BOYCE F. MARTIN, Jr., Circuit Judge.
The single issue presented in this appeal is whether the City of Chattanooga’s mandatory urinalysis testing of its fire fighters, on a department-wide basis, without reasonable cause or suspicion to believe that the fire fighters tested used controlled substances, violates the plaintiffs’ rights under the fourth amendment to the United States Constitution. Three fire fighters employed by the City of Chattanooga brought this action against the City, the members of the City’s Board of Commissioners, and the Chief of the City’s Fire Department. The defendants appeal the decision of the district court enjoining the planned urinalyses as violative of the fourth amendment. 647 F.Supp. 875.
The drug screening at issue here involved all emergency service personnel, including regular fire fighters and emergen-. cy medical or ambulance personnel, who are also cross-trained as fire fighters. The directive did not apply to secretaries, clerks, or other so-called “civilian” employees. Among the civilian employees not tested were the dispatchers who received the incoming calls and directed the fire fighters to their assignments.
The testing at issue here was to be conducted in substantially the same manner as the testing of all fire fighters which had occurred in the spring of 1985. It is necessary, therefore, to recount some relevant history.
In 1983, Tom Kennedy was elected Commissioner of Fire and Police for the City of Chattanooga. In this position, he is responsible for running the Chattanooga Fire and Police Departments, subject to the overall supervision of a five-member Board of Commissioners, of which he is a member. In early 1984, some civilian employees were “caught or almost caught” smoking marijuana and were disciplined. As a result, Commissioner Kennedy, along with Police Chief McCutcheon and then Fire Chief A.O. Powell, decided to conduct urine tests for marijuana. All members of the Chattanooga Fire and Police Departments were to be tested.
Word that the drug testing was going to occur was spread through “the grapevine.” On April 16, 1985, shortly before the testing was to begin, formal notice of the testing was given when Fire Chief Powell sent a memorandum to all fire fighters advising them that, “while on duty,” they were to report to Allied Clinical Laboratories for blood testing to begin April 22, 1985. In late April and early May 1985, groups of fire fighters were taken to Allied Labs and were required to give both blood and urine samples. Because Commissioner Kennedy had “information” that one or more fire fighters to be tested were carrying clean urine samples in balloons in their pants, Kennedy ordered some of the initial donors to be “patted down” in an effort to determine if they were carrying anything that could result in a switched or an adulterated urine sample. Except for fifteen or so donors, all urine samples were given by the fire fighters under the direct observation of a Deputy or Assistant Fire Chief. Allied Laboratories subjected the samples to the Enzyme Multiple Immunoassay Technique (EMIT) test, which, on the average, is about 95% accurate. All uniformed fire [1541]*1541fighters were tested. The urine tests were mandatory. One fire fighter was terminated for refusing to submit to the test.
The 1985 urine tests were not conducted pursuant to any written orders, guidelines, or standards. None of the methods for testing, nor any of the standards for handling or analyzing the urine specimens, nor any procedures for implementation of discipline, were ever put in writing. Not surprisingly, there was confusion concerning the precise test result which triggered discipline. The City applied varying standards for determining whether an employee tested positive or negative. Urine testing 100 nanograms óf cannaboids (ng) per millileter (ml) or more was considered “positive.” Urine testing from 50 to 100 ng/ml was considered “trace.” Urine testing from 20 to 50 ng/ml was considered “minus trace.” All fire fighters testing at “minus trace” or above, e.g., over 20 ng/ml, were retested. Fire fighters who tested “trace” positive or “minus trace” positive on the first test and negative on the second test were placed on one year probation and subject to unannounced drug screens. Those fire fighters who tested “positive” on one of the later unannounced drug screens were fired.
Those fire fighters with two “positive” EMIT tests were suspended from their jobs, informed of the test results, and given a hearing before Chief Powell. Their names were released to the press at the time of their suspension. At the hearing before Chief Powell, the fire fighters were permitted to make whatever explanation they could of the test results. The fire fighters were cited for disobeying Chattanooga Fire Department Rules and Regulations § 38, General Conduct, 38.11 which states:
No member shall report for, or be on duty under the influence of any intoxicating liquors, drugs or compounds, nor shall he absent himself from duty, or render himself unfit to fully perform his duties for reasons, attributable to, or produced by indulgence in intoxicants.
