An article by Karen Selick
This article was first published in the June, 1990 issue of Canadian Lawyer.  If you wish to reproduct this article, click here for copyright info.
Drug Testing?  Let the Market Decide

MANDATORY DRUG testing, like so many other meaty civil liberty issues, has been kicked around in the United States for years before finally being booted into Canada.

Although their own laws are still in limbo pending constitutional challenges, U.S. authorities continue to demand that, within another year or so, Canadian transportation workers entering the U.S. be subjected to the same kind of drug tests as their American counterparts.

This explains, at least in part, the recent proposal by transport minister Doug Lewis for mandatory drug testing for personnel employed by airlines, buses, railways, ships and trucking companies.

At first glance, it's tough taking sides on this issue.  No one wants to share the roads, waterways or skies with a bunch of drug-crazed zombies, but there are obvious dangers attached to this wholesale invasion of privacy.

It's important to distinguish between truly mandatory testing (imposed by government) and testing required by private employers. The former is a matter of coercion; the latter a matter of contract.

The Toronto Dominion Bank, for example, announced in January that it would require its top 250 employees to take drug tests at their annual medical exams. Loosely speaking, this could also be called "mandatory" testing, since any executive who wants to continue working for that company has to take the test. However, anyone who really objects can apply to work for another bank.

I suppose the same response could be made regarding those who will be tested at the whim of the government--they could also quit their jobs. But as long as government monopolizes the ownership of roads, navigable waters and airline routes, the situation really is not comparable.  Escaping the tests would involve not merely a change of employers, but a whole change of careers. And there's no guarantee that compulsory testing won't follow workers into the next career, too.

Unfortunately, the Canadian Human Rights Commission has muddied the already murky waters in their report released at the end of March. The commission takes a firm stand against all drug testing. This contrasts sharply with the Ministry of Transportation's position, and brings to mind the old maxim about typical government behaviour: anything that isn’t compulsory will be forbidden.

The commission's report draws no distinction between tests imposed by government and those requested by private employers. Rather, it complains that the use of drug tests by employers, public or private, "discriminates" against employees who fail the test or refuse to take it.

Damn right. That's what tests are for: to differentiate, to distinguish, to discriminate, according to the original meaning of that word (that is, the meaning it had before it became a swear-word of modern--day liberals).

Yet, the commission's objections don't seem to be a matter of principle; on the contrary, they are strictly pragmatic. They say it's not a question of being for or against drug use, but rather "whether there is any meaningful correlation between a positive test result and performance on the job."  Presumably, if they could be persuaded that there was a correlation—that public safety, or productivity, or something, would be enhanced by testing--they'd withdraw their objection.

Surely the commission--the supposed guardian angel of human rights across Canada--can come up with something better than this.   Is any imposition by government okay as long as somebody, some-where, derives a benefit?  If it were true that Mussolini made the trains run on time, would that really justify fascism? 

If testing is left as it is now--neither compulsory nor prohibited--the marketplace will impose its own discipline on tinpot employer--dictators who overstep acceptable boundaries of intrusiveness.

People who are generally incensed by the indignity of drug testing will prefer to work for employers who don't demand it.  Employers who insist on testing may lose employees to their competitors who don't.

On the other hand, if most people really don't mind being tested, then the ones likely to quit a testing employer will be those who actually use drugs.  Eventually, people will sort themselves out into their proper cubbyholes.

The marketplace can also be the ultimate arbiter on that issue that so disturbs the Human Rights Commis-sion: does drug use affect job performance sufficiently to warrant testing? Some employers will gamble that it does; they will go to considerable expense testing all employees, and replacing or getting treatment for those who test positive. Other employers will gamble that it doesn't; they'll save themselves the expense of testing, firing and treating, but will end up. with some drug users on their payrolls.

If drug users goof up a lot, the firms that didn't test will become less profitable than their competitors who did. On the other hand, if the cost of testing, firing and treating outweighs the cost of goof-ups, firms that test will become less profitable.  Either way, financial incentives will push employers in the right direction.

Consumers of transportation services can influence that direction, too. Personally, I'd always choose to travel on an airline that drug-tested its pilots over one that didn't.

Neither the Minister of Transportation nor the Human Rights Commission need lose any sleep over this issue. Drug testing needn’t be either mandatory or forbidden.

It will sort itself out in due course, if people are simply left free to make their own contractual arrangements.

Last updated June 3, 2000