When the United States became a nation more than 200 years ago, the Founders formulated
a Constitution that structured the new society as a majoritarian democracy. They later
added a Bill of Rights to protect individuals from the tyranny of the majority. But in the
18th century, when the Constitution and Bill of Rights were ratified, government was
viewed as the only major threat to individual rights. The Founders could not have imagined
back then that, one day, concentrations of corporate power would exist on a scale
rivaling, and in some cases exceeding, governmental power.
Today, most Americans are more vulnerable to having their rights violated by their
employers than the early Americans were to having their rights violated by the government.
Yet because the Constitution does not limit their authority, private employers are free to
violate the civil liberties of their employees. Nationwide, the ACLU receives more
complaints about abuses by employers than about abuses by the government:
- In California, Sibi Sorkoa was denied a job because he refused to answer questions about
his sex life on a "psychological test." At least two million job applicants are
required to take such tests every year.
- In Pennsylvania, George Geary was fired because he pointed out serious safety defects in
his employer's products. At least 200,000 Americans are unjustly fired every year.
- In Indiana, Janice Bone was fired because she smoked cigarettes in her own home. At
least 6,000 American companies now attempt to regulate offduty smoking and other private
The American Civil Liberties Union believes that such abuses can only be prevented by
extending, into the private workplace, the protections guaranteed in the Bill of Rights.
Certainly, we recognize that employers have every right to expect workers to do their
jobs. But employees are also entitled to the same freedoms on the job that they enjoy off
Here are the ACLU's answers to some questions frequently asked by the public about the
rights of American employees.
Q: If the Constitution doesn't apply to the private workplace, what does?
A: The vast majority of American employees, of whom there are 60 million in all, are
governed by a doctrine called "employment at will." This doctrine, a relic of
19th century antilabor laws, gives employers the unfettered right to fire workers at any
time, for any reason, whether grave or frivolous. Indeed, one can be fired for no reason
at all. An estimated 200,000 employees, at least, are unjustly fired in the United States
It is the prevalence of the employmentatwill doctrine that empowers employers to impose
unwarranted urine tests and intrusive "personality" and "integrity"
tests on their employees. The power to fire at will permits employers to suppress their
employees' right to free speech.
Q: Are there any laws that protect employees' rights?
A: There are federal and state laws that prohibit discrimination against individuals on
the bases of race, religion, sex, national origin, age and disability. However, these laws
require only that employees be treated equally. Employers are, therefore, free to do
whatever they wish to their employees as long as they do so in a nondiscriminatory manner.
A few other federal and state laws provide some protection against specific abuses,
such as urine testing, polygraph testing and retaliation against whistle blowers. But
these laws are extremely limited. The fundamental human rights of free expression, privacy
and due process are still largely unprotected in the American workplace.
Q: Does the employmentatwill doctrine apply to all employees?
A: No. There are three broad categories of employees who are not governed by
Government employees: Federal, state and local government workers are protected by
the Fifth and Fourteenth Amendments, which prohibit the government from depriving any
person of "life, liberty or property" without due process of law. These
employees are considered to have a property interest in their jobs, and the right to due
process places significant restrictions on arbitrary dismissals unrelated to job
performance. Some additional protection is provided by federal, state and local civil
Union members: Virtually all collective bargaining agreements between labor unions
and employers stipulate that unionized employees can be fired only for just cause, and
only after a hearing before a neutral arbitrator. However, less than 20 percent of
American workers belong to unions today, since union membership has been declining for
Contract employees: Senior executives, academics, performers, athletes and some
other wellsituated employees, whose numbers are so small as to be insignificant, work
under individual employment contracts that provide protection against unjust dismissal.
Q: What can be done about the problem of unjust dismissals?
A: The ACLU believes that the outmoded and unfair employmentat will doctrine should be
abolished. Over the years, the many attempts made to challenge employmentatwill in the
courts have produced a few narrow exceptions to the rule, but these exceptions have helped
very few of the people unjustly fired from their jobs. The ACLU and other organizations
advocating employee rights are actively promoting, in state legislatures, model statutes
that encompass the following basic principles:
Employees can be fired only for just cause.
"Just cause" means that: the employee's offense adversely affected his or her
job performance; the rule or standard violated by the employee was known to the employee;
and the infraction was serious enough to warrant termination.
Every employee faced with termination is entitled to a hearing that includes the right
to confront witnesses, the right to present evidence, the right to have adequate
representation (either an attorney or other type of counsel), and the right to an
Q: Can employers legally search their employees' lockers, desks and uring looking for
A: The Fourth Amendment, which protects the privacy of citizens from "unreasonable
searches and seizures," gives some protection to public sector employees against
their employers' prying eyes. In general, a government employer cannot search the person
or belongings of an employee in the absence of any suspicion that the particular employee
has done something illegal. With respect to urine testing for drugs, however: The U.S.
Supreme Court has ruled that government employees can be required to take such tests, even
if the employer does not suspect drug use, if the person's job is "safety
sensitive," or involves carrying a weapon or having access to classified information.
(See ACLU Briefing Paper #5, "Drug Testing in the Workplace.")
