Nearly everyone knows the war on drugs is a bad idea at this point, but employers—from the NBA to Walmart—still think smoking marijuana should be a fireable offense. And as usual, it's corporate America's vote that counts.
Photo via Flickr user Keith Allison
JR Smith isn't like you or me, because he's very good at basketball—so good, in fact, that he gets a lot of money to play the game for the New York Knicks. Last season he won the sixth man of the year award while burnishing his reputation for being TMZ fodder whenever he stepped off the court. In January, he crudely propositioned a high school student via Twitter with the line, “You trying to get the pipe?“; during the playoffs no less a personage than Rihanna said he partied too much. Previously, he tweeted a photo of “the girl with the biggest ass ever“ lying in his hotel bed (she turned out to be the on-again off-again girlfriend of rapper Joe Budden), and more seriously, back in 2009 he killed his friend in a car accident and spent 30 days in jail for reckless driving.
In a turn of events that came as a surprise to absolutely no one, Smith recently got suspended for five games for failing a drug test (the fourth such test he’s flunked) and violating the NBA’s substance abuse policy. Though what exactly he tested positive for hasn’t been publicly confirmed, the scuttlebutt is that they detected marijuana in his system.
It’s understandable that the league would want to keep its players away from performance enhancing drugs, but why shouldn’t Smith be allowed to smoke weed? He’s not in charge of the nation’s nukes; he just shoots a basketball in front of tens of thousands of people about 80 times a year. But many, many people have to deal with the same kind of intrusive testing he does. Actually, the fact that Smith has to worry about fucking up a drug test is one of the only things he has in common with the majority of non-NBA Americans.
If you’re applying for a job, odds are you’re going to have to take some type of drug test, and you may have to keep on taking them to maintain employment. A 2011 report from the Society for Human Resource Management said that 57 percent of businesses required all job candidates to pass drug tests, and another 10 percent tested candidates for selected positions.
The businesses that test range from those paying supremely talented athletes to kick and fling various balls to those paying teens and seniors minimum wage to wear khaki and stock the shelves of a mega-store squatting in some immense parking lot. Everyone except your steak-brained uncle who won’t stop forwarding you emails about Obama knows that the war on drugs is a bad idea by now—even televangelist Pat Robertson wants to legalize marijuana—but corporate America wants to keep their employees drug free, and as usual, it’s their vote that counts.
Take the case of Brandon Coats, a 33-year-old who used to work as a telephone operator for Dish Network in Colorado until he was fired for failing a drug test in 2010. This was a random test, just like the one that ensnared JR Smith—Dish didn’t consider him to be some kind of slack-jawed, drug-sucking fiend who needed to be monitored, he just got unlucky.
What makes this particularly unjust is Coats has had a prescription for medicinal marijuana since 2009 to deal with the effects of a car crash that left him partly paralyzed. He sued to get his job back but lost, and the court of appeals in Colorado (where, as you’re probably aware, pot is legal) recently upheld the ruling, stating, “For an activity to be lawful in Colorado, it must be permitted by, and not contrary to, both state and federal law.”
So when state law conflicts with rules set up by employers, business will trump government. Cool. Here’s how the Manufacturers Alliance for Productivity and Innovation, an organization for manufacturing executives, explains the confusing legal conflicts like this:
“The Colorado law—specifically Amendment 64 to Article 18 of the state constitution—prohibits employers from terminating employees for engaging in lawful activities (marijuana possession and use) off the employer’s premises during nonworking hours unless the employer’s decision relates to a bona fide occupational qualification, the employee’s specific duties, or the employer’s efforts to avoid a conflict of interest. However, the Colorado law expressly states that marijuana legalization does not affect the right of employers to maintain a drug-free workplace.” (Emphasis mine.)
The same rules generally apply in Washington, the other state to have fully legalized weed. In 2011, the state supreme court ruled against a woman working as a customer-service rep who was fired for failing a test even though she was taking medicinal marijuana to treat migraines, and even though she had told them she was taking marijuana.
The Office of National Drug Control Policy has argued for drug testing by saying, “The consequences of illicit drug use in America’s workforce include job-related accidents and injuries, absenteeism, health care costs, and lost productivity,” which may be true. But the system doesn’t go after those whose blood is 37 percent Glenfiddich, while it does target those who occasionally take a toke after a long day of listening me complain about my TV's satellite signal going down every time my neighbor barbecues. Nor does that argument address the reality that people can get fired for using legal drugs, now that marijuana is being decriminalized in many places across the country.
Beyond the ludicrousness of a company kicking an employee to the curb for using a legal, even medicinal substance, these tests might not even work. As Jacob Sullum wrote in the libertarian magazine Reason a decade ago:
“‘Despite beliefs to the contrary,’ concluded a comprehensive 1994 review of the scientific literature by the National Academy of Sciences, ‘the preventive effects of drug-testing programs have never been adequately demonstrated.’ While allowing for the possibility that drug testing could make sense for a particular employer, the academy's panel of experts cautioned that little was known about the impact of drug use on work performance. ‘The data obtained in worker population studies,’ it said, ‘do not provide clear evidence of the deleterious effects of drugs other than alcohol on safety and other job performance indicators.’” (Emphasis mine,)
Testing levels nationally have actually dropped over the last few years, from a high of 84 percent in 2006, but the next testing regime is on the horizon: Republicans in many state legislatures are trying (with a serious nudge from big pharma lobbyists) to push through bills written by the American Legislative Exchange Council (ALEC), a conservative think tank, that would require drug tests for welfare and unemployment benefits recipients. One such measure was declared unconstitutional in Florida, and Utah’s testing program was a huge waste of resources, but that hasn’t stopped Republicans from advocating for these schemes.
This is in part because they may actually believe that folks receiving government assistance are lazy, shiftless addicts who should be punished harshly if their behavior deviates in any way from exacting standards that they, Republicans, demand. But it’s also likely in part because drug testing is a big business, and testing requirements for welfare would represent a massive influx of clients for the companies that operate the test. And, given the relative ease of flushing the traces of serious drugs out of one’s system, it seems as if the goal isn’t catching more offenders or creating a drug-free workplace, but increasing the profits of the test makers.
JR Smith’s suspension was a just a throwaway offseason story. He’ll go back to the game and continue spraying 20-foot jumpers indiscriminately, because after all he is an enormously talented athlete who’s not easily replaced. If you fail a drug test at work, however, you’ll be fired or lose out on the chance at a job—if the GOP and ALEC get their way, you won’t even be able to receive unemployment. Marijuana should be decriminalized, but in the long run it may be more important to convince the people who sign the checks of millions of workers that smoking weed shouldn’t be a fireable offense.
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