Jurists Uphold Drug Testing by Employers

SAN FRANCISCO — Upholding drug testing by employers, the California Supreme Court ruled Monday that governments can screen job applicants for drugs and alcohol but may not require blanket testing as a condition of promotion.

The landmark ruling was the state high court’s first decision on the constitutionality of workplace drug testing. All state and local governmental agencies in California will be bound by the decision.

Although the ruling did not specifically apply to private companies, lawyers in the case said it also gives a green light to drug testing in the private sector. In the past, the Supreme Court has let stand a lower court decision that upheld such screening by a company.

Reviewing a Glendale city drug and alcohol program, the state high court found that screening is constitutionally permissible for new employees because they are required to undergo medical examinations anyway.

The court noted that employers also have a greater need to test applicants because they have not yet been observed in a day-to-day job setting and firing them later, after training, would be costly.

But Glendale’s policy of testing all employees, regardless of their work, before promoting them violates the U.S. Constitution’s 4th Amendment, which prohibits unreasonable search and seizure, the court decided.

Limiting such testing to sensitive jobs might pass muster, the court added, and an employer still can test a worker who shows signs of drug or alcohol impairment.

“An employer generally need not resort to suspicionless drug testing to determine whether a current employee is likely to be absent from work or less productive or effective as a result of current drug or alcohol abuse,” wrote Chief Justice Ronald M. George for the majority.

“When deciding whether to hire a job applicant, however, an employer has not had a similar opportunity to observe the applicant,” George wrote.

The case prompted four justices to write separately from the majority. In favor of allowing testing of new employees were George and Justices Marvin Baxter, Kathryn Mickle Werdegar, Ming W. Chin and Janice R. Brown. Justices Stanley Mosk and Joyce L. Kennard dissented.

In support of a ban on across-the-board testing for promotions were George, Werdegar, Mosk and Kennard. Justices Baxter, Chin and Brown dissented.

Brown wrote that drug testing is one of the “trade-offs” of being a public servant and noted that applicants or employees can refuse to take the tests and forgo employment.

“Such choices are neither easy nor comfortable,” Brown wrote. “But that is life. Sometimes beauty is fierce; love is tough, and freedom is painful.”

Glendale’s drug testing program has been mired in the courts since it was established in 1986. A taxpayer, Lorraine Loder, filed suit, arguing that public funds should not be spent to support an unconstitutional program. The American Civil Liberties Union handled her case.

At the trial, Los Angeles Superior Court Judge Ernest George Williams ruled that applicants or employees in only 36 of the city’s 80 job classifications could be tested. Williams prohibited testing for city attorneys and their secretaries, for example, but allowed it for police, fire and jail personnel.

The Court of Appeal in Los Angeles restricted the program further, ruling that testing could only be done for jobs in which an employee’s performance could have an immediate disastrous consequence upon public safety or security.

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The Supreme Court, overturning that decision, said Glendale might even be able to devise a more limited testing program for promotions that removes constitutional concerns. In a footnote, the majority noted that such a program need not be as restrictive as the one required by the Court of Appeal.

Glendale City Atty. Scott Howard said the trial court’s ruling limited testing to about 80% of Glendale’s 1,600 employees and the Court of Appeal’s decision scaled it back further to about 30%.

“Certainly the private sector, at the very least, will be able to do what we do,” Howard said. “They would not have to meet a higher standard than we have to meet.”

When Glendale began testing as a pilot project, 21% of applicants flunked, Howard said. But when the program was formally implemented and notice of testing given to applicants, the failure rate dropped to 1%, he said.

‘We have a great victory today,” he said. “I think the real winners here are taxpayers. We can now get on with our job and have a drug-free environment, to the extent we possibly can, when we are looking at new hires.”

The Glendale City Council will have to decide whether to try to fashion a more limited testing program for promotions, he said. Marvin E. Krakow, who represented the ACLU and Loder in the case, called the ruling “a disaster for working men and women” and complained that “people tend to relinquish their considered thoughtfulness when it comes to drugs.”

Loder said she was disappointed that the court will allow the city to test applicants. “We are entitled to a much greater expectation of privacy than the court is permitting with this decision,” she said.

Justice Mosk, in a dissent, argued that the city should limit screening to those whose occupations directly affect public safety or to positions in which drug use is a particular problem.

“Drug testing represents a significant additional invasion of these applicants’ basic rights to privacy and dignity,” Mosk wrote, “and the city has not carried its considerable burden of showing that such invasion is justified in the case of all applicants offered employment.”

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Justice Kennard faulted the majority for allowing employers’ economic concerns to justify widespread testing. She said employers could give workers a probationary period in which to observe any drug- or alcohol-related behavior.

“I question how effective such testing is at predicting which persons’ job performance will be impaired by substance abuse,” she wrote.

But Justices Chin, Baxter and Brown wanted to go even further than the majority and allow across-the-board testing for current employees.

Chin noted that five of the court’s seven justices found that the court’s distinction between applicant testing and testing for promotions “unsound.” He argued that the entire Glendale program should be upheld.

Glendale’s “interest in assuring that its employees are drug-free is as great or greater with respect to applicants seeking promotion to positions carrying higher responsibility than with respect to applicants seeking entry-level positions,” Chin wrote.