Ninth Circuit Holds Preemployment Suspicionless Drug Testing Unconstitutional

The Ninth Circuit yesterday issued its anxiously awaited Opinion in Lanier v. City of Woodburn, holding that preemployment drug testing violated plaintiff’s privacy rights under the 4th Amendment of the United States Constitution and Article I, Section 9 of the Oregon Constitution. Lanier had sued the municipal employer, alleging that its policy requiring job applicants to pass pre-employment drug tests was unconstitutional. The 9th Circuit affirmed the trial court’s grant of summary judgment for the plaintiff concluding that the policy was unconstitutional as applied to Lanier who had applied for a job as a library page, though the court held the policy was not facially invalid.

The city had argued that it had a substantial and important interest in screening library pages mainly because drug abuse is a serious societal problem and might have an adverse impact on job performance. The court cogently rejected these arguments reasoning that prior decisions of the United States Supreme Court "make 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 high risk or safety-sensitive tasks must be "special" and not merely "symbolic."

Alan Milstein