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Drug Testing in the United States: A Short History II

Part Two

While urinalysis in the public sector would have to be adjudicated in courts, private sector drug testing had fewer constitutional hurdles and obeyed market forces.

Since an employer is free to set the terms of employment, especially at the point of hire, private sector drug testing expanded rapidly throughout the decade.

In 1983 corporate drug testing was in its infancy and only 3% of the Fortune 200 companies were drug testing job applicants or employees, but two short years later urine-testing was a $100 million business and twenty-five percent of the Fortune 500 corporations had some kind of urine-testing program in place. (To put those numbers in context, that’s a two thousand percent net increase in corporate drug testing in two years!)

During the first half of the 1980s, companies like Federal Express learned to fire employees on the basis of a single positive test despite a federal survey that found drug testing procedures to be in error at least twenty percent of the time.

In 1986, President Reagan signed Executive Order 12564 requiring federal agencies to institute urine testing programs for the purpose of creating a “drug-free federal workplace” in the public sector.

The President’s point man for a national workplace drug test initiative was the aforementioned J. Michael Walsh, the director of the Division of Applied Research at the National Institute on Drug Abuse (NIDA). The Prince of Piss, Walsh designed the drug test program for federal employees and mounted a public relations campaign to justify this new national policy.

He appeared before Congress, on national radio shows, on TV shows and told everyone who would listen that drug users were destroying American productivity.

In 1988 he testified in federal court that according to “conservative estimates” drug abuse cost U.S. industry $47 billion a year.  That number was widely quoted and completely contrived. [1]

In 1986, for the first time, the Third Circuit Court of Appeals approved mass urinalysis in the private workplace.

In Shoemaker v Handel five well-known jockeys including Angel Cordera and the legendary Willie Shoemaker sued the New Jersey Racing Commission when they were ordered to submit their urine. 

The jockey’s attorneys argued that such testing, absent any individualized suspicion, was unconstitutional.

Oddly enough, the lead plaintiff agreed with the defendant. 

Willie Shoemaker (right) at Jockeys' Ball in Los Angeles, Calif., 1957

Source: Los Angeles Times photographic archive, UCLA Library.
Willie Shoemaker (right) at Jockeys' Ball in Los Angeles, Calif., 1957 Source: Los Angeles Times photographic archive, UCLA Library.

At 4’11” and ninety-five pounds, Bill Shoemaker’s diminutive size gave him a distinct edge on the turf and in a career that spanned forty-one years he wracked up an astounding 8,833 victories including eleven Triple Crown races.

In 1986, the year his name appeared on the lawsuit against the New Jersey Racing Commission, Bill Shoemaker became the oldest jockey to win the Kentucky Derby.

“As far as I’m concerned,” the little man quipped, “random testing for drugs is OK.  I’m not opposed to that at all.  But I’m just one guy.”

Shoemaker was the president of the Jockey’s Guild and he was obliged to attach his name to a lawsuit he didn’t necessarily believe in.  The lawsuit was championed by the Guild’s managing director, Nick Jemas, a patriot who passionately opposed drug testing.

“The court talked about the integrity of horse racing, but what about the integrity of the United States Constitution?” Jemas insisted.  “The court decision didn’t consider the invasion of privacy that comes with drug testing.”

The Appeals Court ruled that “warrantless searches or seizures by voluntary participants in [a] highly regulated industry” were reasonable and that “The states’ interest in the revenue generated by wagering and the vulnerability of the industry to untoward influences” overrode the jockey’s constitutional right to privacy.  Shoemaker v. Handel [795 F. 2d 1136] opened the door for private sector workplace drug testing in the United States.

In 1988 Senator Joe Biden sponsored the hybrid Drug-Free Workplace Act mandating private sector employers with federal contracts in excess of $100,000 to maintain a drug-free workplace.

Although this law did not specifically warrant drug-testing, many employers read it that way and believed that installing a costly, high-profile drug-test program would be the best way to demonstrate a clean house to the Feds.

Thus was American business conscripted in winning the War on Drugs.

