. DODGE *

McGUINESS & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment

Advisory Council

* Counsel of Record

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

gE ce i

TD UT SPIED rccsecscrccsnnnesccesssrnncesnssomsenees ii

INTEREST OF THE AMICUS CURIAE ........00........ 1

STATEMENT OF THE CASE.....W000000222........eeeeeee eee 5

SUMMARY OF ARGUMENT ........................................- 8

IE a cacsh ahhh idelehdecittnehairisitinbeiolocispeieeideiicietoe 10

POST-ACCIDENT DRUG TESTING BY AN EM-

PLOYER IN A SAFETY SENSITIVE INDUSTRY

NEED NOT BE PRECEDED BY INDIVID-

UALIZED SUSPICION OF EACH EMPLOYEE

TESTED IN ORDER TO BE “REASONABLE”

WITHIN THE MEANING OF THE FOURTH

IIE sterasennneemsosessivirascnieniioneanininninianaiininmianeseen 10

I. To Be Lawful Under The Fourth Amendment,

An Employer’s Program Need Only Be Reason-

able At Its Inception And In Its Scope -............... 10

II. Because Of The Strong Safety Concerns Present

In Some Occupations—Like The Railroad Indus-

try—It Can Be “Reasonable At Inception” For

An Employer To Institute A Post-Accident

Drug Test Without Having Individualized

STII sicsiehi si tcoacanceabnaidhapebcsbeeaneieatieaiemanetinnlnatiaiincades 11

III. Because The FRA’s Rules Are Reasonably Re-

lated To Their Objectives, And Not Excessively

Intrusive, They Are “Reasonable In Scope’’........ 19

IIT <cisnescaneisststsinscciatnnacsppinaintctiindadabiadenintiusatscmtianesemnen 23

il

TABLE OF AUTHORITIES

Cases: Page

Allen v. City of Marietta, 601 F. Supp. 482 (N.D.

Ga. 1985) .. a 16

American Federation of Government Employees v v.

Dole, 670 F. Supp. 445 (D.D.C. 1987) -.........--.--- 19

Bell v. Wolfish, 441 U.S. 520 (1979) -........--------------- 19

Brotherhood of Locomotive Engineers v. Burling-

ton Northern Railroad Co., 838 F.2d 1087, cert.

filed (No. 87-1631) (April 1, 1988) -..........-.-.------ passim

Camara v. Municipal Court, 387 U.S. 523 (1967)... 10

Connecticut v. Teal, 457 U.S. 440 (1982) -............---- 5

Division 241 Amalgamated Transit Union v. Suscy,

538 F.2d 1261 (7th Cir.), cert. denied, 429 US.

1029 (1976) 9,15

Jones v. McKenzie, 835 F 243 35 (D.C. Cir. 1988),

cert. filed (No. 87-1706) (April 15, 1988) -........ 9,16

Lovvorn v. City of Chattanooga, 46 EPD * 37%, 972

(Gth Cir. 1988) ...........--------------c--e+--s-ecenesnnnsnnsnnsnnenes 18

McDonell v. Hunter, 809 F.2d 1302 (8th Cir.

BOBT) ......---00.---c-.c0nsoseressoresncessne-neneenns een 17

Mullholland v. Department of the Army, 660 F.

Supp. 1565 (E.D. Va. 1987) ..............--.--------- 20

National Ass’n of Air Traffic Specialists v. Dole,

No. A97-073, unpublished slip op. (D.C. Alaska,

March 27, 1987) -_........---.-- 18

National Treasury Employees Union + v. . Von ‘Raab,

619 F. Supp. 380 (E.D. La. 1986), rev'd, 816

F.2d 170 (5th Cir. 1987), petition for cert.

granted, Feb. 29, 1988 —nnarinusasistcinaiscan ania

New Jersey v. T.L.O., 469 U.S. 325 (1985) -........... 9, 15, 19

O’Connor v. Ortega, 107 S.Ct. 1492 (1987) -.......... passim

Rushton v. Nebraska Public Power District, 844

F.2d 562 (8th Cir. 1988) . 18

School Beard of Nassau County ' v. “Arline, “107

S. Ct. 1123 (1987) sacunacendeennsentesiiiiantilaaaaaa 5

Shell Oil Co. v. Oil, Chemical and Atomie Workers,

84 LA 562 (BNA) (1985) ........--..----<<----<<<0---<---- 3

Texas Utilities Generating Co., 82 LA 6 (BNA)

(1983) —naacesseeanceauuselssunsiensanaeaeaa 3

iii

TABLE OF AUTHORITIES—Continued

Page

United States v. Place, 462 U.S. 696 (19835) ........ 2 10

Watson v. Fort Worth Bank & Trust, S. Ct.

gS 5

Constitution and Federal Statutes:

EE ee passim

National Labor Relations Act, 29 U. S.C. $141 et

Ce cemmicsnscssancesansvocccoscsces 3

Railway Labor Act, 45 U.S.C. g 151 et seq. (1982).. 3

Federal Regulations:

Teen ene eee ens aewonsdcccncceces 5

49 C.F.R. § 219.101 LO 22

48 Fed. Reg. 30724 (1983) ....................--............ ae

49 Fed. Reg. 24253-1 (June 12, 1984) ....00.. = 6, 18

53 Fed. Reg. 8368 (March 14, 1988) _................ ik ae

State Statutes:

