Labor & Employment Law

City's Pre-Employment Drug Testing Requirement Unconstitutional for Non-Safety-Sensitive Library Position

By Harvey Randall, Esq.

City's Pre-Employment Drug Testing Requirement Unconstitutional for Non-Safety-Sensitive Library Position
Source: Jackson Lewis LLP. Reproduced with permission. Copyright © 2008, Jackson Lewis. Originally published by Jackson Lewis, LLP, at www.jacksonlewis.com. All rights reserved.

Public employers beware! A city?s blanket pre-employment drug and alcohol testing policy, requiring that finalists for city positions be tested for drugs and alcohol, has been held unconstitutional under the Fourth Amendment to the United States Constitution when applied to an applicant for a library page position. The U.S. Court of Appeals for the Ninth Circuit ruled that the pre-employment testing policy of the City of Woodburn, Oregon, is a search within the meaning of the Fourth Amendment, and therefore must ?fit within the closely guarded category of constitutionally permissible suspicionless searches.? Lanier v. City of Woodburn, No. 06-35262 (9th Cir. Mar. 13, 2008). Finding that the City had made no valid showing of ?special need? for the suspicionless testing, or that there existed individualized suspicion for the testing, the court held that the government?s policy is an unreasonable Fourth Amendment search when applied to a library page candidate. The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

Plaintiff Janet Lynn Lanier applied for a part-time position as a page at the Woodburn Library, a public employer. The position requires retrieving and returning books to the shelves and, occasionally, staffing the desk at the youth services area, which contains materials for children and teenagers. She was offered the job on the condition that she submits to and passes a pre-employment drug and alcohol test and a background check. She declined to be tested and the offer was withdrawn. Lanier then sued the City for violation of her rights under the Fourth Amendment and under Article I, Section 9 of the Oregon Constitution, an analogous state provision. (For purposes of the appeal to the Ninth Circuit, the parties agreed that these constitutional provisions are co-extensive.)

In affirming summary judgment for Lanier, the Ninth Circuit relied upon the Supreme Court?s decision in Chandler v. Miller, 520 U.S. 305 (1997), where the high court held that the Fourth Amendment requires the government to articulate a special need in order to drug screen individuals without suspicion. That case involved a Georgia law requiring candidates for elective office to present a certificate from a state approved laboratory reporting that the candidate has tested negative for illegal drugs, which the Court found violated the Fourth Amendment.

Here, the City argued that three reasons supported its substantial and important interest in screening library pages: (1) ?drug abuse is one of the most serious problems confronting society,? (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 found that none of these proffered justifications sufficed.

The first reason did not overcome the Fourth Amendment?s requirement of individualized suspicion because, the court said, ?the need for suspicionless testing must be far more specific and substantial than the generalized existence of a societal problem?.? As to the City?s second reason, the court found that the City?s anecdotal evidence of employees from other City departments under the influence of drugs or alcohol and one library employee with a record of entering drug rehabilitation was insufficient to demonstrate a drug abuse problem which warranted departure from the rule of individualized suspicion.

The City also failed to convince the court that its interest in protecting children justified the policy. The court found the link between that interest and the part-time library page position too tenuous to support suspicionless testing. It rejected the City?s reliance on Knox County Educ. Ass?n v. Knox Cty Bd. of Educ., 158 F.3d 361 (6th Cir. 1998), which upheld testing involving teachers and administrators charged with unique in loco parentis obligations and with securing school security. The part-time library page position had no such obligations.

Finally, the court rejected the City?s argument that all library positions are ?safety-sensitive.? Jobs have been considered safety-sensitive ?if they involve work that may pose a great danger to the public,? such as the operation of railway cars, the armed interdiction of illegal drugs, and work involving matters of national security. In the court?s view, a part-time library page position is not comparable to such positions.

Public employers who utilize pre-employment drug and alcohol testing are encouraged to revisit their policies in light of Lanier v. City of Woodburn. Employers who engage in blanket pre-employment testing of all final job applicants, without regard to the particular job at issue or other special need for suspicionless testing, are vulnerable to attack under the Fourth Amendment. The attorneys in Jackson Lewis? Public Sector Practice Group are available to answer your inquiries and assist in your policy reviews.

NYPEL Comment: In New York Stae a public employee may be required to submit to tests to detect their use of illegal drugs if the appointing authority has "reasonable suspicion" that the individual is using illegal drugs at work as the Patchogue-Medford Congress of Teachers v Board of Education, 70 NY2d 57, demonstrates.

Full post as published by New York Public Personnel Law on April 16, 2008 (boomark / email).