Commissioner Kennedy disciplined the fire fighters based on Powell’s recommendation. The discipline included probation, suspension, demotion in rank, or termination depending upon the level of test results and the rank of the fire fighter. Of the 400 fire fighters tested, 25 of them were found to have some level of illegal drugs in their system in 1985.
As a result of the May tests, and after some additional tests in August and September 1985, ten employees were terminated by the city, five resigned, and seventeen were placed on probation. Several of the terminated fire fighters took advantage of their right under a city ordinance for a post-termination hearing before the full Chattanooga City Commission. The Commission upheld the terminations. Several of these fire fighters have- taken their cases, pursuant to state law, to the Chancery Court of Hamilton County, Tennessee, where the cases will be reviewed on the record.
After the May testing was completed and most of the discipline administered, Commissioner Kennedy had the positive EMIT tests confirmed by Compu-Chem Laboratories, in Raleigh, North Carolina. Compu-Chem performed gas chromotogra-phy/mass spectrometry tests on the samples. These tests, which are virtually 100% accurate, confirmed the results of the previously administered EMIT tests.
Several of the fire fighters terminated in 1985 participated in a drug rehabilitation program at Valley Psychiatric Hospital. That treatment was covered by the City’s health insurance program. A number of these employees have been rehired and are subject to unannounced urine retests.
Because one of the rehired fire fighters again tested positive, and because Commissioner Kennedy was told by one or more of the fire fighters who were disciplined in 1985 that some fire fighters in 1985 had switched urine samples, Commissioner Kennedy decided in the summer of 1986 to give mandatory urine tests to the entire fire department once again. There has been no statistical or objective evidence that the performance of any member of the department, or the department as a whole, has been affected by the use of drugs.
[1542]*1542The parties have stipulated that the proposed tests will be performed in substantially the same manner as they were in 1985. Commissioner Kennedy now states that a 50 nanogram per millileter standard will be used as a “bright line” test for passing or failing, and that there will be no trace or minus trace categories. It is this proposed 1986 testing program that is being challenged here as violative of the fourth amendment of the United States Constitution. While the City of Chattanooga appeals the district court’s holding that mandatory drug testing, without reasonable individualized suspicion, constitutes a violation of the fourth amendment, the fire fighters do not challenge the district court’s holding that the 1986 testing program did not violate due process requirements. We seek then only to ascertain whether the City’s drug testing program violates the fourth amendment.
There can be little question, and the City of Chattanooga does not seriously dispute, that the compulsory urinalysis of public sector employees constitutes a “search and seizure” within the meaning of the fourth amendment. In its entirety, the fourth amendment to the United States Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
By virtue of the fourteenth amendment, the fourth amendment prohibits unreasonable searches and seizures by the states. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949).
As was made clear in Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), “the fourth amendment protects people, not places.” This protection is necessary to safeguard individual privacy and dignity, values basic to a free society. See Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985). The fourth amendment provides this protection by explicitly prohibiting two types of government intrusions into individual autonomy: searches and seizures. A “search” has occurred, for purposes of the fourth amendment, when the government infringes upon “an expectation of privacy that society is prepared to consider reasonable.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984).
We join other circuits in holding that mandatory urinalyses of public sector employees constitutes a “search” within the meaning of the fourth amendment. See National Fed’n of Fed. Employees v. Weinberger, 818 F.2d 935 (D.C.Cir.1987); National Treasury Employees Union v. Von Raab, 816 F.2d 170, 176 (5th Cir.1987), cert. granted, — U.S. -, 108 S.Ct. 1072, 99 L.Ed.2d 232 (1988); McDonell v. Hunter, 809 F.2d 1302, 1307 (8th Cir.1987); Division 241 Amalgamated Transit Union v. Suscy, 538 F.2d 1264, 1266-67 (7th Cir.), cert. denied, 429 U.S. 1029, 97 S.Ct. 653, 50 L.Ed.2d 632 (1976); cf. Shoemaker v. Handel, 795 F.2d 1136, 1142 (3d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 577, 93 L.Ed.2d 580 (1986). The compelled taking and analysis of a person’s urine, like that of a person’s blood, falls within the sphere of protection offered by the fourth amendment. See Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908 (1966). To hold otherwise would leave the government unrestrained in requiring urinalyses. We do not believe society would sanction a grant of power to the government that would have the effect of enabling the government to require a urine test of any individual it had legally stopped, even if it had no reasonable suspicion of drug usage. Such an approach would eviscerate the protections of the fourth amendment. See National Treasury Employees Union v. Von Raab, 816 F.2d at 176.
