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Assignment Criteria

Employment Law and the Hiring Process

Overview

After briefing the management team on employment law from the Management Team Briefing on Employment Laws assignment, it is time to apply the knowledge to internal processes. There are many fundamental legal concerns surrounding recruiting and the overall hiring processes within organizations. A current review of the company’s HR policies and procedures centered on employment law reveals some possible opportunities to improve the overall recruitment and hiring process. Specific opportunities exist in background checks, employment tests, and hiring and promotions. If not properly administered, these areas may cause employment law issues within the company.

Instructions

Write a 7–9 page paper in which you:

Briefly explain your overall understanding of conducting employee background checks. Why are they done? Why are they important? Be clear with your discussion.

Identify and discuss at least two types of background checks you believe most organizations conduct and explain how you will ensure the types you select are properly administered in the company.

List and describe at least six employee drug-testing procedures you would implement to comply with state drug-testing laws. How would you ensure adherence to the procedures?

Briefly discuss your understanding of bona fide occupational qualification (BFOQ), affirmative action preferences, and promotions. Then, identify at least four actions you would take to avoid employment law issues with these topics. Be specific.

The specific course learning outcome associated with this assignment is:

Review the purpose and types of background checks, bona fide occupational qualification, and affirmative action preferences.

Please use at least 3 of the attached references and include any others as needed

Please number all pages and create a heading for each question.

Rubric

Briefly explain your overall understanding of conducting employee background checks. Why are they done? Why are they important? Be clear with your discussion.–

Levels of Achievement:

Unacceptable 0 (0.00%) points

Needs Improvement 19.6875 (11.25%) points

Competent 22.3125 (12.75%) points

Exemplary 26.25 (15.00%) points

Identify and discuss at least three types of background checks you believe most organizations conduct and explain how you will ensure the types you select are properly administered in the company.–

Levels of Achievement:

Unacceptable 0 (0.00%) points

Needs Improvement 26.25 (15.00%) points

Competent 29.75 (17.00%) points

Exemplary 35 (20.00%) points

List and describe at least six employee drug-testing procedures you should ensure in order to comply with state drug-testing laws and how you would ensure adherence to the procedures.–

Levels of Achievement:

Unacceptable 0 (0.00%) points

Needs Improvement 26.25 (15.00%) points

Competent 29.75 (17.00%) points

Exemplary 35 (20.00%) points

Briefly discuss your understanding of bona fide occupational qualification (BFOQ), affirmative action preferences, and promotions. Then, identify at least four actions you would take to avoid employment law issues with these topics. Be specific.–

Levels of Achievement:

Unacceptable 0 (0.00%) points

Needs Improvement 26.25 (15.00%) points

Competent 29.75 (17.00%) points

Exemplary 35 (20.00%) points

Use at least four quality academic references.–

Levels of Achievement:

Unacceptable 0 (0.00%) points

Needs Improvement 6.5625 (3.75%) points

Competent 7.4375 (4.25%) points

Exemplary 8.75 (5.00%) points

Writing mechanics, grammar, and formatting.–

Levels of Achievement:

Unacceptable 0 (0.00%) points

Needs Improvement 6.5625 (3.75%) points

Competent 7.4375 (4.25%) points

Exemplary 8.75 (5.00%) points

Appropriate use of in-text citations and a reference section.–

Levels of Achievement:

Unacceptable 0 (0.00%) points

Needs Improvement 6.5625 (3.75%) points

Competent 7.4375 (4.25%) points

Exemplary 8.75 (5.00%) points

Information literacy and integration of sources.–

Levels of Achievement:

Unacceptable 0 (0.00%) points

Needs Improvement 6.5625 (3.75%) points

Competent 7.4375 (4.25%) points

Exemplary 8.75 (5.00%) points

Clarity and coherence of writing.–

Levels of Achievement:

Unacceptable 0 (0.00%) points

Needs Improvement 6.5625 (3.75%) points

Competent 7.4375 (4.25%) points

Exemplary 8.75 (5.00%) points

Can You Help Me With Homework? Needed By Saturday 4/30/2022 9:00 am

Employee Relations Law Journal 55 Vol. 33, No. 2, Autumn 2007

Can Employers Use Gender in
Hiring Decisions: The Discrimination
Bona Fide Occupational Qualifi cation

Applied to Health Care

Thomas N. Shorter, Christine Liu McLaughlin, and Tom O’Day

The authors suggest that the “consumer privacy” bona fi de occupational qualifi cation
may soon apply to more and more instances within the health care fi eld and,
potentially, beyond.

T he Wall Street Journal always offers thought-provoking articles, but one advertisement/article titled “Companies that Mirror Their
Consumers Can Gain a Competitive Advantage” was especially intrigu-
ing. 1 Is that general premise true in the field of health care? Amazingly,
the marketplace has found a niche for matching patients with physi-
cians and other providers of the same race. For instance, http://www.
findablackdoctor.com offers African American patients—or patients of
any other race—the opportunity to locate an African American physician
in their area. The founder of the Web site, Dr. Dina Strachan, stated:
“The purpose of this web site is to give an option to people who think
[race] is important. It’s the same way some women feel more comfort-
able with a female gynecologist.” 2 Dr. Strachan’s comment that the idea
behind her Web site is not far removed from a woman seeking a female
gynecologist shows the potential for the consumer preference argument
in the context of health care. Just how far reviewing courts will go to
protect consumer preferences remains to be seen.

TITLE VII OF THE CIVIL RIGHTS ACT: STATUTORY BFOQs

Title VII of the Civil Rights Act of 1964 states: “It shall not be an
unlawful discrimination practice for an employer to hire and employ
employees…on the basis of his religion, sex, or national origin in those
certain instances where religion, sex or national origin is a bona fi de
occupational qualifi cation reasonably necessary to the normal opera-
tion of that particular business or enterprise . . . .” 3 The fi nal clause is

Thomas N. Shorter is a shareholder in the Employment, Health Care and
Education Practice Groups in the Madison offi ce of Godfrey & Kahn, S.C.
Christine Liu McLaughlin is a shareholder in the Labor & Employment Law
Practice Group in the fi rm’s Milwaukee offi ce. Tom O’Day is an attorney
in the fi rm’s Labor and Employment Practice Group in Milwaukee. The
authors can be reached at tshorter@gklaw.com , cmclaughlin@gklaw.com ,
and today@gklaw.com , respectively.

Vol. 33, No. 2, Autumn 2007 56 Employee Relations Law Journal

known as the “business necessity” standard. Arguments in support of
a consumer preference bona fi de occupational qualifi cation (BFOQ)
are rooted in the belief that consumer desires and demands necessitate
some consideration in the name of profi table business.