Conn. Pub. Act No. 87-551 (1987) .........00.0000000...... 8,19

Iowa Code § 730.5 (1987)... ee. i Ata 3

LL ES - 3

Minn. Stat. § 181-950 et seq. (1987) 3, 19

Mont. Code § 39-2-304 (1987) ................ 3, 19

SS 3

Federal Legislative and Administrative Proposals:

H.R. 4567, 160th Cong., 2d Sess. (1988)... 4

H.R. 1717, 100th Cong., 2d Sess. (1988). 4

Federal Aviation Administration Notice of Pro-

posed Rulemaking, 53 Fed. Reg. 8368 (March

SE a |

Miscellaneous:

National Institute on Drug Abuse, Hichlights of

the 1985 National Household Survey on Drug

Ne sc aneonsecwes 14

Walsh, J. Michael, and Yohay, Stephen C., Drug

and Alcohol Abuse: A Guide to the Issues (Na-

tional Foundation for the Study of Equal Em-

ployment Policy (1987) — ........ » aa

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 86-1555

JAMES H. BURNLEY IV, SECRETARY, DEPARTMENT OF

TRANSPORTATION, et al.,

Petitioners,

v.

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, et al.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF THE AMICUS CURIAE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF THE PETITIONERS

The Equal Employment Advisory Council (EEAC

or Council) respectfully submits this brief as amicus

curiae in support of the Petitioners. The parties’

written consents have been filed with the Clerk of

this Court.

INTEREST OF THE AMICUS CURIAE

EEAC is a voluntary nonprofit association organ-

ized to promote sound approaches to the elimination

of discriminatory employment practices. Its member-

2

ship consists of a broad segment of the employer com-

munity in the United States, including individual em-

ployers as well as several trade associations which

themselves have hundreds of corporate members. The

members of EEAC are committed firmly to the prin-

ciples of nondiscrimination and equal opportunity in

employment.

The Council’s members, and the constituents of its

trade association members, are deeply concerned about

the problem of drug and alcohol abuse in the nation,

and many have implemented programs addressing

substance abuse in their workplaces. Often, these pro-

grams include drug and alcohol testing, for both ap-

plicants and current employees. Many of these pro-

grams, in fact, are based on safety concerns similar

to those articulated by the Federal Railroad Admin-

istration (FRA) as justification for its regulations

at issue herein. Many private sector programs, like

the FRA rules herein, permit testing of a particular

worker for “cause,” and also require testing after an

accident resulting in death, serious injury or signifi-

cant property damage.

EEAC has a direct and substantial interest in this

case. First, several of its members, as rail operators,

are directly affected by the regulations struck down

by the Ninth Circuit below. Just as importantly, the

testing programs adopted by other EEAC members

will be affected by constitutional concepts such as

“cause” and “individualized suspicion” at issue herein

—even though, as private sector companies, they are

not subject directly to the Fourth Amendment’s pro-

hibition against unreasonable searches and seizures.

For example, several states have enacted legislation

barring private sector employers from requiring drug

3

tests in the absence of some degree of cause,' while

others permit testing without individualized suspi-

cion for employees who work in high risk or danger-

ous occupations.”

Also, many EEAC members have collective-bargain-

ing relationships with unions which are regulated

under the National Labor Relations Act, 29 U.S.C.

$ 141 et seq. (1982), and the Railway Labor Act, 45

U.S.C. § 151 et seq. (1982). In many instances, these

agreements address the issue of substance abuse test-

ing, and in evaluating the propriety of substance

abuse programs under these acreements, arbitrators

sometimes rely upon constitutional concepts.* More-

over, if the Ninth Circuit’s ruling is allowed to stand

—including its strained interpretation of “state ac-

tion” “—private employers will unjustifiably he sub-

' See, e.g., Conn. Pub. Act No. 87-551 (1987): Iowa Code

§ 730.5 (1987); 1987 La. Act 464; Minn. Stat. § 181.95

et seq. (1987) ; Mont. Code § 39-2-304 (1987) : R.I. Gen. Laws

§ 28-6.5-1 (1987) ; and 1987 Vt. Act § 61.

* See Conn. Pub. Act No. 87-551 (requiring employers to

have “reasonable suspicion” in order to test most workers, but

permitting random testing for employees who serve in an

occupation which has been “designated as a high-risk or safety

sensitive occupation’) ; Minn. Stat. § 181.950, et seq. (random

testing permitted for “safety sensitive positions”) ; Mont.

Code § 39-2-304 (testing permitted for applicants in “hazard-

ous work environments’’).

8 See, e.g., Shell Oil Co. v. Oil, Chemical and Atomic Work-

ers International Union, 84 LA 562, 565 (BNA) (1985);

Texas Utilities Generating Co., 82 LA 6 (BNA) (1983).

* The Ninth Circuit ruled that the Fourth Amendment “ap-

plies to drug tests conducted at the instigation of the railroads

4

ject to the Fourth Amendment whenever the federal

government even “encourages” drug tests by private

employers. In fact, in Brotherhood of Locomotive

Engineers v. Burlington Northern Railroad Co, 838

F.2d 1087, cert. filed (No. 87-1631) (April 1, 1988),

the Ninth Cireuit recently read Fourth Amendment

privacy protections into a union’s relationship with

its private sector employer without any action by the

federal government whatsoever.’ Accordingly, EEAC

adopted by the FRA.” Railway Labor Erccutives’ Ass'n v.

