Vol. 4, No. 10 (October, 1994)

SURVEILLANCE, PRIVACY, AND THE LAW: EMPLOYEE DRUG TESTING AND THE POLITICS OF SOCIAL CONTROL by John Gilliom. Ann Arbor: The University of Michigan Press, 1994. 192 pp. Cloth $29.95.

Reviewed by Michael Kalmes, Division of Social Sciences, Concordia College, Ann Arbor, Michigan

Like other books focusing on legal definitions of rights (I am thinking especially of Kristin Bumiller s CIVIL RIGHTS SOCIETY), John Gilliom shines a light on a small body of fact to explore in the emanating penumbras much larger issues in legal theory. Combining the results of a survey of a single group of union members about drug-testing issues with an examination of federal court decisions on drug testing, he makes two arguments. The first contends that the dominance of legal-rights definitions in disputes over drug-testing in the workplace limits, by narrowly confining the discussion of the issue, examination of the underlying social control that inspires drug-testing. The second suggests that court cases, especially at the Supreme Court level, validate what Gilliom terms Super Vision, the desire of corporate and political leadership to control populations by keeping them under constant, crisis-driven surveillance.

To make the first argument, Gilliom develops a line of evidence that the 1986 War on Drugs, was, to put it charitably, an over-reaction to the existing data on national drug use. He points out that the available data from the National Institute on Drug Abuse (even though it included marijuana use which Gilliom does not consider in the same class as crack addiction) showed that in 1986 illicit drug use was at its lowest point in a decade. Nevertheless, in response to what Gilliom argues was a manufactured crisis, President Reagan and his administration called for mandatory drug testing and governmental and private employers across the nation initiated programs to implement the call, reinforced by lurid stories of drug abuse -- for example, the deaths of famous athletes like Len Bias and Don Rogers -- presented in leading news sources. Gilliom does not argue that there was no drug abuse problem whatever, but he questions whether the media image of drug use matched the reality sufficiently to justify the political reaction that led to the war. He offers the alternative explanation that the Reagan administration was responding to the moral agenda of the New Right coalition that created the social and ideological foundation of the antidrug movement (30) which was largely responsible for the Republicans electoral success in the 1980s. Dominated by corporate as well as religious values, this coalition, Gilliom argues, supported policies that emphasized personal responsibility for all acts and thus stressed changing individual wills ( just say no ) as the solution to social problems. Drug abusers had to receive severe and immediate punishment -- loss of employment for drug use whether on or off the job, for example -- that would discourage them from further deviant behavior. The resulting culture of punishment, Gilliom concludes, with its emphasis on surveillance, strict rules of behavior, and collectively-

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enforced personal discipline was more responsible for the crisis that led to the drug war in the 1980s than any real increase in drug abuse in the nation.

Gilliom buttresses this conclusion by analyzing the arguments and statements of both testing employers (Chapter 3) and tested employees (Chapter 4). After presenting the main argument of employers -- that a safer, more productive and thus more profitable workplace made the invasive nature of drug testing acceptable -- Gilliom uses OSHA data and the actual results of drug testing programs to show that a) drug testing has a negligible effect on workplace safety and productivity and b) drug abuse in the workplace simply was not as big a problem as claimed by those who called for mandatory drug testing. For example, he shows that several random testing programs had no more than 0.6 to 0.7 percent positives for illicit drug use (42- 43) even though Reagan administration officials claimed that one- fifth or more of American workers were on drugs (42). He also presents information that drug testing is very expensive and has not been linked to either improved safety or productivity; many claimed improvements prove to be the result of other programs. While some of the evidence he presents is secondhand (he quotes some studies through secondary sources), Gilliom s argument is persuasive. Logically, employers could typically eliminate unsafe and unproductive workers through much less expensive and controversial means than random mandatory drug testing. Given that managers are smart people interested in saving money, why would they be in favor of such inefficient means of gathering information, he asks.