Such arguments that equate consumer demands with legal discrimi-
nation have historically been rejected. Title VII itself was passed in
response to open discrimination in restaurants, theatres, and similar
establishments. Racial discrimination in restaurants, despite demands
from consumers, was a large part of why Title VII was passed in the
fi rst place. Gender, however, was treated differently than race in Title
VII. The business necessity standard does not include race as a potential
characteristic that is subject to a BFOQ. Only religion, sex, and national
origin made the cut. By the literal terms of the statute, there are no racial
BFOQs.

Despite the fact that sex is one of the characteristics open to the
business necessity/consumer preference argument, it too had a rough
start of it in reviewing courts. In 1971, in Diaz v. Pan American World
Airways , Pan American refused to hire male fl ight cabin attendants. 4 The
male fl ight cabin attendants took them to court. The issue before the
court was whether, for purposes of cabin attendants, being female was
a BFOQ “reasonably necessary” to the normal operation of the fl ights.
Pan Am advanced two main arguments: a consumer preference and a
business convenience argument. General experience, customer feed-
back, and psychological evidence supported the preference for female
cabin attendants. The trial court hearing the evidence agreed that Pan
Am passengers overwhelmingly preferred female cabin attendants. The
evidence was suffi cient to justify such discrimination.

The Fifth Circuit disagreed, adopting the Equal Employment
Opportunity Commission (EEOC) recommendation that the BFOQ
exceptions in Title VII be interpreted narrowly. The word “ necessary to
business operations” was important to the court. They rejected the idea
that mere business convenience could justify discrimination. The court
instead applied a “business essence” test which has been used by courts
ever since. “Discrimination based on sex is only valid when the essence
of the business operation would be undermined by not hiring members
of one sex exclusively.” 5

“It would be totally anomalous if we were to allow the prefer-
ences and prejudices of the customers to determine whether the sex
discrimination was valid. Indeed, it was, to a large extent, these very
prejudices (Title VII) was meant to overcome. Thus, we feel that cus-
tomer preference may only be taken into account when it is based on
the company’s inability to perform the primary function or service it
offers.” 6 The court, applying their new test, rejected Pan Am’s argu-
ments and male cabin attendants were soon fl ying the skies. The Diaz
test and precedent has been a formidable hurdle for businesses to
overcome ever since.

Can Employers Use Gender in Hiring Decisions

Employee Relations Law Journal 57 Vol. 33, No. 2, Autumn 2007

THE GENDER BFOQ

Federal regulations regarding gender BFOQs are more detailed
than other kinds of BFOQs. Federal regulations specifi cally forbid an
employer from refusing to hire a person of a certain gender because of
co-worker, client, or customer preferences. 7 The regulations also contain
an exception for the purpose of authenticity or genuineness as an actor
or actress. 8 This exception, however, is only for gender—not for national
origin, religion, or race.

Businesses have made efforts to equate consumer demands with
business necessity despite the explicit regulations against doing so.
In Fernandez v. Wynn Oil Co. , 9 a petro-chemical business working
with Latin American clients refused to promote a female employee
because company offi cials feared foreign countries would not deal with
a representative of the company who was a woman. The Ninth Circuit,
reversing the decision of the lower court, held that accommodating a
foreign country’s sex discrimination is not a valid BFOQ. The court
cited an EEOC decision stating that the need to accommodate racially
discriminatory policies of other countries cannot be the basis for a valid
BFOQ. 10

The court, noting the limited BFOQ business necessity exception and
narrow interpretation of that exception, rejected the business’ conten-
tion that the discriminatory practice was necessary to protect the essence
of the business. The court ruled for the plaintiff and against the business.
In general, courts and especially the EEOC have been hesitant to allow
consumer preferences to drive discrimination against one gender over
the other.

THE CONSUMER PREFERENCE COUPLED WITH
PRIVACY BFOQ

The Consumer Privacy BFOQ has roots in the legislative his-
tory of Title VII. In the fi nal stages of deliberation over the Act, one
Congressman stated: “There are so many instances where the matter of
sex is a bona fi de occupational qualifi cation. For instance, I think of an
elderly woman who wants a female nurse.” 11 That comment gave rise to
the argument that Title VII allowed discrimination based on consumer
privacy concerns. The consumer preference argument is signifi cantly
stronger in favor of businesses, and especially health care providers,
when the preference is rooted in privacy concerns. Courts have held
that nursing home attendants, hospital orderlies, and OB/GYN physi-
cians all regularly handle issues that give rise to privacy concerns. In
those circumstances, and in those courts, gender-based discrimination
is acceptable.

The most recent surge of activity has been in the OB/GYN fi eld.
These cases are just starting to make their way into court systems. The

Can Employers Use Gender in Hiring Decisions

Vol. 33, No. 2, Autumn 2007 58 Employee Relations Law Journal

typical scenario is a male suing for gender discrimination based on
the employer’s perceived need to hire female OB/GYN physicians or
nurses. An example of this type of case is found in Veleanu v. Beth Israel
Medical Center . 12

A male OB/GYN physician brought a discrimination claim against
Beth Israel, alleging that he was discriminated against on the basis of
his gender because the hospital accommodated female patients who
requested female doctors. The court distinguished Diaz and other con-
sumer preference cases by noting the special circumstances of privacy
concerns of health care patients. The court noted that “giving respect
to a deep-seated feeling of personal privacy involving one’s own geni-
tal area is quite a different matter from catering to the desire of some
male airline passenger to have . . . an attractive stewardess.” 13 “Because
such care implicates the patient’s privacy rights, personal dignity and
self-respect, the court believes that healthcare presents unique circum-
stances that may justify reasonable efforts to accommodate a patient’s
expression of preference of doctor by gender and that female patients
may have a legitimate privacy interest in seeking to have female doctors
perform their gynecological examinations.” 14

The court found the male plaintiff failed to meet his burden of prov-
ing discrimination and affi rmed the strength of the consumer privacy
BFOQ.

ANALYSIS AND APPLICATION TO HEALTH
CARE PROVIDERS

It is not as clear, however, that Diaz is as inapposite as the Veleanu
court states. Pan American argued for a consumer preference BFOQ not
because female stewardesses are more attractive than male stewards,
but because people fl ying felt more comfortable and more relaxed with
female stewardesses. The airline even offered psychological evidence
that customers felt more comfortable with female stewardesses. In a
way, the Veleanu court demeans the substance of the Diaz decision.
The Veleanu court mischaracterized the argument in Diaz as simply a
consumer preference for attractive stewardesses in order to more eas-
ily distinguish their ultimate conclusion of law from that of the Diaz
court.