Burnley, 839 F.2d 575, 579. In doing so, the court ruled, in

part, that “the federal government’s role in promulgating the

regulations in question is suficient government action to sub-

ject the tests to the limitations of the fourth amendment.”

Id. The court explained that even “mere encouragement” of

a search by the federal government triggered state action.

Td. at 581.

Such a concept presents serious and far-reaching potential

implications. For example, an amendment that would prohibit

federal funds from being exnended in any workplace which is

not free from the illegal use of controlled substances was

approved on May 17, 1988, by the House of Representatives.

The amendment was offered vy Representative Robert Walker

(R-PA) to H.R. 1567, 100th Cong., 2d Sess. (1988), to the

Enerev and Water Appropriations bill. Another bill, H.R.

41717, 100th Cong., 2d Sess. (1988), passed the House Govern-

ment Onerations Committee on June 29, 1988. It requires

federal contractors to certify that they are providing drug-

free workplaces. It is likely that the Ninth Circuit’s version

of “state action” would be triggered under these two amend-

ments, subjectine all emplovers who receive federal funds

under one of the covered programs to the Fourth Amendment.

5 Burlington Northern, 838 F.2d 1087, is currently on a

petition for a writ of certiorari with this Court (No. 87-1651).

In its decision, the Ninth Circuit, unexplainably, “decline[d|

to assume that [the union] implicitly granted [Burlington]

the authority to invade their privacy in ways the government

could not.” Jd. at 1092.

5

has a substantial interest in this Court’s inquiry into

whether an employer must have “individualized sus-

picion” in order to test those employees who present

grave safety risks to themselves and others, as well

as what kinds of safety risks, if any, can justify test-

ing after an accident or major rule violation.

Because of its interest in the issues associated with

substance abuse, EEAC, through a closely related

foundation funded by its members, sponsored the

preparation of a monograph titled Drug and Alcohol

Abuse: A Guide to the Issues, by J. Michael Walsh,

Ph.D. and Stephen C. Yohay, published in 1987 by

the National Foundation for the Study of Equal

Employment Policy. In addition, EEAC filed an

amicus curiae brief in National Treasury Employees

Union v. Von Raab, No. 86-1879 (a companion case

to the instant case), as well as an amicus brief in

support of the Petition for a Writ of Certiorari in

Burlington Northern Railroad Co. v. Brotherhood of

Locomotive Engineers, supra. More generally, as a

broadly-based national organization, EEAC has filed

many amicus briefs with this Court. Some of these

cases include Watson v. Fort Worth Bank & Trust,

S. Ct. (No. 86-6139); School Poard of

Nassau County v. Arline, 107 S. Ct. 11283 (1987):

and Connecticut v. Teal, 457 U.S. 440 (1982).

STATEMENT OF THE CASE

The Federal Railroad Administration (FRA), af-

ter a two-year investigation and comment period,

promulgated extensive regulations designed “to pre-

vent accidents and casualties in railroad operations

that result from impairment of employees by alcohol

or drugs.” 49 C.F.R. § 219.1(a). Recognizing that

6

there had been 34 fatalities, 66 injuries and over $28

million in property damage in the period between

1975 and 1983, 49 Fed. Reg. 24254 (June 12, 1984),

the FRA decided that its regulations should address

the drug and alcohol problem in two ways. Subpart

C of its regulations, accordingly, requires railroads

to test employees who are directly involved in a “major

train accident”—one involving a fatality, $500,000

damage to railroad property, or the release of hazard-

ous materials: an “imnact accident”—one involving

a reportable iniurv or damage to railroad property

of $50,099: or an accident that involves a fatality to

a eo-worker. Subpart D, on the other hand, author-

izes (but dees not require) railroads to vive tests

whenever a supervisor, after a reportable accident,

has reasonable suspicion that an employee contributed

to the occurrence or severity of an accident: or when

‘ailroad rules—such as failure to stop or excessive

speeding—are violated."

The Railway Labor Executives’ Association (RLEA)

brouceht suit. seekine to enjoin the implementation of

the FRA‘ regulations. The district court, in an opin-

ion from the bench, granted the government’s mo-

tion for summary judement. The Ninth Circuit re-

versed, however, ruling that the FRA’s rules im-

properly nermitted unreasonable searches and sei-

zures in violation of the Fourth Amendment. /’ail-

van Labor KBveenutives’ Ass'n v. Burnley, 839 F.2d

575, 587-589 (9th Cir. 1988). In doine so, the Ninth

Circuit cited the standard established by this Court

*"Subparts C and D contain other drug testing provisions

that were not struck down by the Ninth Circuit. Those provi-

sions are not at issue in this case and are not addressed in

this brief.

7

in O’Connor v. Ortega, 107 S. Ct. 1492 (1987), that

a search must be justified both at its inception and

in its scope. The Ninth Circuit held that a drug test

would not be justified at its inception because the

rules did not have a “individualized suspicion” re-

quirement: “Accidents, incidents or rule violations,

by themselves, do not create reasonable grounds for

suspecting that tests will demonstrate alcohol or drug

impairment in any one railroad employee, much less

an entire train crew.” 839 F.2d 575 at 587. The

court then stated in dicta that even if the tests were

reasonable at their inception, they still are not rea-

sonable in scope because the “tests cannot measure

current drug intoxication or degree of impairment.”

