Wednesday, December 3, 2014

Is Drug Testing Blaming the Victim?

It seems that society has evolved, and there is less inclination to "blame the victim," though it still occurs. 

Recently, news services reported that three Oklahoma law enforcement officers have been accused of "sexually assaulting women while on the job." These are allegations and not convictions; but that may come in time. The situation is not isolated to any one agency, the accused reportedly worked for the Oklahoma State Police, the Tulsa County Sheriff's Office and the Oklahoma City Police. 

The situation made some recent news coverage because of the interview provided by Captain George Brown, an Oklahoma Trooper. Apparently speaking on behalf of the Oklahoma State Police, Captain Brown praised law enforcement generally, reminding the public that there are lots of good officers and that they do "a lot of good things daily." He cautioned though that there are "the few bad apples that exist out there."  

How can women protect themselves? Captain Brown suggested "that women can keep their doors locked and speak through a cracked window if a trooper approaches them." If they are asked to exit the car, he suggests that "she can ask in a polite way why he wants her to do that." Then Captain Brown suggested that the best thing you can do "is to follow the law in the first place so you don't get pulled over."

Several who commented on this story suggest that this "obey the law" comment  is simply blaming the victim. That is, somehow it is the victim's fault she was assaulted; if she had not been speeding, she would not have been raped or assaulted. Others point out the fallacy in believing that a "bad apple" officer who would commit sexual assault will nonetheless be too honorable to pull someone over who is not breaking the law. It seems unlikely that anyone could seriously contend these victims are at fault for being victimized by police.

Similar "blaming" comments have been made recently in response to the situations of domestic abuse that were in the news this fall. When football player Ray Rice was seen on video striking his then fiance, now wife, in the face, there were those who commented on the internet and elsewhere placing blame on the victim. A story on summarized some of these. It may seem obvious that blaming the victim is inappropriate, but it has nonetheless occurred. 

These examples from the Internet came to mind as I recently read some stories about drugs and alcohol and one about workers' compensation. Is it ever appropriate to blame the victim? 

There is the public opinion aspect that is difficult or perhaps impossible to control, whether those people's views are agreeable or not they are going to be posted on the Internet. The anonymous commenter may be willing to blame the victim. There is virtually no filter for comments and posting. So there may always be some element of society that both blames the victim and does so in an unfiltered and public setting of the world-wide web. 

But in the "no fault" world of workers' compensation, where responsibility is delineated by statute or code, is it appropriate to blame the victim for a work accident? If the law elects to penalize the victim, to what extent will that be allowed, and upon what quantum of proof?

There are some states that have integrated "fault" into workers' compensation, a system designed to be "no fault;" designed to provide a level of care and income to people who suffer injuries on-the-job. Workers' compensation started primarily about compensation for accidents on-the-job, but it as expanded and evolved in various ways to deal with illness and disease and repetitive trauma. This evolution and amendment over years and has resulted in an array of protections provided in modern workers' compensation.

There are also "fault" provisions. Failure to use an employer required safety device can result in a reduction of workers' compensation benefits in some states. There are also states that provide for reduction or elimination of workers' compensation benefits when an accident is caused by the use of drugs. These are not universal propositions however. 

New Mexico has recently debated this idea of relieving the employer of responsibility when drug use is involved. New Mexico currently has a provision to this effect, but is is specific and limited. The Albequerque Business Journal conducted a survey to measure voter opinion regarding the proposal to broaden New Mexico's law regarding denial or reduction of benefits "in cases where alcohol or drug use led to an employee's injuries or death." The results were interesting and are discussed further below.

The Journal notes that this is not a new idea, and that "a number of states have laws that restrict or deny" benefits in such instances. They cite, but do not link to, a "2009 survey by the U.S. Department of Labor." My research suggests that this may be that study. This entire study would require hours to digest, and in some instances it only makes broad references to statutes or codes that would likewise require analysis. But this is not a law review article. In summary, I counted about 30 states in the study that clearly reduce or eliminate benefits based on substance use. That is a solid majority of the states.

The Department of Labor study says that New Mexico law already has some provisions in place regarding benefit preclusion or reduction. According to N.M. St. Ann. section 52-1-12, New Mexico precludes compensation if an injury is caused "solely" by being under the influence of "a depressant, stimulant, or hallucinogenic drug as defined" by New Mexico Law. 