The act of urinating is one of the most private of all activities. The subjective expectation of privacy felt by many individu[1543]*1543als when urinating is undoubtedly one that society is prepared to consider reasonable. There are few other times where individuals insist as strongly and universally that they be let alone to act in private. Furthermore, the information that may be gleaned from the analysis of an individual’s urine compels the conclusion that a mandatory urinalysis, whether directly observed or not, constitutes a “search” within the meaning of the fourth amendment.
This conclusion does not change because the City of Chattanooga administered the urine testing in its role as employer rather than as part of a criminal investigation. Regardless of the capacity in which it is acting, be it employer or prosecutor, the government is bound by the constraints of the fourth amendment. As the Supreme Court recently observed in O’Conner v. Ortega, 480 U.S. -, -, 107 S.Ct. 1492, 1497, 94 L.Ed.2d 714, 721 (1987):
[b]ecause the individual’s interest in privacy and personal security suffers whether the government’s motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards ... it would be anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.... Searches and seizures by government employers or supervisors of the private property of their employees, therefore, are subject to the restraints of the Fourth Amendment.
We recognize that sound policy arguments may be made for why the government should be allowed to act in its capacity as an employer with the same freedoms as private-sector employers. The fact of the matter, however, is that the line between what the private and public sectors may do is one that may be adjusted only by constitutional amendment, not by judicial exercise, for it is a line that was drawn by the Framers of the Constitution, not by members of the judiciary. The fourth amendment, as well as many of the other amendments found in the Bill of Rights, constrains only state actors. Private employers, therefore, can act in ways that if engaged in by the government would violate the Constitution. At oral argument, counsel for the City of Chattanooga conceded that its proposed urinalyses constituted a “search” within the meaning of the fourth amendment. Accordingly, we hold that mandatory urine testing, when conducted by the government, constitutes a search and seizure within the meaning of the fourth amendment.
Having said that mandatory urinalysis constitutes a search, we turn now to the critical question of whether such a search of fire fighters is unreasonable. As the Supreme Court said in New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 740, 83 L.Ed.2d 720 (1985), qualification as a “search” “only ... begin[s] the inquiry into the standards governing such searches,” for the fourth amendment proscribes only “unreasonable searches and seizures.” The determination of whether a search is “reasonable” invariably depends on its particular circumstances and context. See O’Conner v. Ortega, 480 U.S. -, -, 107 S.Ct. 1492, 1497, 94 L.Ed.2d 714, 722 (1987). This determination of the “standard of reasonableness applicable to a particular class of searches requires ba-lancpng] the nature and quality of the intrusion on the individual’s singular fourth amendment interests against the importance of the government interests alleged to justify the intrusion.” O’Conner, 480 U.S. -, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983)).
In Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979), the Supreme Court explained that, when conducting this balancing test, “[cjourts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Thus, it is necessary to consult two reference points: (1) the initial basis for instituting the search, and (2) the ensuing manner and scope in which the search was executed. [1544]*1544See National Fed’n of Fed. Employees v. Weinberger, 818 F.2d at 943.
On one side of the balance is the fire fighters’ reasonable expectations of privacy, expectations which society is “prepared to recognize as legitimate.” T.L.O., 469 U.S. at 338, 105 S.Ct. at 741 (quoting Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984)). See also O’Conner, 480 U.S. ---, 107 S.Ct. at 1498-99, 94 L.Ed.2d at 723-24. We believe there can be little dispute that society considers reasonable the expectations of its individual members to significant privacy when urinating and in the information urine contains. This expectation is not undermined in any way by the fact that the fire fighters may at times voluntarily urinate in the presence of other fire fighters. That an individual may voluntarily engage in an activity cannot be the basis of granting to the government the power to compel an individual to engage in that activity. Even when fire fighters do voluntarily urinate in the presence of others, it cannot be said that they are indicating that they do not have reasonable privacy expectations in the information contained in the urine. Furthermore, fire fighters who voluntarily expose themselves to others cannot be said to have thereby waived forever afterward their expectations of privacy. Such propositions do not accord with factual reality nOr make compelling legal theory.
