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9th Circuit: City Failed To Show Need for Pre-Employment Drug Screening

By Lori K. Mans  5/16/2008
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 The 9th U.S. Circuit Court of Appeals held that it was unconstitutional for Woodburn, Ore., to require an applicant for a library page position to submit to a pre-employment drug test.

The city’s policies and procedures required all applicants to successfully pass a drug and alcohol screening as a condition of employment. In February 2004, Janet Lynn Lanier applied to be a page at the city’s public library. A page’s job duties included tasks such as retrieving books from the book drop, returning books to shelves and staffing a desk in the youth services area. The city extended an offer of employment to Lanier conditioned on successful completion of a background check and pre-employment drug and alcohol screening. When Lanier declined to submit to the screening, the city rescinded the job offer.

Lanier then brought suit against the city alleging that her rights under the Fourth Amendment to the U.S. Constitution and a similar section of the state constitution were violated.

The district court granted summary judgment in favor of Lanier and entered a declaratory judgment against the city that stated the city’s policy was unconstitutional to the extent that it was “warrantless, suspicionless and unsupported by special need that outweighed reasonable expectations of privacy.”

On appeal, the 9th Circuit affirmed the district court’s decision that the city’s policy was unconstitutional as applied to Lanier’s application for the library page position. However, it remanded the case to the district court to clarify that the city’s policy was not unconstitutional on its face, but only unconstitutional as applied to Lanier.

The Fourth Amendment protects against “unreasonable searches and seizures,” such as drug or alcohol screenings. Therefore, public-sector employers must articulate a special need for suspicionless drug testing, such as applicant testing.

A special need is usually demonstrated by showing either specific evidence of a drug problem among a particular department or throughout an organization, or by showing that the job duties of the position at issue are “safety sensitive” in nature.

The city did not show specific evidence of drug abuse among its employees. The 9th Circuit noted that the need for suspicionless testing must be more specific and substantial than the generalized existence of a societal problem. The appeals court reasoned that unspecified difficulty with employees under the influence of drugs or alcohol experienced by a few department heads over the years and one library employee in 23 years who had to complete rehabilitation did not justify the city’s suspicionless testing.

The 9th Circuit further concluded that the library page position was not “safety sensitive” in nature. Jobs are “safety sensitive” if they involve work that may pose a great danger to the public. Unlike the library page position, jobs in this category often involve work with heavy machinery or hazardous chemicals.

Moreover, the 9th Circuit rejected the city’s argument that pre-employment testing for the library page job was justified because of the city’s interest in protecting children. The court observed that the library page position had no in loco parentis responsibility for unattended children in the library and, in fact, could be filled by a high-school student.

Lanier v. City of Woodburn , 9th Cir., No. 06-35262 (March 13, 2008).

Professional Pointer: A public employer should carefully review its drug testing policies with specific attention to pre-employment and random testing. Policies that require pre-employment or random screening of all positions without regard to job duties may run afoul of the Fourth Amendment. Public employers are well-advised to ensure that only those positions with “safety sensitive” job duties are subject to suspicionless testing.

Lori K. Mans is an attorney in the Jacksonville, Fla., office of Constangy, Brooks & Smith LLC .

Editor’s Note: This article should not be construed as legal advice. 
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