This is a reasonably narrow definition. The types of drugs are limited and the injury has to be "solely" caused thereby. Other states may use broader characterizations of what kind of drugs, and might have less stringent phraseology than "solely."  More detail about the laws of the thirty states counted in the Department of Labor study would be interesting. 

But how do people feel about this in New Mexico? Sixty-seven percent supported a prohibition or limitation on compensation if the use of alcohol or drugs "led to" injury or death. When they analyzed support along political lines, they concluded 72% of Republicans and 63% of Democrats favored this. This sounds like significant support for the idea, and the "led to" standard seems broader that New Mexico's current "solely" standard. Whether this kind of provision is seen as blaming the victim, there appears to be significant support for the concept.

This debate is likely to receive more press, in New Mexico and beyond. It is part of a larger debate on drug use in the workplace that is related to current drug-free workplace policies, state decisions not to enforcement Federal laws against marijuana, Federal decisions not to enforce or to change marijuana laws, and evolving social attitudes regarding drug use generally. There are those who see looser restrictions on marijuana as potentially affecting work place safety profoundly. Others see little difference between marijuana and alcohol. There is already litigation. There will be ongoing debate. 

Also this fall, news from the wide, wide world of sports. A race driver named Tony Stewart is apparently fairly famous for driving a race car. He was driving in a "sprint car" race some weeks ago when he struck another driver on the track. Apparently this other driver had exited his vehicle and was walking on the track when Mr. Stewart struck him. That is, walking on a darkened track, at night, in a dark suit. A grand jury was convened to investigate the death, and concluded that it would not be appropriate to charge Mr. Steward with a crime in connection with that death. 

This story received a fair amount of press and the racing world has been interested in the crash, the death, and Mr. Stewart. Some have suggested that the young man who died should not have been walking on the track, while others feel Mr. Stewart did not do enough to avoid him. The news following the grand jury decision though included the detail that the young man who died "had enough marijuana in his system to influence his actions the night he was killed." There was no detail provided in terms of how much or how measured, but the conclusion: "enough."

As an aside, the "sprint car" is an interesting proposition. They look much like a go-cart, but with a V-8 engine that might be rated as high as 800 horsepower, and with airfoils (wings) mounted on the chassis to help control the vehicle's direction in light of this raw power. According to some, the top speed may be as high as 120 miles per hour. That may not sound like much if your perspective is NASCAR or INDY racing, but these people are racing on 1/2 mile clay tracks. How much time is there to react at that speed? Is there more time to react when an industrial machine cycles, closes a pinch-point, etc.?

Is it safe to operate any vehicle under the influence of marijuana, alcohol or other drugs? Is it safe to operate any machinery at all, at work or at home, under the influence? Regardless of how you feel about those questions, does it make sense to preclude or reduce workers' compensation benefits when an employee is found to have been under such influence? Should such preclusion be if the influence "existed," "contributed to," "caused," or "solely caused" the accident or injury? These issues will receive attention and discussion if the New Mexico amendment moves forward.

Do people want their engineer, pilot, bus driver, "doctor, lawyer, Indian chief" to be under the influence? Is there some level of intoxication or impairment at work that is acceptable? Society will struggle with these questions. Do such restrictions impair people's rights to do as they wish in their off-work hours? In the debate on these questions will people be conscious that provisions that preclude or reduce benefits in workers' compensation for such situations could be perceived as blaming the victim? 

Some in the racing example, including the victim's aunt, oppose blaming the victim. She takes issue with the conclusion of impairment. Many comments on the racing story have taken issue with the science of drug testing, the presence of proof, and their perceptions of the science that ties that presence of traces to a conclusion of impairment. In short, though that driver was tested and "impairment" concluded, there are those who believe the victim is nonetheless being inappropriately blamed when the testing might have evidenced prior use, but not current impairment.

When is it appropriate to blame the victim? It seems that in the vast majority of situations, America is evolving away from blaming victims, though it still seems to occur at least in Internet comments. Is reducing or eliminating the workers' compensation benefit because of a positive drug or alcohol test blaming the victim? Or is it appropriately limiting risk and exposure? As marijuana use becomes more prevalent under state decisions, will its "legal" use change the complexion of this debate?

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