If the Diaz case were heard in a contemporary court, and an airline
argued along the lines of a business necessity BFOQ (supported with
the same psychological evidence), would the employer come out with a
victory? The answer is likely not. What truly distinguishes Veleanu from
Diaz is the additional element of privacy. The consumer preference
argument when coupled with a privacy element is much stronger and
offers the ability for employers to satisfy consumer and patient demands
within the framework of the law. In the context of health care, where

Can Employers Use Gender in Hiring Decisions

Employee Relations Law Journal 59 Vol. 33, No. 2, Autumn 2007

privacy is an overarching concern in almost every instance, the potential
for a consumer preference BFOQ is at its greatest.

At this point, few courts have authorized the use of a Consumer
Privacy BFOQ. Discrimination in favor of female OB/GYN physicians is
not widely accepted by the courts. If a health care provider is willing to
take a risk on the argument that a consumer privacy BFOQ does apply,
it should have a carefully crafted policy in place. In addition, the health
care provider should take measured steps to document the consumer’s
preference as well as the basis for the privacy concerns. Like many areas
of health care, the consumer privacy BFOQ is constantly growing and
may soon apply to more and more instances within the health care fi eld
and, potentially, beyond.

NOTES

1. Apr. 11, 2006, at B11.

2. Damon Adams, “Web Sites Let Patients Find Like-Minded Physicians,” American
Medical News , Mar. 27, 2006, at A1.

3. 42 U.S.C. § 2000e-2(e)(1)(emphasis added).

4. Diaz v. Pan American World Airways, 442 F.2d 385 (5th Cir. 1971).

5. Id . at 388.

6. Id . at 387.

7. 29 C.F.R. § 1604.2(a)(1)(iii).

8. 29 C.F.R. § 1604.2(a)(2).

9. 653 F.2d 1273 (9th Cir. 1981).

10. Id . at 1277 (citing EEOC Decision No. 72-0697, CCH EEOC Decisions 1971, ¶ 6317,
at 4569).

11. 110 Cong. Rec. 2718 (1964) (Statement of Rep. Goodell).

12. 98 Civ. 7455 VM, 2000 U.S. Dist. LEXIS 13948 (S.D.N.Y., Sept. 25, 2000).

13. Id . at #22.

14. Id . at #23–24.

Can Employers Use Gender in Hiring Decisions

Can You Help Me With Homework? Needed By Saturday 4/30/2022 9:00 am

© 2018 Wiley Periodicals, Inc., A Wiley Company • All rights reserved
DOI: 10.1002/catl

VOLUME 15, ISSUE 5 AUGUST 2018

SnapShotS

MANAGING YOUR
OFFICE

Crack the communication
code. Page 6

OF COUNSEL
Learn how the EU’s

privacy regs impact your
student-athletes. Page 8

YOU MAKE THE CALL
Were campus police

covered by public records
law? See if you can guess
how the court ruled in this
month’s highlighted legal
case. Page 9

LAWSUITS & RULINGS
Review summaries of

recent court cases. Pages
10–11

LEADERS & INNOVATORS
Aaron Denton, vice

president of athletics at
NC Wesleyan College,
shares advice for managing
challenges facing college
athletics. Page 12

Continued on page 4.

Continued on page 3.

Compliance

Prepare for potential impact
of legalized sports betting

By Claudine McCarthy, Editor
WASHINGTON, D.C. — As many states continue to weigh whether to allow

sports betting, colleges and universities brace themselves for the potential
impact on their athletics programs.

Prior to the U.S. Supreme Court’s ruling in May to overturn a 1992 federal law
prohibiting sports betting, only Nevada, and three other states to a much lesser
degree, had legalized sports gambling. Now, all states have one year to decide
if they will legalize sports betting, with more than a dozen predicted to do so.

A panel discussed the issue at the recent annual convention for the National
Association of Collegiate Directors of Athletics.

Compliance

Look for inconsistencies in
drug-testing policies, procedures

By Claudine McCarthy, Editor
WASHINGTON, D.C. — Charged with armed robbery and trying to justify his

plea for a reduction in bail, a former student-athlete claimed to have developed a
drug problem at Rutgers University, where he failed several drug tests as a football
player, and placed the blame squarely on the school’s shoulders. That statement
made during a 2015 bail hearing in turn opened the door for an investigation into
Rutgers’ drug-testing policies and procedures, according to Paul Perrier, senior
associate athletics director and chief compliance officer at Rutgers.

That investigation revealed that the athletics department’s drug-testing policy
had last been reviewed several years prior. It also revealed a lot of inconsistent
practices, unwritten rules, and long-forgotten procedures. “We had different
people saying different things. There were a lot of procedural things we weren’t
following,” Perrier acknowledged. From there, the athletics department under-
took a review and updating of its drug-testing policy and procedures.

2016 Winner
Specialized Information

Publishers Association Awards

Best Instructional Reporting

4 College AthletiCs
And the lAw

August 2018
DOI: 10.1002/catl

© 2018 Wiley Periodicals, Inc., A Wiley Company
All rights reserved

Continued from page 1
Drug testing plays role

in states that legalize pot
The legalization of marijuana in Colorado hasn’t

significantly increased overall positive drug-test results
among student-athletes at Colorado State University,
which did increase its testing frequency from once a
month to two or three times per month, according to
Shalini Shanker, senior associate AD for compliance.
The increased testing has identified more student-
athletes arriving on campus with pre-existing marijuana
addictions, which has led to the incorporation of more
intensive counseling, and if student-athletes don’t com-
ply they’re withheld from team activities, she explained.

“We’re trying to help our student-athletes to recover
rather than being punitive,” Shanker said. But the athletics
department still emphasizes that even though marijuana
has been legalized by the state, it’s prohibited by the
National Collegiate Athletic Association, on campus
and on federal land, and by those under 21, she noted.
Education helps student-athletes and staff alike. In fact,
athletics staff have been surprised to discover that for
student-athletes, Adderall and painkillers are often a gate-
way to marijuana rather than vice versa, she noted. ■

CoMplianCe

If your school faced a similar investigation, would
your written drug-testing policies and procedures
prove consistent with your actual practices and
verbal statements throughout your department?

Considering the increased spotlight on drug test-
ing, now is the time to examine your drug-testing
policy, Perrier said. You might discover your written
policy doesn’t accurately reflect the minor or major
tweaks you’ve made along the way, he noted.

Perrier spoke about drug-testing policies at the annual
convention for the National Association for Athletics
Compliance as part of a panel that included Erika Kuhr,
M.Ed., ATC, CSCS, senior director of sport drug testing
at Drug Free Sport; and Shalini Shanker, senior asso-
ciate AD for compliance at Colorado State University.

Although the National Collegiate Athletic Associa-
tion doesn’t require schools to have a drug-testing
policy, if you do have one, you’re required to follow
it, Perrier said. And a drug-testing policy can deter
drug use/abuse and identify student-athletes need-
ing help, he noted.