On the other side of the balance is “[t]he governmental interest [in] the efficient and proper operation of the work place.” O’Conner, 480 U.S. at -, 107 S.Ct. at 1501, 94 L.Ed.2d at 727. As was recognized by the district court, there can be no doubt that the City’s interest in having its fire fighters free from drugs is a compelling one. Fighting fires is perhaps the most dangerous and hazardous of all professions. It is imperative that those who are charged with the public responsibility of extinguishing fires, sometimes risking their own lives for the sake of someone trapped, be free of the debilitating influences of controlled substances. It is well established that the use of such substances, such as marijuana, can adversely affect one’s perception, decision-making time, short-term memory, motor skills, and judgment. Fire fighters so affected become a risk to themselves, their fellow fire fighters, and those depending on them for rescue. We have no hesitation, therefore, in recognizing the compelling nature of the City’s interests in keeping its fire fighters free from the effects of illegal drugs.
We note that many of the above-described effects of drug usage may also result from excessive consumption of alcohol. Indeed, the problems resulting from alcohol may be of a greater magnitude. Nevertheless, we reject the argument that, because the City tested only for drug usage, we should strike the testing program down on those grounds. Such arguments cloud the complainant’s true criticisms of drug testing. More importantly, problems of underinclusiveness are rarely problems of constitutional magnitude unless they signify impermissible discriminatory motives. See Williamson v. Lee Optical, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). That is not the case here. A government decision to treat half of a problem rather than the entire problem may not be wise policy, but it is not an unconstitutional policy-
Given the compelling interests of the City of Chattanooga in keeping its fire fighters unimpaired, on the one hand, and the legitimate, constitutionally cognizable expectations of privacy of the fire fighters on the other hand, we turn to the question of “whether the [search] was justified at its inception.” T.L.O., 469 U.S. at 341-42, 105 S.Ct. at 743 (quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)). The district court determined that, absent reasonable individualized suspicion, the City lacked the necessary justification to institute the urinalyses. The City has argued on appeal that, because of the significance of the government’s interests, we should not require a reasonable suspicion of drug use before sanctioning the searches. To support their position, the City cites numerous cases where courts have upheld the testing of various employees without any reasonable suspicion that any of them were in fact using illegal [1545]*1545drugs. See Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.), cert. denied, — U.S. -, 107 U.S. 577, 93 L.Ed.2d 580 (1986) (upholding drug testing of jockeys and other horse racing employees); Rushton v. Neb. Pub. Power Dist., 844 F.2d 562 (8th Cir.1988) (upholding testing of nuclear plant employees); National Ass’n of Air Traffic Specialists v. Dole, No. A87-073 unpublished slip op. (D.C.Alaska, 3/27/87) (upholding testing of flight service specialists); McDonell v. Hunter, 809 F.2d 1302 (8th Cir.1987) (upholding testing of prison guards with regular contact with prisoners); National Treasury Employees Union v. Von Raab, 816 F.2d 170 (5th Cir.1987), cert. granted, — U.S. -, 108 S.Ct. 1072, 99 L.Ed.2d 232 (1988) (upholding testing of customs service officials); AFGE v. Dole, 670 F.Supp. 445 (D.D.C.1987) (upholding testing of federal employees whose positions relate to health, safety, national security, or law enforcement); and Mack v. United States F.B.I., 653 F.Supp. 70 (S.D.N.Y.1986) (upholding testing of F.B.I. agents).