Id. at 588.

in a dissenting opinion, however, Judge Alarcon

took issue with the majority’s reasoning. Noting that

drug usage among railroad workers has been impli-

cated in numerous deaths, injuries and damage, and

that the majority failed to properly balance the guv-

ernment’s interests along with those of the ruilroad

employees, Judge Alarcon indicated that he would

hold that the FRA’s rule is “justified at the incep-

tion.” He reasoned:

1 would «sid that the government's compelling

need to assure railroad safety by controlling

drug use among railway personnel outweighs

the need to protect privacy interests. As recent

history attests, locomotives in the hands of drug

or alcohol-impaired employees are the substan-

tial equivalents of time-bombs endsngering the

lives of thousands. The threat imposed by drug

or alcohol impaived railroad workers transport-

ing hazardous materials across this nation is for

graver than the potential danger presented by

8

the customs the officers ... the prison guards

.. or... the transportation workers in [other

cases }.

Id. at 569 (emphasis in original). In addition, he

stated that the tests can be performed “in the ab-

sence of individualized suspicion,” that they are not

excessively intrusive, and that they are “reasonably

related to the objective of determining whether rail-

road workers are intoxicated on the job.” Jd. at 596-

98.’

SUMMARY OF ARGUMENT

In O'Connor v. Ortega, 107 S. Ct. 1492, 1503

(1987), the Supreme Court held that a search of an

employee by an employer subject to the Fourth

Amendment must be both reasonable at its “incep-

tion” and reasonable in its “scope.” This Court

should hold that a drug and alcohol testing program,

like the one adopted in the FRA in its regulations

herein, can he reasonable at its “inception” even if

supervisors do not have “individualized suspicion”

that a particular employee caused a workplace acci-

dent. Such a holding is justified herein because rail-

road companies have a “work-related” purpose to ad-

minister post-accident tests—to maintain “supervision,

control and the efficient operation of the workplace.”

Id. at 1499.

In addition, such a testing program is reasonable

at inception because statistics reveal significant on-

the-job substance use and impairment among’ rail

employees, such that there is reason to believe that a

post-accident test will “turn up evidence ... of work.

———s

‘This brief does not address the issue of whether taking

of the urine, or its examination, constitute a “search or

seizure.”

9

related misconduct.” Jd. Statistics cited during the

FRA’s rulemaking, in fact, noted that 23°) of all

operating personnel were problem drinkers, and that

one out of eight rail workers drank while on duty

during the study year. 48 Fed. Reg. 30724 (1983).

Moreover, this Court in O’Connor left open the pos-

sibility that other types of searches—besides ‘‘work-

related” searches and “investigations of misconduct”’

—would be permitted under a lessened standard, one

that does not require individualized suspicion. Jd.

at 1503. The amicus submits that this case, which

presents grave safety risks to co-workers and mem-

bers of the public, presents an opportunity to recog-

nize such a lessened standard. Several courts of ap-

peals, in fact, have ruled that strong safety consid-

erations permit certain employers to administer pe-

riodic or post-accident tests. Two such courts of ap-

peals’ decisions have even involved employers in the

transportation industry under facts that are close to

the ones presented herein. See Jones v. McKenzie,

833 F.2d 335 (D.C. Cir. 1987), cert. filed (No. 87-

1706) (April 15, 1988): Division 241 Amalgamated

Transit Union v. Suscy, 538 F.2d 1264 (7th Cir.),

cert. denied, 429 U.S. 1029 (1976).

In addition to being reasonable in their inception,

the FRA’s rules are reasonable in their “scope.”

First, the FRA’s rules are “reasonably related to the

objectives of the search.” New Jersey v. T.L.0., 4169

U.S. 325 (1985)—that is, they seek in part, to deter

train operators from drinking or taking drugs while

on duty. Significantly, other means of alcohol and

drug detection—such as background investigations

and supervisor observation of workplace perform-

ance—will not be as effective as FRA’s testing pro-

gram. Second, the FRA rules not not “excessively

10

intrusive,” id., a point conceded by the Ninth Cir-

cuit below, because the intrusiveness of the actual

tests themselves have ‘‘been reduced as much as prac-

ticable.”” 839 F.2d at 589.

ARGUMENT

POST-ACCIDENT DRUG TESTING BY AN EMPLOYER

IN A SAFETY SENSITIVE INDUSTRY NEED NOT BE

PRECEDED BY INDIVIDUALIZED SUSPICION OF

EACH EMPLOYEE TESTED IN ORDER TO BE “REA-

SONABLE” WITHIN THE MEANING OF THE

FOURTH AMENDMENT

I. To Be Lawful Under the Fourth Amendment, An Em-

ployer’s Program Need Only Be Reasonable At Its

Inception And In Its Scope

The Fourth Amendment requires searches by an

employer subject to the Fourth Amendment to be

“reasonable.” This Court has ruled that to deter-

mine whether a search is reasonable requires “bal-

anc[ing] the nature and quality of the intrusion on

the individual’s Fourth Amendment interests against

the importance of the governmental interests alleged

to justify the intrusion.” United States v. Place, 462

U.S. 696, 708 (1983); Camara v. Municipal Court,

887 U.S. 525, 536-537 (1967). In the workplace con-

text, the seminal case of O’Connor v. Ortega, 107 S.

