While general employment activities like hiring, terminating, and giving raises and promotions are most commonly examined when discussing discrimination, other issues can also be used against you in a discrimination suit. Issues like drug testing, office and locker searches, psychological tests, and electronic surveillance, if not handled correctly and legally, can be used as grounds for law suits against you for discrimination and/or privacy invasion.
Personal privacy is guaranteed by the Fourth Amendment of the U.S. Constitution, and it is intended to protect U.S. citizens against unreasonable, or unfounded searches and seizures. This amendment has been applied to drug testing in many courts across the country and the rulings have defined drug testing as a "search," and therefore to be legal, employers have to be able to prove such testing is done in a reasonable and fair manner, and that there was a direct cause for the testing. This means that random testing is not legal in most situations, especially if the agency is federally funded. Employers must show that there is just cause, such as allegations from employees, or physical evidence such as residue or paraphernalia.
Office and locker searches are also legal as long as the employer has just cause, or reasonable suspicion that the employee is in possession of an illegal or dangerous piece of property. Employers should note here that if they allow their employees to put their own lock on their lockers then they lose their right to search the locker even with just cause.
Psychological tests, once very popular personnel management tools, have recently been removed from the personnel arsenal because of their tendencies to invade personal privacy rights of the tested. This decision is based on the fact that many psychological tests, especially those that deal with psychopathology, ask questions about the test subject’s religious and sexual preferences.
Electronic surveillance is the final privacy issue that employers need to address. With modern advancements in electronics and technology, electronic surveillance has steadily replaced physical security guards and supervisors. However, employers should note the legal limitations of such devices. In general electronic surveillance either by video camera or the monitoring of company based emails is legal. This is based on court rulings that state that employees don’t have the right to expect privacy when at work in open spaces. However, in order to protect yourself from possible suits it is important to document your surveillance policies and to have every employee read and sign a copy of these policies when they are hired. That way you have proof that the employee knows they will be working in an environment that is monitored, and that they have agreed to such terms.