Major Constitutional Decision Affecting the Transportation Industry

Mike Schuler
Total Views: 4
May 20, 2009

This topic was originally brought to our attention on the Forum via user Jones Act, more commonly known as Steve Gordon of Gordon & Elias, but I thought it was a good topic for the Blog since I am sure people will have strong opinions on it.  Keep in mind that while the legal case discussed has to do with railroad workers, it has implications into the entire U.S. Department of Transportation, including maritime workers.  Steve Gordon offers the following press release outlining the case:

On Friday, May 15th, the D.C. Court of Appeals decided a case that is styled BNSF Railway Company v. United States Department of Transportation, which determined important privacy rights for aviation, rail, motor carrier, mass transit, maritime and pipeline industries’ workers.

The Department of Transportation requires that workers who violate drug testing policies must successfully complete a drug treatment program and pass a follow up urine analysis before returning to safety-sensitive work.

At issue in this case is whether the Department of Transportation can utilize a direct observation technique of watching the urine specimen leave the examinee’s body in administering the initial and subsequent follow up drug tests.

One of the interesting factual determiners in this case was the advent of devices marketed to falsify the results of random drug tests.  The “wizzinator,” a device the Court particularly highlighted, was designed to closely resemble the male genitalia and to dispense either an artificial urine sample or a previously collected clean urine sample.  The Department argued that such devices necessitate the direct observation of urine sample collections.

Indeed, the Court sided with the Department in outweighing the worker’s right to privacy by comparison to the Department’s goal of creating a drug-free transportation workplace.

From a Constitutional Law perspective, this decision is a radical departure from the Fourth Amendment “search” law precedent because it sanctions a strip search of a U.S. Citizen in the United States who submits a urine sample.  The opinion, though, leaves the reader wondering if foregoing essential privacy, especially in the context of genitalia exposure, should be required of a transportation worker, even though the industry is highly regulated.

When juxtaposed to the need to have a drug free workplace in the area of public transportation, the final decision was foreseeable, but clearly it is highly intrusive.

Steve adds up with the following comment:

This very interesting case is one that weighs the constitutional right to privacy of a U.S. Citizen under the 4th Amendment of the United States Constitution with the Government’s right to ensure safety in transportation. This case will most assuredly be discussed in law school Constitutional Law courses as it sets forth an example of sanctioning extreme intrusion literally into the genital regions without any real evidence to support such a search at that moment. The Department and the Court indicates that recidivism of drug use makes it with ‘some suspicion’ that warrants and supports this type of intrusive testing but I believe this is simply a sign of the times. That is, we, as U.S. citizens, have been losing protections since the end of the Warren court. There are many decisions involving “searches” from the Rehnquist Court that slowly shaved away our rights to privacy. This case’s result was easily foreseeable since drug usage in the workplace has become so rampant. The need to protect the public from the potential harm caused by a “Casey Jones” type is an argument that is impossible to refute.

When I asked Steve about the ramifications to gCaptain’s readers and professional mariners he replied that the rational of the case turns upon protecting the safety of the public from the transportation industry. Specifically, it could easily be applied to pilots that are charged with the responsibility of bringing in large ships into a harbor.  Whether it would apply to captains of tug boats going down the ditch, Steve believes it could because they carry hazardous material. So, though this case only applies at the moment to the railway industry, it is easily anticipated to be seen being utilized in the maritime industry.

With that in mind, do companies reserve the right to strip search when giving a urine sample to an employee on the basis of a previous infraction?

You can read more about this case, including the entire case review on Steve’s blog,

Gordon & Elias, L.L.P are a boutique law firm with a nationwide practice focusing on Jones Act, Admiralty and Maritime Law.  More information can be found at, and the associated Jones Act Blog

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