There is an equally impressive string of citations, however, that can be made for the proposition that a mandatory urinalysis violates the fourth amendment interests of public employees when it is carried out in the absence of reasonable individualized suspicion. Policeman’s Benevolent Ass’n of New Jersey, Local 318 v. Township of Washington, 672 F.Supp. 779, 2 IER Cases 965 (D.N.J.1987) (individualized suspicion necessary to test police officers); Feliciano v. City of Cleveland, 661 F.Supp. 578 (N.D.Ohio 1987) (individualized suspicion required to drug test police academy cadets); American Fed’n of Gov’t Employees v. Weinberger, 651 F.Supp. 726 (S.D.Ga.1986) (reasonable suspicion needed for urinalysis of civilian police employees by Department of Defense); Capua v. City of Plainfield, 643 F.Supp. 1507 (D.N.J.1986) (reasonable suspicion needed to test fire fighters); Fraternal Order of Police v. City of Newark, 216 N.J.Super. 461, 524 A.2d 430 (App.Div.1987) (reasonable suspicion required for testing of police officers); City of Palm Bay v. Bauman, 475 So.2d 1322 (Fla.Dist.Ct.App.1985) (reasonable suspicion needed to test police or fire fighters).
We believe there is a central flaw in the reasoning of many of the drug testing opinions we have read. We are unconvinced that the amount of regulation in a given employment context, or analogies to administrative searches, should be the basis for determining whether the individual employee’s privacy interests is less weighty than the government’s asserted interests. See, e.g., Shoemaker: 795 F.2d at 1142 (“the administrative search exception applies to warrantless breath and urine testing of employees in the heavily regulated horseracing industry.” The court goes on to add that its holding “applies only to breathalyzer and urine sampling of voluntary participants in a highly regulated industry.”) National Ass’n of Air Traffic Specialists, Slip op. at 34 (“If horse racing is recognized as a closely or pervasively regulated activity, then aviation activities and the aviation industry are as much or more closely regulated.”); Von Raab, 816 F.2d at 179-180 (search of customs service officials permissible in part because of the “administrative nature of the search” and by “analogy to regulated industry.”); and Local 318 at 786, 2 IER Cases at 970 (“While police officers certainly operate within a framework of regulatory controls, a police officer does not carry out his duties in the same ‘intensely regulated’ atmosphere as that experienced by a jockey participating in horse racing.”) We reject the argument that solely because a given employment industry is heavily regulated, such as air traffic control or horse racing, that it follows that mandatory urinalyses may be condoned in the absence of individualized suspicion. Similarly, we reject the argument that because an industry is not regulated, such as police and fire patrols, that it necessarily follows that a standard that does not require reasonable suspicion is unconstitutional. Such an approach is simplistic and intellectually indefensible.
To allow widespread mandatory drug testing of individuals by analogizing it to the relaxed standards governing the less intrusive searches of places allowed under [1546]*1546the administrative search warrant exception fundamentally misapprehends that doctrine. That doctrine, which was created in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), deals with an area where there is a “long history of judicial and public acceptance” of liberal standards in weighing the need for periodic inspection of premises for compliance with municipal codes. 387 U.S. at 537, 87 S.Ct. at 1735. See Frank v. Maryland, 359 U.S. 360, 367-71, 79 S.Ct. 804, 809-11, 3 L.Ed.2d 877 (1959). Furthermore, this doctrine, with its relaxed standard for inspection warrants, was allowed by the Supreme Court “because the inspections are [not] personal in nature ... they involve a relatively limited invasion of the urban citizen’s privacy.” 387 U.S. at 537, 87 S.Ct. at 1735 (emphasis added). This conclusion of the Supreme Court was amply supported:
Time and experience have forcefully taught that the power to inspect dwelling places, either as a matter of systematic area-by-area search or, as here, to treat a specific problem, is of indispensable importance to the maintenance of community health; a power that would be greatly hobbled by the blanket requirement of the safeguards necessary for a search of evidence of criminal acts. The need for preventive action is great, and city after city has seen this need and granted the power of inspection to its health officials; and these inspections are apparently welcomed by all but an insignificant few. Certainly, the nature of our society has not vitiated the need for inspections first thought necessary 158 years ago, nor has experience revealed any abuse or inroad on freedom in meeting this need by means that history and dominant public opinion have sanctioned. 359 U.S. at 372, 79 S.Ct. at 811-12.
Given the origins of the administrative search warrant exception, it seems incredible that the argument in favor of mandatory drug testing should be based on this doctrine. Unlike the situation addressed in Camara, mandatory drug testing is extremely personal in nature; few other searches could be more personal in nature. Furthermore, it is not clear that time has so forcefully taught the need for mandatory drug testing. Finally, the doctrine is inapposite as those who would conduct a search of buildings must still secure a warrant.