As you review your school’s drug-testing policy,
Perrier and Kuhr recommended keeping the follow-
ing points in mind:

❑ Choose the right person to oversee the policy.
You have to make sure it’s the right person. Some
schools might designate their team physician as the
overseer, but that might not be the best person. Instead,
consider a drug-testing committee with one lead per-
son who tracks and documents all drug-testing tasks.

❑ Develop a drug-testing committee. This can
be challenging because “no one wants to be the bad
guy,” Kuhr said. Include representatives from sports
medicine, athletic training, and compliance. “It’s
important to share the load because it helps ensure
accountability,” and maintains knowledge in case
of turnover or infractions, she added.

❑ Leave room for flexibility. Perrier noticed
Rutgers’ policy had an aggressive tone, so after much
discussion with the physician and general counsel,
they switched to more flexible language, such as us-
ing words like “should/may” instead of “shall/will.”
Include wording that gives the AD the flexibility to
sway from the policy any time she deems it necessary.

❑ Make the banned list more gray than defini-
tive. Consider such wording as “including but not
limited to the NCAA banned list.”

❑ Determine the selection process. If you
want to select and test a team that’s heading to a
championship, you’ll need to ensure that your policy
already states you can do that. Policies should also
address testing under the following circumstances:

random, reasonable, suspicion, team, pre-season,
post-season, follow-up, and re-entry.

❑ Understand the collection process. Hair,
urine, saliva, and blood each measure different
detection windows. “Urine can detect more recent
one-time experimentation use and will also help you
deal with those chronic users,” Kuhr said. Saliva
detects use within the past 24 to 48 hours, while
hair reveals only chronic use.

❑ Set penalties. Many schools have different
penalty structures for marijuana than other drugs,
with most schools having moved to four or five strikes
for marijuana while keeping three strikes for all other
drugs, but some have zero tolerance, Kuhr said.
Baseline testing of all incoming student-athletes has
also become common. At Rutgers, five strikes with
marijuana leads to team dismissal, coaches aren’t
notified of results that fall just under the threshold,
and positive results for marijuana on baseline tests
don’t count as violations but trigger referrals to
counseling/support. Colorado assigns mandatory
counseling for the first strike, a percentage of the
season for the second strike, and dismissal for the
third strike. Decide whether to remove strikes for
staying clean for a certain time or for self-reporting
and requesting help.

❑ Remove obstacles. Steer clear of wording that
deters a student-athlete from obtaining help. For

5College AthletiCs
And the lAw

Vol. 15, Iss. 5
DOI: 10.1002/catl

© 2018 Wiley Periodicals, Inc., A Wiley Company
All rights reserved

CoMplianCe

Guide student-athletes through appeals process
When student-athletes receive positive drug-test results, expect them to respond with one of the following arguments:
1. I didn’t take the drugs.
2. The product I took was tainted.
3. A drug-testing procedure wasn’t followed.
That’s according to Christian Dennie, Esq., an attorney at Barlow Garsek & Simon, LLP, a law firm with offices in Texas.
These common defenses aren’t likely to be considered by the National Collegiate Athletic Association, Dennie

said. “Walking in and saying, ‘I didn’t do it,’ that’s not going to go very far,” he said.
But athletics administrators must pursue an appeal if the student-athlete wants one, because “that’s your job,”

Dennie said. When a student-athlete goes through the appeals process, help student-athletes look at the situation
from different angles, he advised, by asking such questions as: “What have you been eating and taking?”

Together, help them research the information they provide in an attempt to determine what might have caused
the positive drug-test results, Dennie recommended. For example, eating wild game, such as elk, can increase
testosterone levels and lead to positive drug-test results, he explained.

NCAA bylaws do allow claims based on a procedural challenge (i.e., collection procedures weren’t correctly
followed) or a knowledge challenge (i.e., the student-athlete was given the drug without his knowledge), but the
NCAA won’t consider challenges based on character defense, remorse, or family hardship, Dennie noted. And even
if you and others involved can prove and agree on the facts demonstrating a procedural or knowledge challenge,
it’s unlikely that the NCAA will accept it, but it might help mitigate it, Dennie added.

He shared a real-life example of a student-athlete who went shopping armed with a list of NCAA-banned sub-
stances. After GNC staff helped him compare the NCAA list to the ingredients in a particular product, they all agreed
none of the banned substances were in the product, which he purchased and consumed. But he failed his drug
test. The student-athlete’s first mistake was not consulting with his athletic trainer, Dennie noted.

In an attempt to challenge the test results, they sent the product for lab testing, which revealed the product was
tainted, but the NCAA didn’t allow the lab’s findings as an excuse, Dennie said. “It is a very difficult standard at the
NCAA level where it’s very difficult to overcome positive test results,” Dennie explained.

Email cdennie@bgsfirm.com or visit www.bgsfirm.com. ■

example, if a student-athlete has a criminal violation
or seeks medical help for drugs/alcohol, the revised
Rutgers policy doesn’t trigger any negative actions.

❑ Prepare to handle variables. If a student-
athlete has a drug-use violation and penalties don’t
take effect until after completion of the hearing and
the appeal, a student-athlete might try to delay the
process so he can compete in the meantime. Also
have a plan for handling medical noncounters who
fail drug tests — giving them a standard penalty
of sitting out games won’t impact them because
they’re already not competing due to their injuries,
for example. “If they’re getting money, still getting
benefits, then it’s still a potential PR nightmare, even
if they’re not on the field making plays,” Kuhr noted.

❑ Establish an implementation procedure.
This policy behind the policy should clearly spell out
how, when, on what basis, and with what frequency,
as well as the timeframe for reporting results. It
helps prevent coaches from working the system by
dictating whom they want tested when. Share the
implementation policy with coaches but not with
student-athletes. Don’t include it within your overall
drug-testing policy; otherwise, you’ll be held to it.

❑ Address privacy. When a student-athlete
transfers to another school after being dismissed
for drug violations at your school, coaches might
want to disclose the violations to the other school.
So educate coaches that it would violate the Family
Educational Rights and Privacy Act, placing them-
selves and their schools at risk.

❑ Develop a one-page documentation form.
List every step of the drug-testing/violation process,
including date and time, and who was present along
with their initials. It will prove valuable if questions
arise later. Designate one person (such as the direc-
tor of athletic training) to complete it.

❑ Treat your policy as a living document.
Schedule reviews and updates for every six
months to ensure inclusion of any minor or ma-
jor tweaks, interpretations, and decisions made
along the way.

❑ Establish an appeals process. “The appeals
process is an absolute, absolute must,” Kuhr said.
Appeals must provide due process.

Email pperrier@scarletknights.com or shalini.
shanker@colostate.edu, or visit www.drugfreesport.
com. ■

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Can You Help Me With Homework? Needed By Saturday 4/30/2022 9:00 am

BASIC AND APPLIED SOCIAL PSYCHOLOGY, 1995, 16(1 & 2), 211-225
Copyright © 1995, Lawrence Erlbaum Associates, Inc.