Ct..1492 (1987) (plurality opinion) made clear that

this balancing must inelude the weighing of “the in-

vasion of the employees’ legitimate expectations of

privacy against the government’s need for supervi-

sion, control and the efficient operation of the work-

place.” Id. at 1499. In O’Connor, this Court went on

to hold that:

public employer intrusions on the constitution-

ally protected privacy interests of government

11

employees for noninvestigatory, work-related

purposes, as well as for investigations of work-

related misconduct, should be judged by the

standard of reasonableness under all the circum-

stances. Under this reasonableness standard,

both the inception and the scope of the intrusion

must be reasonable.”

Id. at 1502-03 (emphasis supplied).

This two-fold inquiry, “reasonable at inception”

and “reasonable in scope,”’ therefore, serves as the

starting point for determining the legality of the

FRA’s drug testing rules. As we show below, be-

cause of the FRA’s need to maintain “supervision,

control and the efficient operation of [its] workplace,”

id. at 1499, its rules are reasonable under both

grounds—and this Court should hold that an em-

ployer need not always have “individualized” suspi-

cion in order to meet that standard.

II. Because Of The Strong Safety Concerns Present In

Some Occupations—Like: The Railroad Industry—It

Can Be “Reasonable At Inception” For An Employer

To Institute A Post-Accident Drug Test Without Hav-

ing Individualized Suspicion

In O’Connor, this Court explained at least two

ways in which a search can be “justified at its in-

ception”: there either can be “reasonable grounds

for suspecting that the search will turn up evidence

that the employee is guilty of work-related miscon-

duct, or that the search is necessary for a noninvesti-

gatory work related purpose.” 107 S.Ct. at 1503

(emphasis supplied). The Ninth Circuit below, how-

ever, made a fundamental mistake in its legal analy-

sis. It recognized only one of the two possible justi-

fications discussed in O’Connor, “reasonable grounds

A

for suspecting that the4earch will turn up the evi-

dence sought.” 839 F/2d at 587. Had the Ninth Cir-

cuit recognized (and properly discussed) the possi-

bility that railway companies have a “noninvestiga-

tive work-related purpose” in administering certain

drug tests, this case likely would have led to a differ-

ent conclusion.

Under that neglected standard, it is obvious that

railroads have a “work related purpose” in ferreting

out (and deterring) drug use by their workers. As

Justice Alarcon stated in his dissent:

Drug usage among railroad personnel has been

implicated as a potential cause of numerous train

accidents which resulted in injury and death.

Two such accidents are noted in the companion

eases to this matter, Brotherhood of Locomotive

Eng’rs v. Burlington N. R.R. Co., 838 F.2d 1087.

These accidents caused seven deaths and over $3

million in property damage. These tragic events

were not isolated incidents. They are two exam-

nles of a long line of aleohol or drug-related trag-

elies. See generally T. Manello & F. Seaman,

Prevalence, Costs and Handling of Drinking

Problems on Seven Railroads ... The threat

posed by aleohol and drug-related railroad acci-

dents is particularly dangerous in light of the

fact that extremely hazardous materials are of-

ten transported by rail... Railroad Accident

Ri port—D: railine pt of [llinois oF ntral Gulf Rail-

road Freight Train Retra 9629 Kast (GS-2-28)

opd Release of Hazardous Materials at Living-

ston, Lowisiana, Se p tember 28, 1982 (1983) (de-

cribing an alcohol-implicated train wreck which

resulted in a chemical spill requiring the evacu-

ation of a community of 3000 persons for a pe-

rlod of two alii

13

839 F.2d at 594. An employer clearly has a “work

related purpose” to test employees for drug use, not

necessarily to investigate and penalize particular

workers, but to deter and prevent further injury and

destruction of property.

Moreover, the Ninth Circuit erred in discussing the

one standard that it recognized, “reasonable grounds”

to believe railroad companies will “turn up evidence”

of drug or alcohol use. Comments during the FRA’s

rulemaking “confirmed that alcohol and drug _ use

does occur on the railroads with unacceptable fre-

quency, despite existing rules and programs.” 49

Fed. Reg. 24253 (June 12, 1984). The statistics

from a 1979 study, in fact, are truly shocking. They

reveal] that:

“19° of all employees were ‘problem drinkers’ ”

“93°> of operating personnel were ‘problem

drinkers’ ”’; ... [o]nly 4° of problem drinkers

were receiving help through an employee assist-

ance program, and even fewer were handled

through disciplinary procedures”; “5° of work-

ers reported to work ‘very drunk’ or got ‘very

drunk’ on duty at least once in the study year

(1978)”; “13 of workers reported to work at

least ‘a little drunk’ one or more times during

that period”; “137 of operating employees drank

while on duty at least once durifig the study year,

averaging about 3 such inetances during the

year’; and “fajn estimated cne out of every

eight railroad workers drank at least once while

\\ on duty during the study year.”