Rather than focus on the amount of regulation in the industry or work force, we believe it is necessary to understand why a particular industry is regulated and why the drug tests have been initiated. We do not accept the justification of allowing drug testing in a regulated industry without reasonable suspicion when the testing pursues a policy or interest different from the regulations. For example, a particular industry, such as public utilities, may be regulated for the purpose of promoting economic efficiency because of a lack of competition. It would be nonsensical to then conclude that mandatory urinalyses that are not designed and do not further the purposes pursued by the regulations are nevertheless relieved of constitutional scrutiny because of those regulations. Furthermore, the existence or nonexistence of a regulatory framework does not necessarily indicate that employees in a given employment sector have a greater or lesser expectation of privacy.
We believe there must be a focus on the particular nature of the employment sector to be tested. More specifically, there must be an inquiry into the harm that will result to society if mandatory drug tests are not allowed in that industry. The higher the cost and the more irretrievable the loss, the stronger the argument for finding reasonable the initiation of a drug testing program. We believe society has a right to protect itself from the infliction of irretrievable catastrophic losses. When determining whether any search is reasonable, there must be consideration of the benefits that inure from the exercise of that search. As the harm to society of not conducting the search of an individual increases to potentially catastrophic levels, the less willing is society to consider reasonable that individual’s subjective expectations of privacy.
[1547]*1547Not only must there be an analysis of the potential harm to society of an impaired employee in a given sector, but there must also be a determination of the extent to which mandatory drug testing will decrease the risk of such harm being imposed on society. Implicit in this analysis, of course, is the question of how incompatible is job performance in that sector with the usage of illegal drugs. Also implicit in this inquiry is the question of how often a drug test will register positive though the tested employee is not in fact impaired on the job.
In the case of fire fighters, the harm to society of a fire fighter being impaired may be significant. Furthermore, those losses, especially when it is in the form of lost lives, are irretrievable. Nevertheless, it would appear that the likelihood of enormous losses being imposed on society because of an impaired fire fighter is significantly lower than with impaired air traffic controllers and nuclear plant employees who literally hold thousands of lives in their hands every day. See National Ass’n of Air Traffic Specialists v. Dole, supra, and Local 318. That does not describe the typical day of a fire fighter.
This difference in the potential harm to society becomes even more significant when a determination is made of the extent to which drug tests will decrease the risk to society. Because there was not any evidence of a widespread or significant drug problem within the City of Chattanooga’s Fire Department, the potential gains to society of initiating mandatory drug testing are significantly lower than would have been the case if there had been evidence of a systemic drug problem. Thus, the probability of detecting an impaired employee must be considered as well as the benefit to society of removing such an employee. As the Supreme Court said in New Jersey v. T.L.O., “reasonable grounds must [exist] for suspecting that the search will turn up evidence” of work-related drug use. 469 U.S. at 342, 105 S.Ct. at 743. This is especially critical when the loss to society of failing to detect an impaired employee is likely not to be so great.
Thus, we believe there is a continuum of employment categories that are defined by the degree of suspicion that a drug problem exists and the potential harm to society of an impaired employee operating in that employment sector. When determining, then, whether a mandatory drug search is “reasonable,” we believe that, as the costs to society of an impaired employee increase, the requisite level of suspicion that a drug problem exists decreases. The lower the potential harm to society, the more suspicion needed. This view is reinforced by the observation that if the potential harm to society of an impaired public employee is likely to be very large, society will be less willing to consider reasonable that employee’s subjective expectations of privacy. Of course, this suspicion must be based in good faith and grounded in objective evidence. In the overwhelming number of jobs where an impaired employee is not in a position to impose significant, irretrievable losses on society, we do not believe a mandatory drug test would be reasonable absent individualized reasonable suspicion. In Rushton v. Neb. Pub. Power Dist., 844 F.2d 562 (8th Cir.1988), the court there also recognized, in upholding the mandatory testing of nuclear plant employees, that in certain circumstances the state’s interest may be so great that individualized suspicion will not be required.