Does the Experience of Organizational
Justice Mitigate the Invasion of Privacy
Engendered by Random Drug Testing?

An Empirical Investigation

Bennett J. Tepper
College of Business and Economics

University of Kentucky

Charles K. Braun
College of Business
Marshall University

This research used theories of organizational justice to develop predictions
regarding employees’ judgments of the invasiveness of random-drug-testing
programs. An investigation with two firms suggested that employees view
random drug testing to be less invasive when they (a) hold management
positions, (b) have been tested for drug use fewer times, (c) perceive the
consequences of testing positive for drug use to be less punitive, and (d)
perceive the drug-testing procedures to be more accurate. Unexpectedly,
however, the perceived danger of impaired performance on the job was
unrelated to the criterion. Implications of the findings for research and
practice are discussed.

The consequences of employees holding negative attitudes toward corporate
drug-testing programs include resentment and antagonism (Greenfield,
Karren, & Giacobbe, 1989), cheating and refusals to take drug tests (Axel,
1990), and reduced performance (Konovsky & Cropanzano, 1991). Given
the proliferation of drug-testing programs and the climate of governmental
support for invasive drug-testing procedures (particularly for employees in
safety-sensitive jobs; Christopher, 1991), surprisingly little scholarly re-
search has explored the attitudes of individuals who undergo random drug
testing. Nevertheless, industry surveys suggest that employees and em-
ployers generally oppose random drug testing (Axel, 1990), and a recent

Requests for reprints should be sent to Bennett J. Tepper, Department of Management,
College of Business and Economics, 355-J B&E Building, University of Kentucky, Lexington,
KY 40506-0034.

2 1 2 TEPPER AND BRAUN

Study suggests that most union members view random drug testing to be a
serious invasion of privacy (LeRoy, 1991).

However, laboratory and simulation studies suggest that individuals’
attitudes toward drug testing depend on contextual characteristics and
characteristics of the program (e.g., Crant & Bateman, 1990; Murphy,
Thornton, & Prue, 1991; Murphy, Thornton, & Reynolds, 1990; Stone &
Kotch, 1989). Employees hold more favorable attitudes toward drug testing
when they experience a sense of organizational justice (i.e., the benefits of
participation in the drug-testing program outweigh the costs and the
drug-testing procedures conform to Leventhal’s, 1980, rules of procedural
fairness; Crant & Bateman, 1989). Hence, it may be speculated that the
experience of organizational justice mitigates the deleterious effects of
random drug testing on employee attitudes (cf. Konovsky & Cropanzano,
1991). Given this issue’s importance for research and for practice, a field
study was undertaken to determine to what extent justice perceptions
attenuate the invasiveness of random-drug-testing programs.

THEORETICAL FRAMEWORK:
ORGANIZATIONAL JUSTICE

Organizational-justice approaches focus on individuals’ reactions to the
experience of distributive justice (i.e., the degree to which outcomes are
fairly distributed) 2ind procedural justice (i.e., fairness in the processes used
to allocate outcomes, and the consistency with which they are applied across
individuals; Leventhal, 1980). Whereas individuals experience distributive
justice when outcomes are more favorably allocated, procedural justice
hinges on the accuracy, consistency, and ethicality of the allocation or
decision-making methods themselves (Greenberg, 1990b). Theory and
empirical research suggest that the experiences of distributive and proce-
dural justice are related to favorable overall attitudes toward a variety of
organizational referents including grievance systems (Gordon & Fryxell,
1989), jobs (Alexander & Ruderman, 1987), pay (Folger & Konovsky,
1989), and performance appraisals (Greenberg, 1986). Extending justice
theory to the present context, it may be predicted that employees who
experience a sense of organizational justice will view random drug testing to
be less invasive than will individuals who do not experience a sense of
organizational justice; that is, organizational justice should mitigate the
invasion of privacy resulting from participation in random drug testing.

ORGANIZATIONAL JUSTICE AND ATTITUDES
TOWARD DRUG TESTING

What factors create the experience of organizational justice in the context
of drug testing? Crant and Bateman (1989) developed a model that explains

RANDOM DRUG TESTING 2 1 3

how the experiences of distributive and procedural justice affect individuals’
attitudes toward drug testing programs. According to the model, distribu-
tive justice is enhanced when individuals believe that the benefits of
participating in the drug testing program outweigh the costs. Organizational
characteristics (e.g., safety, size, interdependency, and performance) and
employee characteristics (e.g., demographic variables, norms and expecta-
tions, and personality variables) determine the extent to which individuals
perceive that drug testing is warranted in a given setting. As examples,
employees are more likely to perceive a need for drug testing when:

1. Safety concerns are prominent.
2. Drug abuse is a problem within the organization.
3. Individuals depend on their co-workers to perform efficiently.
4. The organization has a history of high absenteeism and theft, or low

productivity.
5. Individuals belong to a cohort group that accepts the legitimacy of

drug testing.

Crant and Bateman (1989) went on to argue that the experience of
procedural justice is a function of the drug-testing program itself; fairness
judgments are enhanced when drug-testing procedures conform to
Leventhal’s (1980) rules of procedural fairness: accuracy, correctability,
consistency, bias suppression, and ethicality. As examples, employees are
more likely to hold favorable overall attitudes toward drug-testing pro-
grams when:

1. The drug-testing procedures accurately discriminate users from
nonusers.

2. Individuals who receive treatment or rehabilitation can have their
record expunged.

3. Individuals do not feel that they have been singled out for drug
testing.

4. The consequences of testing positive for drug use are not excessively
punitive.

In the following theoretical analysis, we develop specific predictions
about a subset of variables that are likely to affect perceptions of the
invasiveness of random-drug-testing programs using Crant and Bateman’s
(1989) model as a conceptual foundation.

Factors Affecting Distributive Justice

Job characteristics. Of the contextual variables that determine
whether or not individuals perceive a need for drug testing, perhaps the

2 1 4 TEPPER AND BRAUN

most important is the danger of impaired performance on the job. Most
firms that test for drug use are motivated by safety concerns (Axel, 1990)
2ind the rationale for drug testing should be most apparent to employees in
safety-sensitive positions (i.e., the extent to which impaired performance
could endanger oneself, one’s co-workers, or the public). In two studies of
the acceptability of drug testing in 35 different occupations. Murphy et al.
(1991) found that individuals held more favorable general attitudes toward
drug testing of employees in more safety-sensitive jobs. Hence, although
random drug testing usually engenders perceptions of invasiveness, these
effects should be mitigated by perceptions that impaired performance on
the job could be a hazard to oneself, one’s co-workers, or the public.
Therefore, it may be hypothesized that employees who perceive their job to
be more dangerous will perceive random drug testing to be less invasive than
will employees who perceive their job to be less dangerous (Hypothesis I).

