The Constitutionality of Pre-Employment Drug Testing for Public Employees
posted by Paul Secunda
As I wrote today on Workplace Prof Blog, Ross Runkel’s Employment Law Memo brings word that the Ninth Circuit has handed down Lanier v. City of Woodburn, 06-35262 (9th Cir. Mar. 13, 2008) (case link in Workplace Prof post), a case discussing the permissibility of drug testing public employee.
Ross summarizes the case:
Lanier sued the municipal employer, alleging that its policy requiring job applicants to pass pre-employment drug tests violated her privacy rights under the 4th Amendment of the United States Constitution and Article I, Section 9 of the Oregon Constitution. The trial court granted summary judgment in Lanier’s favor, finding that the policy was facially unconstitutional. The 9th Circuit affirmed in part and reversed in part – concluding that the policy was unconstitutional as applied to Lanier (who had applied for a job as a library page) but not facially invalid.
The employer argued that it had a substantial and important interest in screening library pages because 1) drug abuse is a serious societal problem; 2) drug use has an adverse impact on job performance; and 3) children must be protected from those who use drugs or could influence children to use them. The court rejected that argument, reasoning that the United States Supreme Court’s decision in Chandler v. Miller, 520 US 305 (1997) “makes clear the need for suspicionless testing must be far more specific and substantial than the generalized existence of a societal problem of the sort that [the employer] has posited.” The court noted that the need in suspicionless cases not involving interdiction work (or high risk/safety-sensitive tasks) must be “special” and not merely “symbolic.”
I think the court got this one right. There needs to be a case-by-case analysis if there is a specific and immediate government interest in conducting the drug search before invading public employees’ Fourth Amendment rights to be free from unreasonable search and seizure.
The use of the word “symbolic” in the court’s decision brings to mind Justice Scalia’s dissent in the Von Raab case concerning federal custom agents. Pointing out that there had not been a history of drug abuse among custom agents, Scalia argued, correctly in my view (yes, you can pinch yourself) that the government should not be able to violate a public employee’s 4th Amendment rights for symbolic purposes.
The best approach when dealing with conflicting interests between public employees and the government employer is to engage in an ad-hoc balancing test, as in the First Amendment Pickering area. It is not a perfect test, but at least it allows the court to weigh the relevant interests before bringing governmental power to bear on citizen employees.
March 14, 2008 at 12:09 pm
Posted in: Employment Law
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