When Drug Policies and Employment Privacy Rights Collide
In a case involving the city of Woodburn, the Ninth Circuit held that an employer's policy of requiring pre-employment drug testing was unconstitutional as applied to the particular position the prospective employee applied for. Lanier v. City of Woodburn, 2008 WL 659551 (2008). Employers frequently have policies that require employees to pass drug tests as a condition of their employment. In Lanier, the Ninth Circuit confirmed the rule that enforcement of such a policy by a public employer may violate an employee's constitutional rights.
In Lanier, the employee applied for and was conditionally offered a position as a page at Woodburn's public library. However, one of the city's conditions required Lanier to pass a background check and a drug test. The library reasoned that because pages occasionally staffed the desk in the youth services area, the position was security-sensitive and merited drug testing. When Lanier objected to the test as an invasion of her privacy, the library rescinded the offer. Lanier sued alleging violation of her rights to be free of unreasonable searches under the U.S. and Oregon Constitutions.
The Ninth Circuit held that drug testing policies by public employers are not always invalid because there are certain positions, such as operating dangerous equipment, where the employer's interest is important enough to allow such an intrusion. The library argued that it had a substantial and important interest in screening library pages for three reasons: drug abuse is a serious societal problem; drug use has an adverse impact on job performance; and children must be protected from drug users. The Ninth Circuit held that absent individualized suspicion, the need for drug testing must be far more specific and substantial than the generalized existence of a societal problem. The drug testing policy was thus unreasonable as applied to the position of pages and therefore unconstitutional.
This holding is less significant for private employers than public ones because constitutional protections against unreasonable searches apply only to public employers. However, Oregon law has the potential to provide an employee with an invasion of privacy claim against even a private employer, if the employer does anything to create an expectation of privacy in employees relating to drug testing. The Lanier case reminds all employers to use this opportunity to review their drug testing policies and revise them, if necessary, to eliminate any privacy arguments.