Employee characteristics. Employees are more likely to perceive a
need for drug testing when participation in the drug-testing program is
consistent with accepted ways of thinking and behaving within particular
cohort groups or social contexts (i.e., subjective norms; Crant & Bateman,
1990). For example, in firms where management is responsible for imple-
menting and monitoring the drug-testing program, it is likely that members
of management will hold more favorable overall attitudes toward random
drug testing than will nonmanagers. Therefore, it may be hypothesized that
managers will perceive random drug testing to be less invasive than will
nonmanagers (Hypothesis 2).

Individuals who are hired before drug testing is adopted should view the
implementation of the program as a violation of operating norms, partic-
ularly when the program calls for random drug testing. For these individ-
uals, participation in drug testing may be viewed as an unanticipated cost of
being employed by their firm. In contrast, individuals who are hired after
drug testing is implemented and institutionalized should view random drug
testing as accepted corporate policy and expect to be drug tested. Therefore,
it may be hypothesized that individuals who are hired after random drug
testing has been implemented will perceive the program to be less invasive
than will individuals who are hired before the program is implemented
(Hypothesis 3).

Program Characteristics Affecting
Procedural Justice

This study focused on three characteristics of drug-testing programs that
should have an impact on the experience of procedural justice: (a) the
punitiveness of the consequences of drug detection, (b) the perceived

RANDOM DRUG TESTING 2 1 5

severity of the consequences of drug detection, and (c) the perceived
accuracy of the drug-testing procedures. The following analysis outlines the
manner in which each of these factors affects the experience of procedural
justice and, hence, mitigates perceptions of the invasiveness of random-
drug-testing programs.

Punitiveness of the consequences of drug detection. The conse-
quences of drug detection range in punitiveness from reprimands to
termination and, typically, firms employ more punitive consequences for
multiple violations of the drug-testing policy (Axel, 1990). Consistent with
procedural justice theory and research suggesting that individuals view less
punitive procedures to be more ethical (cf. Leventhal, 1980), Stone and
Kotch (1989) found that blue-collar workers held more favorable attitudes
toward hypothetical drug-testing programs that involved rehabilitation and
counseling rather than mandatory termination. Extending this research to
the present context, it may be expected that individuals will find random
drug testing to be less invasive when the policy gives those who test positive
a “second chance” (i.e., employees are not terminated for testing positive
for drug use on one occasion). Therefore, it may be hypothesized that
employees who cannot be terminated for failing one drug test will perceive
random drug testing to be less invasive than will individuals who can be
terminated for failing one drug test (Hypothesis 4).

Perceived severity of the consequences of drug detection.
Whether or not procedures are fair according to normative standards,
perceptions of procedural justice are likely to engender favorable overall
judgments (Lind & Tyler, 1988; Thibaut & Walker, 1975). In the context of
drug-testing programs, it may be expected that individuals are likely to
experience procedural justice when they perceive that the consequences of
testing positive for drug use are not severe (whether or not the consequences
are viewed as punitive in a normative sense; see Hypothesis 4). Hence, it
may be expected that perceptions of the consequences of drug detection as
less severe will mitigate the invasiveness engendered by random drug
testing. Therefore, extending the arguments developed in Hypothesis 4, it
may be hypothesized that individuals who perceive the consequences of
drug detection to be less severe will find random drug testing to be less
invasive than will individuals who perceive the consequences to be more
severe (Hypothesis 5).

Perceived accuracy of drug-testing procedures. An additional de-
terminant of procedural justice in the context of drug testing is the
diagnostic capacity of the drug-testing procedures (i.e., the extent to which
the drug-testing methods accurately discriminate users from nonusers).

2 1 6 TEPPER AND BRAUN

Consistent with Leventhal’s (1980) accuracy rule of procedural justice,
Gomez-Mejia and Balkin’s (1987) study of human resource executives
suggested that the diagnostic capacity or accuracy of the drug-testing
procedures was related to the acceptability of drug testing. Notwithstanding
the fact that many of the drug-testing methods currently used have serious
measurement problems (from an objective standpoint; Bearman, 1988),
accuracy perceptions may vary widely (cf. Gomez-Mejia & Balkin, 1987),
and a conventional application of organizational justice theory requires
examination of subjective procedural justice (cf. Lind & Tyler, 1988) from
the perspective of those who undergo drug testing. Therefore, this field
investigation tested the hypothesis that individuals who perceive the drug-
testing procedures to be more accurate will perceive random drug testing to
be less invasive than will individuals who perceive the procedures to be less
accurate (Hypothesis 6).

METHOD

Design

The hypotheses were tested with employees from two firms headquartered
in the east: a major air-carrier (employing over 20,(X)0) and a medium-sized
utility (employing approximately 350). As mandated by federal guidelines,
the two firms conducted random drug testing (with no advance notice given)
on dl\ employees in safety-sensitive positions. Each of the drug-testing
programs was approximately 8 years old, and they had changed little since
they were implemented. The two firms tested their employees for drug use
using radio immunoassay, and followed up all positive tests with a more
sensitive method, the gas-chromatography/mass-spectrometry test.

Sampling and Survey Procedure

With the cooperation of the human resource departments at each firm,
survey questionnaires were mailed to a random sample (selected from
company records) of 100 employees at each firm. The target group
consisted of technical/professional and managerial employees who were
subject to random drug testing. The survey was printed on a business reply
form and the respondents were instructed to mail their completed surveys
back to the researchers. A cover letter guaranteed the respondents’ ano-
nymity and informed the participants that their employers would receive
aggregate data summaries only. Of the 200 surveys mailed out, 122 were

RANDOM DRUG TESTING 2 1 7

returned (63 from Firm 1 and 59 from Firm 2; respondents with missing
data were eliminated, producing a total sample size of 108 (58 from Firm 1
and 50 from Firm 2).

Respondent Characteristics

On average, the respondents from Firm 1 were 38.1 years old (SD = 8.56
years), 84.5Vo were male, 96.6<Vo were employed in various technical/
professional occupations (e.g., airline pilot, flight attendant, airplane
mechanic, and customer service representative), and 2 participants de-
scribed themselves as managers. On average, the respondents from Firm 2
were 41.1 years old (SD = 9.76 years), 9O<̂ o were male, and 2O<yo were
employed in a managerial capacity. Eighty percent of the respondents from
Firm 2 were employed in various technical/professional positions (e.g.,
chemical analyst, laboratory technician, and engineer), and 10 participants
described themselves as manager.

Measures

Because the issues addressed by the survey were extremely sensitive, the
firms required that the questionnaire be as short and innocuous as possible.
Within those constraints, and the need to develop psychometrically sound
measures for the hypothesis tests, a one-page survey questionnaire was
constructed.