In the case of the mandatory drug testing program at issue here, we believe that, while fire fighters may at times be in a position where significant losses could be imposed on society because of drug impairment, it is clearly not of the same magnitude as exists with air traffic controllers or nuclear plant operators, for example. Accordingly, for a mandatory drug test of fire fighters to be reasonable, there must be some evidence of a significant department-wide drug problem or individualized suspicion. No evidence of such a problem exists here. The low probability of a given test being positive, in combination with the moderate benefits to society of a positive test result, do not justify a restriction of the constitutional rights of the City of Chattanooga’s fire fighters.
[1548]*1548This holding is reinforced by our perception of an inherent flaw in this and any similar testing program. Simply stated, a mandatory drug test does not in fact measure impairment. Rather, it measures whether the tested employee has in the recent past used illegal drugs. There is insignificant evidence in this record for us to determine the extent to which a positive test result equals a finding of impairment. We suspect, however, that as with alcohol tests, there exists a level of nanograms per millileter where it may be presumed that an employee with such a level is impaired. What that level is we do not know. We do note that there may be jobs where the very fact that the employee has used illegal drugs during the course of his or her employment indicates impairment. See, e.g., Penny v. City of Chattanooga, 846 F.2d 1563 (6th Cir.1988). This question of the correlation between positive test results and impairment is particularly important here where the fire fighters who test positive are being cited for violating department rule § 38, General Conduct 38.11 which prohibits any member from reporting to duty “under the influence of any ... drugs ... or rendering] himself unfit to finally perform his duties.”
Because we do not find there was significant justification for initiating the drug test at issue here, we do not need to analyze “whether the search as actually conducted ‘was reasonably related in scope to the circumstances which justified the interference in the first place.’” T.L.O., 469 U.S. at 341, 105 S.Ct. at 743 (quoting Terry, 392 U.S. at 20, 88 S.Ct. at 1879). We do note, as we did earlier, that problems of underinclusiveness are rarely problems of constitutional magnitude. We also note that while the fact that the donation of urinary samples was to be observed was not relevant in determining whether a “search” for fourth amendment purposes took place, we do believe that this fact does increase the burden on the employer to justify the testing. An unobserved urine test is clearly less intrusive than one that is observed. We believe there may be better ways to guard against employee efforts to provide misleading or adulterated urinary samples. For instance, temperature tests of the urine might guard against the donation of old urine specimens, chemical tests should be able to determine the presence of foreign substances such as soap or vinegar in the urine sample, and pat downs of employees may even be preferable to observation, as pat downs seem to be less intrusive on employees’ reasonable expectations of privacy.
Finally, we join the District of Columbia Circuit in holding that a search otherwise unreasonable does not become constitutionally palatable because it is attached as a condition of employment. National Fed’n of Fed. Employees v. Weinberger, 818 F.2d at 943. We do not believe the government should be allowed to accomplish indirectly, absent compelling reasons, what it cannot accomplish directly under the Constitution. That is the central tenet of the doctrine of unconstitutional conditions, a doctrine increasingly used today to limit the conditioning of government jobs and benefits upon the waiver of constitutional rights. See Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U.Pa.L. Rev. 1293 (1984); and Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). If the government could freely condition its many jobs and countless other benefits on the waiver of constitutional rights, then the promises of the Constitution and Bill of Rights would be largely hollow and symbolic.1 Such conditions must be recognized for what they are: constitutionally unauthorized enlargements of government power. Constitutional conditions that restrict the status quo of constitutional liberty enjoyed by citizens, and which do not significantly advance legitimate government interests, should be treated no differently than any direct infringement of constitutional rights.
[1549]*1549The issue presented in this case explores the line between two critical societal concerns. On the one hand there is the compelling need to fashion an effective response to the problem of illegal drugs that would undermine the public workplace and the ability of public servants to respond in times of emergency. On the other hand there is the compelling right of all citizens under the U.S. Constitution to be free from unreasonable searches and seizures. While we strongly support the City of Chattanooga’s concerns of drug-related impairment in its Fire Department, we believe that our holding today affirms the fundamental principle that all citizens, including those employed in the public sector, enjoy constitutional protection. The guaranties of protection afforded by the Constitution are most vital where the temptations to abandon them in favor of attractive policy goals are most seductive.
Accordingly, the decision of the district court enjoining the City of Chattanooga from initiating mandatory drug testing of fire fighters as violative of the fire fighters fourth amendment rights is affirmed.