# Amicus Curiae Brief — Skinner v. Railway Labor Executives' Assn. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1431%3A23 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1989 - **Citation:** 489 U.S. 602 ## Text 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1431%3A23. Public record. Not legal advice.