Criterion: Invasiveness perceptions. Three items, taken from Stone
and Kotch (1989), assessed the respondents’ judgments of the invasiveness
of their drug-testing program: “Employee privacy is invaded by the way my
company conducts drug testing,” “The drug testing policy in my company is
an invasion of privacy,” and “I believe that my firm’s drug testing policy
violates employee rights.” The 7-point response scale ranged from strongly
disagree (1) to strongly agree (7). The alpha internal-consistency reliability
coefficient for this measure was .93 in Firm 1 and .89 in Firm 2. The means
for the participating firms were 12.19 (SD = 6.83) for Firm 1 and 9.38 (SD
= 6.30) for Firm 2; these two means differed significantly, /(106) = 2.21,

p < .05, suggesting that the individuals from Firm 1 perceived their
drug-testing program to be more invasive than did the individuals from
Firm 2. However, removing the managers from the analysis revealed no
differences between Firm i (n = 56, M = 12.32, SD = 6.84) and Firm 2 (n
= 40, Af = 10.33, SD = 6.47), r(94) = 1.44, ns, suggesting that the
differences in perceived invasiveness for the total sample may have arisen
from the disproportionate number of managers who were tested for drug
use in Firm 2.

2 1 8 TEPPER AND BRAUN

Predictors. Tenure was coded as follows: 1 = joined the firm after the
drug testing policy had been implemented; 2 = member of the firm when
drug testing was implemented. Managerial status was coded as follows: 1 =
nonmanager; 2 = manager. The measure of the punitiveness of the
consequences of drug detection asked the participants to indicate the
consequences of testing positive for drug use once, twice, and three or more
times. Scores were coded as follows: individuals who could be terminated
for testing positive once were given a score of 1 (AI = 21 in Firm 1 and n =
1 in Firm 2), whereas those who could be terminated only after two or three
positive drug tests received a score of 0 (n = 37 in Firm 1 and w = 43 in
Firm 2).

Single-item measures assessed the employees’ perceptions of the (a)
diagnostic capacity of their firm’s drug-testing procedures, (b) the severity
of the consequences of drug detection, and the danger of impaired
performance to (c) oneself, (d) one’s co-workers, and (e) the public (scores
on the last three items were summed to form an oversill measure of
perceived danger). The perceptual items consisted of detailed definitions of
the construct being assessed (i.e., accuracy, severity, or danger), followed
by 9-point bipolar response scales. For accuracy, the scale ranged from very
inaccurate (1) to very accurate (9); for severity, from not at all severe (1) to
very severe (9) and for danger, from not at all dangerous (1) to very
dangerous (9). The participants were instructed to circle the number (from
1 to 9) corresponding to their perceptions. The alpha internal-consistency
reliability coefficient for the perceived danger measure was .83.

Control variables. Two variables likely to covary with invasiveness
judgments, age and the number of times the respondent is tested for drug
use, were measured in this study. According to Crant and Bateman (1989),
older individuals are likely to have more favorable attitudes toward drug
testing. Additionally, it may be expected that individuals who have under-
gone more drug tests are likely to feel that the program represents a greater
invasion of privacy than individuals who have undergone fewer drug tests.

Check For Response Bias

Because method variance can have a dramatic effect on relations between
perceptual and affective measures, a check on this potential bias was
undertaken. Harman’s (1976) single-factor test was used to analyze the
participants’ responses to all the perceptual measures employed in this study
(i.e., invasiveness judgments, perceived accuracy, perceived danger, and
perceived severity) to determine whether a common-method factor might
account for relations obtained between the predictors and the criterion. The
existence of a common-method factor was not apparent in the unrotated

RANDOM DRUG TESTING 2 1 9

factor structure or in subsequent analyses of higher order factors. Hence, it
does not appear that common-method bias produced artifactual relations
between the perceptual variables employed in this study (Podsakoff &
Organ, 1986).

RESULTS

Table 1 presents the means and intercorrelations for the study variables.
Invasiveness perceptions correlated negatively with perceived accuracy (r =
– .34, p < .01) and positively with perceived severity (r = .53, p < .01).
Hence, employees perceived random drug testing to be less invasive when
they perceived the drug-testing procedures to be more accurate and when
they perceived the consequences of drug testing to be less punitive. Echoing
the findings for perceived severity, the punitiveness of the consequences of
drug detection correlated positively with invasiveness (r = .22, p < .05),
suggesting that individuals who would receive a second chance after failing
a drug test perceived random drug testing to be less invasive. Additionally,

TABLE 1
Descriptive Statistics and Intercorrelations for Study Variables

Correlations

Variable M SD 1 2 3 4 5 6 7 8

1. Invasiveness 10.89 6.71 –
2. Age 39.48 9.17 – . 1 3
3. Number of

times tested 1.84 1.40 .24* – . 2 7 * *
4. Tenure’ 1.77 0.42 .16 .19* .14
5. Managerial

status” 1.11 0.32 – . 2 5 * * .27** – . 1 1 – . 0 2 –
6. Consequences” 0.26 0.44 .22* – . 1 6 .36** .07 – . 0 7
7. Perceived

severity** 5.77 3.03 .53** – . 1 3 .29** . 0 4 – 2 9 * * .30**
8. Perceived

danger’ 21.91 6.92 .12 – . 1 3 .15 – . 0 7 – . 1 3 .00 .08
9. Perceived

accuracy^ 6.44 2.42 – . 3 4 * * .24* – . 0 2 – . 1 6 .10 – . 2 0 * – . 2 8 * * – . 0 5

‘ I = hired after drug-testing program was implemented; 2 = hired before drug testing was
implemented. ”I = nonmanager; 2 = manager. “0 = individual could not be terminated after
one positive drug test; 1 = individual could be terminated after one positive drug test. **Refers
to the perceived severity of the consequences of drug testing. ‘Refers to the perceived danger
of impaired performance in one’s own job. ^Refers to perceptions that the drug-testitig
procedures accurately discriminate users from nonusers,

*p < .05. **p < .01.

2 2 0 TEPPER AND BRAUN

invasiveness correlated negatively with managerial status (r = – .25, /? <
.01) and positively with the number of times tested for drug use (r = .24,
p < .05), suggesting that managers viewed random drug testing to be less
invasive than did nonmanagers, and individuals who had been tested for
drug use more times viewed random drug testing to be more invasive than
did individuals who had been tested fewer times. Age, tenure, and perceived
danger were unrelated to invasiveness.