Less than twenty years after that first group of unfortunate prisoners were lined up in a DC jail, the imperfect drug test industry had ballooned to an estimated $2 billion a year marketplace with urine screening devices alone costing over $100 million dollars.

For private contractors who were conscripted to wage the war on drugs by providing drug test services… there were buckets of money to be made.

The profiteers and carpetbaggers crawled out of the woodwork.

Robert DuPont was the first director of the NIDA and the White House Drug Chief from 1973 to 1978.

During the Eighties he partnered with the outgoing head of the DEA Peter Bensinger and founded Bensinger, DuPont & Associates, a consulting firm that specialized in workplace drug testing. 

Their clients included a swarm of Fortune 500 companies and tax-fat government agencies, including the Federal Aviation Administration, the U.S. Department of Transportation, the U.S. Department of Justice, and the U.S. Postal Service, The promise of profits produced new innovations.

In 1987 a start-up in Florida called Pychemedics began to commercially market its patented hair testing matrix.

Pychemedics was led by the many-tentacled H. Wayne Huizenga, the King of Garbage, a billionaire trashman, the owner of the Miami Dolphins and the Chairman of the Board of the 1990s-era video giant Blockbuster Entertainment.

Huizenga called in several of his cronies from Blockbuster to serve on Pychemedics board; all told, the Blockbuster faction owned 47% of the fledging hair test industry. Not surprisingly, Blockbuster Entertainment became one of Pychemedics first corporate customers.

The widely known fact that their hair technology was seriously flawed was a non-issue.

It was demonstrated that Pychemedics’ hair tests could be thrown off by environmental contaminants, and several NIDA studies found that some drug molecules had an affinity for the pigment melanin, which binds more strongly to dark hair than light.

Practically speaking, that meant that Blacks and Hispanics were more likely to have a contaminated hair test and were more likely to test positive for drugs.

In 1990, the Society of Forensic Toxicology [SOFT] refused to endorse the stand-alone use of hair analysis and Blockbuster Entertainment required pre-employment hair testing for all job applicants in their nationwide chain of 3000 stores.

Months later, a federal judge dismissed the SOFT finding and declared in U.S. v. Medina that the SOFT’s cautions were primarily about the biochemical mechanisms of absorption and quality control and did not negate the basic scientific principles of hair testing.

Citing the support of other evidence, the federal court concluded, “These accepted principles establish that [hair testing] is an effective and accurate method of detecting the presence of various compounds including narcotics.”

Two years later, Blockbuster Entertainment paid Pychemedics $790,000, to make sure that every person who handed you your video was not stoned.

Inevitably and without irony, the pharmaceutical giant Hoffman-la Roche, launched a nationwide program called “Corporate Initiatives for a Drug-Free Workplace” to convince major corporate leaders to implement costly drug test programs that would also be politically smart (and so, financially advantageous).

By 1993, even J. Robert Walsh, the once and future prince of piss, cashed in his chips and founded The Walsh Group, a corporate consulting firm specializing in drug test policy and “government relations.”

Footnotes

[1] In 1982 NIDA surveyed 3,700 American households and found that the household income of adults who had “ever smoked marijuana daily for a month” was twenty-eight percent less than the income of those that hadn’t.  That difference was called “reduced productivity due to marijuana use,” even though no reason was given to prove that simplistic correlation.  When extrapolated to the entire U.S. population, the calculated loss added up to $26 billion.  NIDA researchers cherry-picked the “ever smoked marijuana daily for month” variable because when they ran the current use statistics (“those who had smoked at least once in the last thirty days”) they couldn’t find a connection to decreased income.  Once they came up with the $26 billion cost analysis NIDA researchers then tacked on equally fuzzy estimates of the costs of drug-related crimes, of medical care and accidents to produce the whopping $47 billion annual price tag for drug abuse in the U.S.  Afterward and quite publicly, President George H. R. Bush increased that figure arbitrarily to a well-quoted “$60 billion to $100 billion” by which time even J. Michael Walsh was forced to admit that these hyperbolic calculations were “based on assumptions that need additional validation.”

This is your government on drugs.

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