Petition for a Writ of Certiorari at 3 n.1, citing 48

Fed. Reg. 30724 (1983).* On a more down to earth

* These numbers reflect the pervasive drug use in the nation

in general, and the workplace specifically. For examp!e, the

EE I

14

level, the brakeman involved in the January 4, 1987

Conrail accident near Chase, Maryland testified that

he used marijuana with his co-workers “probably”

more than ten times (and “maybe” more than 20

times) during 1986 alone. See Brief Amicus Curiae

of Thomas Colley, et al., in support of Petition for

Certiorari (Colley Brief) at 6. Accordingly, these

statistics reveal that there is reasonable grounds to

believe that post-accident tests given pursuant to the

FRA’s rules will “turn up evidence” of drug or al-

cohol use, a clear justification to test under O’Con-

nor,

Even more important than these two exceptions,

this Court in O’Connor stated that there are a pleth-

ora of “other types of employer inirusions’— hesides

193 National Household Survey on Drug Abuse compiled by

the National Institute on Drug Abuse (NIDA) reports that

19‘¢ of all Americans over twelve years of age have used an

illicit drug in the last year. 1985 National Household Survey

on Drug Abuse, NIDA Capsule, National Institute on Drug

Abuse (October, 1986), cited in Notice Of Proposed Rulemak-

ing, FAA Anti-Drug Program, 33 Fed. keg. 83568 (March 14,

1988). Particularly alarming for employers are data indicat-

ing that in the 20-10 year old population—those currently

entering the workforce—65 percent have used illicit drugs,

and 42 percent of those studied have done so within the last

year. Among employed 20-10 year olds, 297 reported use of

an illicit drug in the past vear, and 19’? reported some illicit

drug use at least once in the past month. /d.

In fact, in a poll conducted by a Cocaine National Help Line

in New Jersey, 75 percent of 227 drur users admiited to usine

illegal drugs on the job: 61 percent said that the drugs inter-

fered with their work performance: 44 percent stated that

they sold drugs to other employees: 18 percent admitted to

having had a drug related accident: and 18 percent udmitted

that they had stolen from their employers to support their

drug habits.

15

the “work-related searches” and “investigation of

workplace misconduct” directly involved in that case

—in which employers should be permitted to search.

Id. at 1501. Significantly, the Court implied that

some of these searches should be under an even lesser

standard, not necessarily one requiring “individual-

ized suspicion.” Jd. at 1503. This case, which pre-

sents grave safety concerns,’ presents such a situa-

tion.

Indeed, several reasoned courts of appeals’ deci-

sions recognize the need for employers to be able to

test for safety reasons absent individualized suspi-

cion. In Division 241 Amalqamated Transit Union

v. Suscy, 538 F.2d 1264 (7th Cir.), a case that in-

volves safety issues in the transportation industry, a

bus drivers’ union challenged the requirement that

employees submit to a “blood and urine test when

they are involved in ‘any serious accident.’” Jd. at

1266. The Seventh Circuit, reasoning that the em-

ployer had a “paramount interest in protecting the

public,” found the tests to be constitutional: “Cer-

tainly the public interest in the safety of mass transit

*A rule permitting drug screens absent individualized sus-

picion is especially appropriate in the instant case. First, the

railroad companies herein are not acting in a “law enforce-

ment” capacity when they give a drug test. Rather, the rail-

roads (like many of EEAC’s members) are acting as “employ-

ers”; they are seeking to maintain “supervision, control and

the efficient operation of the workplace.” O'Connor at 1499.

And, as this Court made clear, outside the “law enforcement”

context, traditional “ ‘probable-cause requirement[s become]

impracticable” for legitimate work-related, noninvestigatory

intrusions as well as investigations of work-related miscon-

duct. Jd. at 1501, citing New Jersey v. T.L.0., 469 U.S. 325,

351 (1985).

16

riders outweighs any individual interest in refusing

to disclose physical evidence of intoxication or drug

abuse.” Jd. at 1267. i

In another transportation ease, Jones v. McKenzie,

833 F.2d 335 (D.C. Cir. 1987), the District of Co-

lumbia imposed a mandatory testing program in re-

sponse to “repeated incidents of bizarre or dangerous

drug-related behavior by [bus] drivers and attend-

ants while on duty.” Jd. at 336. The D.C. Circuit,

while recognizing that the tests intrude heavily upon

the employees’ privacy interests, nonetheless noted

that those interests “can be outweighed only by strong

governmental concerns.” Jd. at 340. Stressing the

“serious safety concerns” id. (emphasia in original)

by the government employer, the court held that the

employer “acted pursuant to a significant and com-

pelling governmental interest” as follows:

There can be no doubt whatsoever that the School

System’s mission of safely transporting handi-

capped children to and from school cannot be en-

sured if employees in the Transportation Branch

are allowed to work under the influence of illicit

drugs. Any suqgestion to the contrary would be

preposterous, The case law on this point is clear

that a governmental concern is particularly com-

pelling when it involves the physical safety of the

employees themselves or of others.

Id. (emphasis supplied), citing Allen v. City of Mar-

ietta, 601 F.Supp. 482 (N.D. Ga. 1985) (mandatory

drug tests permitted for workers around high-

voltage wires in view of reports of drug use). A

fortiori, it is “preposterous” for the RLEA to sug-

gest that individualized suspicion should be required

where even more compelling safety concerns—tre-

mendous property damage, injury and loss of life—

17

are presented by a train accident under the facts

herein.

Other cases reject an “individualized suspicion”

requirement in light of strong safety concerns.