Although the bivariate relations are consistent with several of the
hypotheses, more conservative analytical procedures were undertaken to
determine the relative predictive power of the independent variables.
Hierarchical regression equations were constructed in which the two control
variables (age and the number of times tested for drug use) were entered
first, the three distributive justice variables (tenure, managerial status, and
perceived danger) were entered at the second step, and the three procedural
justice variables (punitiveness of the consequences of drug detection,
perceived severity of the consequences of drug detection, and the perceived
accuracy of the drug-testing procedures) were entered at the third step.
This order of entry follows the convention in the organizationail justice
literature of examining the incremental contribution of procedural justice
variables after controlling for the effects of distributive justice and control
variables.

The hierarchical regression results shown in Table 2 indicate that the
overall regression equation accounted for a substantial proportion of the
variance in invasiveness perceptions: R^ = .35,/? < .01. Parenthetically, it
should be noted that separate analyses for the two participating firms
revealed findings similar to those obtained with the combined sample. The
regression equations accounted for 33% (p < .01) of the variance for the
first firm and 43% (p < .01) of the variance for the second firm. Moreover,
applying the beta weights from the first firm to the variables in the second
firm, and vice versa, produced only a modest drop in the variance
accounted for by each equation: R^ = .22, p < .05, in the first firm and R^
= .32, p < .01, in the second firm.

As Table 2 shows, one of the control variables entered at the first step,
the number of times tested for drug use, accounted for a significant
proportionof the variance in invasiveness judgments: beta = .211 ̂ p < .05.
The sign on the beta weight suggests that individuals who had been tested
for drug use more times judged their program to be more invasive.

Only one of the distributive justice variables entered at Step 2 obtained a
significant regression weight: managerial status, with a beta weight of
– .212 (p < .05). The sign on the beta weight suggests that managers
perceived their drug-testing program to be less invasive than did
nonmanagers (supporting Hypothesis 2). Tenure and the perceived danger

RANDOM DRUG TESTING 2 2 1

TABLE 2
Hierarchical Regression Results

Step and Predictors

Step 1
Number of times tested**
Age”

Step 2
Tenure’*
Managerial status’
Perceived danger*^

Step 3
Consequences of drug detection”
Perceived accuracy”
Perceived severity’

Beta’

.217*
– . 0 7 3

.148
– . 2 1 2 *

.065

.148
– .296**

.411**

Increment R^

06*

07*

22**

Total R^

06*

13*

35**

Note. For the full solution (three steps), FXS, 99) = 6.75, p < .01.
‘Larger beta weights indicate greater invasiveness. ”Larger beta weights indicate greater

number of drug tests taken. ‘̂ Larger beta weights indicate older age. ^̂ l = hired after
implementation; 2 = hired before implementation. ‘1 = nonmanager; 2 = manager. “̂ Larger
beta weights indicate greater perceived danger. “Larger beta weights indicate more punitive
consequences. ”Larger beta weights indicate greater perceived accuracy. ‘Larger beta weights
indicate greater perceived severity.

*p < .05. **p < .01.

of impaired job performance did not significantly affect invasiveness
judgments. Hence, Hypothesis 1 and 3 were not supported.

At the third step, the punitiveness of the consequences of drug detection
did not account for a significant proportion of the variance in invasiveness
perceptions after entering the control variables and the distributive justice
variables (at Steps 1 and 2, respectively). Hence, Hypothesis 4 was not
supported. However, perceived severity and perceived accuracy obtained
significant beta weights. The sign on the regression weight for perceived
severity (beta = .411, /? < .01) suggests that employees who perceived the
consequences of drug detection to be less severe perceived random drug
testing to be less invasive (supporting Hypothesis 5). The negative sign on
the regression weight for perceived accuracy (beta = – . 2 9 6 , p < .01)
suggests that employees who perceived the drug-testing procedures to be
more accurate perceived random drug testing to be less invasive (supporting
Hypothesis 6).

DISCUSSION

This research extends the literature by examining actual employees* percep-
tions of the invasion of privacy stemming from participation in random-

2 2 2 TEPPER AND BRAUN

drug-testing programs. Based on previous research suggesting that the
experiences of distributive justice and procedural justice mitigate the
negative effects of random drug testing on participants’ attitudes, six
determinants of justice were investigated. As predicted, drug testing was
viewed as less invasive by managers, by individuals who perceived the
consequences of testing positive to be less severe, and by individuals who
perceived the drug testing procedures to be more accurate. Additionally,
individuals who had been tested fewer times perceived drug testing to be less
invasive.

The findings for managerial status are consistent with research suggesting
that individuals are more committed to corporate policies that they are
responsible for implementing and monitoring (cf. Staw, 1981). Future
research should explore conditions under which managers’ and employees’
perceptions are likely to converge. For example, it may be expected that
invasiveness perceptions are less divergent when drug testing is implemented
at the request of the employees or when the terms of the policy are
negotiated with union leadership (cf. LeRoy, 1991).

The results for perceived severity and perceived accuracy are encouraging
because they suggest that the growing literature on procedural justice has
implications for predicting individuals’ attitudes toward drug testing in the
workplace. The finding for perceived severity suggests that employee’s
subjective assessment of program punitiveness is related to their attitudes.
The finding for perceived accuracy suggests that, even when the same
methods of drug detection are employed across individuals, considerable
variance in accuracy perceptions may be observed (see Table 1) and that
these perceptions are likely to covary with perceptions of invasiveness.
Additional research will be needed to determine how and why validity
perceptions vary across individuals and what kinds of interventions may be
useful in effectively informing employees of the accuracy of the procedures
that most firms use.

Invasiveness perceptions were unrelated to age, tenure, the punitiveness
of the consequences of drug detection, and the perceived danger of
impaired job performance. The finding for perceived danger is perhaps the
most surprising null result obtained here, although it confirms Murphy et
al.’s (1991) speculation that general attitudes toward invasive drug-testing
programs may be more favorable than individuals’ attitudes toward their
own drug-testing program.

From a practical standpoint, these findings suggest that implementation
efforts should focus less on the safety-sensitive nature of jobs and more on
individuals’ perceptions of procedural justice. Particularly in firms that
employ highly accurate (and costly) drug-testing procedures (e.g., gas
chromatography/mass spectrometry) and in firms that have implemented
comprehensive rehabilitation and employee assistance programs, morale

RANDOM DRUG TESTING 2 2 3

may be expected to increase if the work force is aware of the firm’s
commitment to enhancing procedural fairness (Greenberg, 1990a). Given
the extent to which accuracy and severity perceptions may vary (whether or
not the drug-testing procedures and the consequences of drug detection vary
in an objective sense), firms can expect resentment to vary accordingly,
particularly among nonmanagers.

Our study is not without limitations. By necessity, the perceptual
measures of accuracy and severity were single-item scales. Additionally, the
total sample consisted of only 108 individuals, even though the participating
firms employed several thousand (in the case of the airline) and several
hundred (in the case of the utility). It was encouraging, however, that
cross-validation showed the findings to be reasonably robust across firms.
Moreover, the fact that the two samples differed significantly in terms of
invasi