Since, as he sees it, there was no marked change in drug use in the mid-1980s and testing had limited economic advantages, Gilliom develops a Foucaultian explanation for the rise of testing: corporate managers, believing that workers were the cause of all workplace problems, sought ways to control workers and themselves avoid regulatory schemes like OSHA that sought to control. Citing Foucault and others, Gilliom places workplace drug testing within the historical development of social control: the increasing bureaucratization of scientific monitoring techniques to control not just deviant behavior, but even the normal lives of people. The problem with Foucaultian analysis, of course, is that shadowy networks of social control are easy enough to posit but hard to prove empirically. So Gilliom turns to two sources of data he hopes will illuminate the shadows: the attitudes of tested union laborers and the decisions of the courts. He looks especially at the what Foucault terms formal right or the appeal to legal protection when faced with disciplinary power backed by scientific knowledge.

Depending on the results of an open-ended survey of a single union local (N=2,167) to investigate workplace testing is undoubtedly one of the surest ways to start social scientists complaining about a lack of illumination, but Gilliom anticipates most objections in an extended methodological appendix. He makes no global claims. He uses the survey strictly to test the plausibility of Foucault s prediction that, faced with a network of social control, workers will tend to defend themselves by an appeal to formal rights. He does not do much data analysis, restricting himself primarily to percentages

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and correlations, but the nature of the data and his purpose in using it are limited. Among those workers who oppose indiscriminate testing (67%) the overwhelming majority (84%) of respondents did, in fact, express their opposition to testing in terms of constitutional or legal rights in the open-ended portion of the survey (72-73), though, when prompted to think about it, 54% saw workplace control as among the important reasons for their opposition (80). Two other interesting results appear from the survey. One indirectly measures the power of leaders to define issues: fully 79% agreed that there was a national drug crisis (though only 26% agreed that there was a drug problem in their particular workplace) and as many as 56% supported some form of drug testing (though only 24% supported random testing in their workplace). The other shows demonstrates the power of workplace concerns to overcome national ones: of those supporting testing, 65% cited safety as their prime worry with the general drug problem coming in a distant second (69). In terms of survey research, these data are interesting but not conclusive in the absence of a randomly drawn national sample. Nevertheless, though his survey cannot conclusively prove Gilliom s thesis, it does not contradict it either. The work does suggest a fruitful direction to turn to shed more light on the matter.

Gilliom s final argument concerns the courts: he claims that new court decisions, especially from the Supreme Court, validate mechanisms of discipline, not rights claims against those mechanisms. Concentrating on SKINNER v. RAILWAY LABOR EXECUTIVES ASSOCIATION, 489 US 602 (1989), he develops the issues surrounding due process as applied to drug testing cases in lower courts, much of which will be familiar to readers of law reviews. SKINNER did indeed broaden the reach of government drug testing by authorizing post-accident urine testing of rail workers. The major conflict in SKINNER is, unfortunately, somewhat removed from the general workplace that he describes in his survey work: Justice Kennedy frames the issue as one of administrative necessity to maintain safe trains on the part of the Department of Transportation against the privacy claims of rail workers. Because it involves national executive administration, the conflict thus involves special circumstances unrelated to a typical workers situation. On the whole, however, Gilliom does incisively bring his Foucaultian analytic framework to bear on the cases -- Justice Kennedy s opinion in SKINNER does emphasize that increased surveillance of workers will deter them from using drugs. I found this section the most disappointing part of the book. There is an extensive literature on search-and-seizure law into which the drug-testing cases he examines could have been placed to examine broader questions of surveillance and there are many potentially related state cases, but he keeps the light narrowly focused on drug testing.

Given what it attempts to do, SURVEILLANCE, PRIVACY, AND THE LAW is a useful book. It is clearly written and, unlike many books on rights issues, analyzes more data than just court opinions. Gilliom uses that data to run what amounts to a clever, if narrow, test of the otherwise difficult and intriguing ideas of Michel Foucault on surveillance and punishment -- the primary contribution of the book. He is

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familiar with a broad literature in both law and political science that he uses to enlighten the reader. On the other hand, the book has a sense of tentativeness about it, as if it were the trial run for a broader effort to test Foucault s ideas in the real world. Readers coming to this book seeking an advocacy argument on workplace drug testing or a thorough analysis of the current legal status of workplace testing will be disappointed, but readers looking for ways to cast new light on a dark subject will find it of value.

REFERENCE

Bumiller, Kristin. 1988. THE CIVIL RIGHTS SOCIETY. Baltimore: Johns Hopkins University Press.