NTEU v. Von Raab, 816 F.2d 170 (5th Cir. 1987),

cert. granted, a case that is noted as addressing pri-

marily the Customs Service’s need to preserve the

integrity of its interdiction operations, also addressed

safety concerns. The court noted that “those em-

ployees involved in field operations, particularly if

carrying firearms, endanger the safety of their fel-

low agents, 2s well as their own, when their per-

formance is impaired by drug use.” Jd. at 178. The

court went on to state that the following factors,

among others, made Customs’ program reasonable:

1) that Customs attempted to minimize the intru-

siveness of the search; 2) that Customs has a dem-

onstrated need for its program given their pernicious

impact of drugs on society; 3) that the sample is

taken in the most private facility practicable; 4)

that Customs has responsibilities as an “employer of

private citizens”; 5) that less-intrusive meas.i;es were

considered; and 6) that Customs’ program is effec-

tive, primarily because drug users may choose not

to seek sensitive positions. 7d. at 177-180.

Similarly, in McDonnell v. Hunter, 809 F.2d 1302

(Sth Cir. 1987), the Iowa Department of Corrections

required correctional officers to submit to urine, blood

and breath testing at the request of Department of-

ficials. The Eighth Circuit, finding that the Depart-

ment had a compelling need to determine “whether

corrections employees are using or abusing drugs

Which would affect their ability to safely perform

their work within the prison,” id. at 1308, held that

x

rae. pe

18

“urinalyses may be performed uniformly or by sys-

tematic random selection of those employees who have

regular contact with the prisoners on a day-to-day

basis in medium or maximum security prisons.” Z/d.

See Rushton v. Nebraska Public Power Dist., 844

F.2d 562 (8th Cir. 1988) (upholding testing of nu-

clear power plant employees); National Ass’ of Air

Traffic Specialists v. Dole, No. A97-073, unpublished

slip op. (D.C. Alaska, March 27, 1987) (upholding

testing of flight service specialists), cited in Lovvorn

v. City of Chattanooga, 46 EPD © 37,972 (6th Cir.

1988).”°

As a result, this Court should adopt the rule that,

given the serious safety risks posed by workplace

drug abuse, it can be reasonable “at inception’ for

" As an example of poor reasoning—with potentially devas-

tating consequences—the Sixth Circuit in Levvorn struck

down the city’s testing of fire fighters because the potential

harm to society would not be “catastrophic.” Jd. at 52,069.

The court, in adopting a so-called “continuum of employment

cateyvories” analysis, reasoned:

In the case of fire fighters, the harm to society of a fire

fighter being impaired mav be significant. Furthermore.

those losses, especially when it is in the form of lost lives,

are irretrievable. Nevertheless, it would appear that the

likelihood of enormous losses being imposed on society

because of an impaired fire fighter is significantly lower

than with impaired air traffic controllers and nuclear

plant employees who literally hold thousands of lives in

their hands every day. That does not describe the typical

day of a fire fighter.

Id. (citations omitted). Judge Guy, in dissenting from such

an ill-conceived analysis, stated it correctly. “There is no

right, constitutional! or otherwise, to be impaired fer duty or

to engayre in illegal usage.” Jd. at 52,081.

19

an employer to institute a drug testing program with-

out necessarily having individualized suspicion."

Ill. Because The FRA’s Rules Are Reasonably Related To

Their Objectives, And Not Excessively Intrusive, They

Are “Reasonable In Scope”

As this Court stated in O'Connor, “[t]he search

will be permissible in its scope when ‘the measures

adopted are reasonably related to the objectives of

the search and not excessively intrusive in light of

... the nature of the {misconduct].’” 107 S. Ct. at

1505, citing New Jersey v. T.L.0., 469 U.S. 325, 342

(1985). See Bell v. Wolfish, 441 U.S. 520, 559

(1979).

First, in finding that the FRA rule was not rea-

sonable in scope, the Ninth Circuit noted that the

FRA did not choose the “least intrusive” means of

'! Such a rationale, in fact, serves as the impetus behind the

approach recently taken by the Department of Transporta-

tion for the testing of other pr vate sector employees subject

to its regulation. For example, the Federa! Aviation Ad-

ministration, in its Notice of Proposed Rulemaking, 53 Fed.

Reg. 8368 (March 11, 1988), stated that it intends to permit

random screens for employees in “sensitive safetv- and

security-related jobs.” See American Federation of Govern-

ment Employees v. Dole, 670 F. Supp. 115 (D.D.C. 1987). In

addition, several states that have chosen to regulate workplace

drug testing have adopted such an approach. For example,

Connecticas requires employers to have “reasonable suspicion”

In order tot

‘ most works rs, 'ut permits random testing for

employees who serve in an occupation which has been “desig-

nated as a high-risk or safety sensitive occupation.” Conn.

Pub. Act No. 87-551 (1987). See Minn. Stat. § 181.950, et se q.

(random testing permitted for “safety sensitive positions) ;

Mont. Code $ %9-2-501 (testing permitted for applicants it

“hazardous work environments”).

20

drug detection. Jd. at 589. The court reasoned that

an “individualized suspicion” requirement would ren-

der the drug procedure the “least intrusive” means

of drug detection, and that the program thus will

serve “reasonably well” to prevent on-the-job use of

aleohol and drugs. 839 F.2d at 589.

