Issue: Ninth Circuit holds that applicant drug testing policy violates 4th Amendment

For the week of March 24, 2008

Pre-employment drug testing by various types of employers has become commonplace over the years. Nearly 84% of employers last year required some form of pre-employment screening. However, in a March 13, 2008 ruling, the Ninth U.S. Circuit Court of Appeals ruled that an Oregon city violated the constitutional rights of a woman who had applied for a city library job when it withdrew its employment offer after the applicant refused a mandatory pre-employment drug and alcohol test. Lanier v. Woodburn, 9th Cir. No. 06-352622, 3/18/2008.

In 2004, the applicant, Janet Lanier, applied for employment with the city as a library page. The City offered Lanier a position, but conditioned the offer upon Lanier taking and successfully passing a pre-employment drug and alcohol test. While the city had no reason to believe Lanier was using drugs or alcohol, it required the test as a matter of policy; that policy was applied consistently to all applicants. When Lanier refused to take the test, the city withdrew its offer of employment.

Lanier filed a lawsuit against the city alleging that the mandatory drug test violated her right to privacy afforded under the 4th Amendment and Article 1, Section 9 of the Oregon Constitution. The district court granted summary judgment in favor of Lanier, finding that the policy was unconstitutional on its face. The 9th Circuit affirmed in part and reversed in part – ultimately finding while the policy was not facially invalid (as a set of circumstances could exist under which the policy could be valid), the policy, as applied to Lanier, was unconstitutional.

The city argued that it had a "substantial and important" interest in screening employees because: 1) drug abuse is a serious social problem; 2) drug use has an adverse impact on job performance; and 3) children must be protected from those who use drugs. The Court rejected the City’s argument, and reaffirmed its position that "suspicionless testing must be far more specific and substantial than the generalized existence of a social problem of the sort [the city] has posited."

The Court found that the city advanced no clear need to test library pages, as no evidence was submitted that would tend to show that Lanier would have extensive contact with children in the position for which she had applied or that she would have been in a position to exert influence over children by virtue of continuous interaction or supervision. The Court ruled that the need in suspicionless cases not involving high risk/safety sensitive work must be "special" and not merely "symbolic."