Private sector employees, on the other hand, have virtually no protection against even
the most intrusive practices. In all but a handful of states, an employee can be required
to submit to a urine test even where nothing about the employee's job performance or
history suggests illegal drug use. If the employee refuses, he or she can be terminated
without legal recourse. Employees can be subjected to "sniff" searches by dogs
and searches of their lockers, desks, purses, and even their cars if they park in the
company parking lot. Both job applicants and employees can be required to answer extremely
intrusive questions about their private lives and personal beliefs on
"psychological," "personality" and "integrity" tests.
The advent of computer technology has made possible even more sophisticated forms of
spying in the workplace. More and more employees are being subjected to electronic
surveillance through video display terminals, observation by hidden cameras installed in
work areas and locker rooms, and monitored telephone calls. With few exceptions, these
increasingly widespread practices are legal.
Q: What can be done to protect the privacy rights of employees?
A: The ACLU believes that both state and federal legislation should be enactedto extend
privacy rights to private sector employees.
In recent years, some positive strides have been made. In 1988, Congress passed the
Employee Polygraph Protection Act, which ended decades of "lie detector" abuse
in the private workplace. The Act outlaws most random and preemployment polygraph testing,
which in past years had led to an estimated 300,000 workers per year being branded liars.
(See ACLU Briefing Paper #4, "'Lie Detector' Testing.")
Several states Connecticut, Iowa, Maine, Minnesota, Montana, Rhode Island and Vermont
have enacted legislation that protects employees from indiscriminate urine testing. Two
states Massachusetts and Rhode Island restrict "paper and pencil honesty" tests.
Connecticut is the only state that has a law prohibiting "electronic surveillance,
including video surveillance, of any area designed for the health and comfort of employees
or for safeguarding of their possessions."
The ACLU has developed model statutes to protect employees from unfair urine testing
and electronic surveillance, and is actively lobbying for their passage in state
legislatures throughout the country. The ACLU is also urging Congress to amend the
Employee Polygraph Protection Act to cover so called paper and pencil
Q: Can employers discriminate on the basis of employees' lifestyles?
A: One of the emerging issues in the American workplace is the attempt by employers to
control certain private habits and proclivities of their employees that have no
relationship to job performance. Fat people are victims of lifestyle discrimination, and a
growing number of companies are refusing to hire smokers even those who smoke only in
their homes. A few employers exclude people with high cholesterol levels, or high blood
pressure, and those who engage in such risky hobbies as scuba diving and hang gliding.
Others impose lifestyle restrictions: One Oregon company bars workers who fail to
participate in the company's exercise program from attending company picnics; a
Pennsylvania company prohibits its managers from riding motorcycles!
The driving force behind this trend is economics: Employers concerned about the
escalating costs of employee health insurance are attempting to cut costs by firing and/or
refusing to hire people whose lifestyles appear to place them at risk of illness or
injury. But if reducing health care costs is accepted as a legitimate reason for employers
to regulate the offthejob conduct of their employees, then virtually every aspect of our
private lives could be subject to employer control. This would be Big Brotherism at its
Q: What can be done to prevent lifestyle discrimination?
A: The ACLU believes that, just as legislation has been needed to prevent other
violations of civil liberties in the workplace, legislation is also necessary to prevent
lifestyle discrimination. Just as federal, state and local laws exist to prohibit
employment discrimination based on race, gender, ethnicity, religion and, in some places,
sexual preference, new laws are needed to protect against discriminatory practices based
on employees' private lifestyle preferences and habits.
Fourteen states have recently enacted laws that restrain employers from prohibiting
legal activities as a condition of employment. For example, Colorado law makes it "a
discriminatory or unfair employment practice for an employer to terminate the employment
of any employee due to that employee's engaging in any lawful activity off the premises of
the employer during nonworking hours...." Other states are considering bills that
prohibit employment discrimination based on offduty smoking. The ACLU supports these
Q: Should employers ever have the right to discipline their employees?
A: Absolutely. Employers have the right to expect an honest day's work for a day's pay.
They have the right to expect that their workers will not be drunk, drugged, or too
fatigued to perform their jobs. They have the right to set performance standards and
expect those standards to be met. They also have the right to discipline and dismiss
employees for just cause.
Even if all the protective laws described in this briefing paper were passed in every
state, employers would still retain the right to discipline and dismiss any employee whose
job performance was lacking.
Q: But wouldn't recognition of civil liberties in the workplace damage the American
A: There is no conflict between free enterprise and civil liberties in the workplace.
Free enterprise should not be taken to mean that every corporation is a sovereign republic
unto itself, whose only law is the whim of the current CEO. Employers must be free to
decide what products to make (or stop making), what factories to operate and where to
locate those factories, what prices to charge, and how many workers to hire. But they can
make such decisions without trampling on their employees' rights to free speech, privacy
and due process.
The fact is that employers in most other Western industrialized nations, as well as in
Japan, are required by law to respect the rights of their employees. Nonetheless, those
employers' businesses survive and prosper. Moreover, several American employers, including
some of the nation's most successful corporations, already guarantee their employees'
civil liberties without affecting the bottom line of profits. Those employers believe that
respecting employees' rights boosts morale and, thus, raises corporate performance.
It is ironic that the United States, with its long professed respect for individual
rights, has not yet extended Bill of Rights protections to the largest remaining group of
forgotten citizens American workers. It is time to right that wrong.
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