Amicus submits that employers should not have to

reply upon the “least intrusive” means of detecting

drug use, or one that works “reasonably well,” par-

ticularly where serious safety concerns are involved.

For example, supervisor monitoring—a less intrusive

means of detecting drug use—proved insufficient to

prevent the train accident on January 4, 1987 near

Chase, Maryland, involving a Conrail train driven by

Ricky L. Gates. See Colley Brief. As the Fifth Cir-

cuit in Von Raab made clear, drug use is not always

easy to detect just through supervisor monitoring:

Alternative sources of information do not elim-

inate the need for urine testing. Although the

Service has had an opportunity to observe the

performance of emplovees while they were work-

ing in non-sensitive positions, this provides scant

basis on which to evaluate their integrity and

reliability should they be assigned to work in

sensitive positions.

816 F.2d at 180. See Mullholland v. Department of

the Army, 660 F. Supp. 1565, 1569 (T.D. Va. 1987)

(observation “provides little basis on which to assess

their drug-free reputation and reliability of appli-

cants for sensitive positions”).

Neither is it effective simply to conduct background

investigations of train operators. Interviewees may

be “reluctant to disclose their knowledge of the em-

ployee’s drug use ov may be unaware of his use,

21

either because the employee has not disclosed this

activity or because he has submitted names of only

those references who do not know of his use.” 816

F.2d at 180. Moreover, “background investigations

are themselves intrusive invasions of an individual’s

privacy.” Jd. In fact, background investigations are

less desirable as a means of detection because of the

possibility of damage to an employee’s reputation

where questions are raised about potential drug us-

age.

Second, the Ninth Circuit made a fundamental er-

ror in ruling that the FRA rule was not reasonable

in scope: the court shiftec the focus of the inquiry

into whether the tests detect “current drug intoxica-

tion or degree of impairment.” 839 F.2d at 588-89.

Whether an employee is actually physiologically

impaired at the moment a urine or blood sample is

taken is not the only point of drug testing because

on-the-job impairment is only one of the problems

presented by the employee who abuses drugs. As

stated in the monograph Drug and Alcohol Abuse in

the Workplace:

The sociopathy (drug seeking, drug dealing,

drug using, ete.) associated with drug abuse can

have serious adverse effects on job performance,

teamwork, cohesiveness of the workforce, and

morale. The various legal, financial, ethical, and

moral issues that are involved place considerable

pressure on the substance abuser. Avoiding de-

tection, generating sufficient funds to purchase

drugs, and associating with other substance

abusers for support and approval are activities

which consume a considerable portion of a sub-

stance abuser’s day.

22

Id. at 22. Given such impulses, “drug abuse should

be viewed as a kind of ‘infectious’ disorder, in that it

can be spread rapidly through the workforce by em-

ployees who are known to be using drugs,” id.

Clearly, the Ninth Circuit misapprehends the true

nature of “substance abuse” and its infectious ten-

dencies—an infection that has spread throughout the

rail industry, and which the FRA rules seek to elim-

inate.

Indeed, detecting current impairment is not the

sole objective of the FRA regulations. Rather, the

FRA rules are designed to deter drug and alcohol

possession, use and intoxication, as well as deterring

employees from working while under the influence.

49 C.F.R. § 219.101. See 839 F.2d at 587. Obviously,

when these deterrence objectives are properly brought

into the inquiry, it becomes clear that the FRA post-

accident testing rules are reasonably related to their

objectives.

Such a deterrence objective is not a “flaw” in the

FRA’s program, as the Ninth Circuit is wont to call

it. 839 F.2d at 588. Rather, deterrence is the es-

sence of the program. If employees know they may

be detected, they are less likely to operate a train

while drinking or using drugs. For a job that in-

volves extreme safety risks and dangers, it should be

sufficient to keep someone from working who tests

positive for drugs after an accident or major rule

violation, even if, arguendo, such a positive result is

merely an indication that the operator has used

drugs “somewhere in the recent past.” For the use

of drugs in the recent past is an indication of that

worker’s propensity to use drugs in the future—a

gamble railroads and other safety sensitive employers

should not be forced to make. Had Ricky Gates’ pro-

23

pensity to use drugs and alcohol been uncovered ear-

lier—perhaps after a rule violation—a major train

accident could have been avoided.”

The Ninth Circuit clearly failed to recognize the

need for deterrence of drug use in a safety sensitive

occupation. This Court, therefore, should hold that

FRA’s drug testing regulations were reasonable at

their inception and reasonable in their scope, and

that an employer need not necessarily have “individ-

ualized suspicion” for its program to be reasonable.

CONCLUSION

For these reasons, and those expressed by the Pe-

titioner, EEAC respectfully submits that the deci-

sion of the Ninth Circuit below should be reversed.

Respectfully submitted,

ROBERT E. WILLIAMS

DOUGLAS S. MCDOWELL

STEPHEN C, YOHAY

GAREN E., DODGE *

McGUuUINEss & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment

Advisory Council

July 28, 1988 * Counsel of Record

'2 In addition, the FRA’s rules are not excessively intrusive.

The Ninth Circuit majority, in fact, conceded that the “man-

ner of conducting the tests is generally reasonable in that they

are performed in medical facilities,” and that the “intrusive-

ness of the process of urine testing has been reduced as much

as practicable in that only personnel of the medical facility

may supervise the sample collection.” 839 F.2d at 589.