Pre-Employment Drug Testing Rejected

Feature: Pre-Employment Drug Testing Rejected

Pre-Employment Drug Testing Rejected
Employers are advised that state and federal law should always be considered before adopting mandatory pre-employment drug testing policies.
By James E. Hall, Mark T. Kobata and Marty Denis

n February 2004, Janet Lanier applied for a library "page" position with Woodburn Library in Oregon. It was a position that required her to retrieve and re-shelve books, and occasionally work a youth service desk. Woodburn made Lanier a conditional offer of employment, subject to a background check and pre-employment drug and alcohol screening. The city had adopted a drug and alcohol policy in 2002 that required that all job candidates pass a drug and alcohol test, and that individuals working with children undergo an employment history and criminal record review.

Woodburn withdrew its job offer after Lanier refused to agree to the tests.

Lanier filed a lawsuit in the U.S. District Court for the District of Oregon alleging that Woodburn violated the Fourth Amendment of the U.S. Constitution and the Oregon state constitution, both of which preclude unreasonable searches and seizures. The district court held that Woodburn’s policy was unconstitutional.

On appeal to the U.S. Court of Appeals for the 9th Circuit, the court reversed, and held that while Woodburn’s policy was unconstitutionally applied, it was not facially invalid. Given that certain city jobs directly affect public safety, suspicionless drug and alcohol screening is reasonable with regard to those employees. However, concerns regarding Lanier’s contact with children were not sufficiently substantial or particularized to justify testing, and library employees are not in a position to influence children. Lanier v. Woodburn, 9th Cir., No. 06-35262 (3/13/08).

Impact: Employers are advised that state and federal law should always be considered before adopting mandatory pre-employment drug testing policies.

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James E. Hall, Mark T. Kobata and Marty Denis are partners with the law firm of Barlow, Kobata and Denis, with offices in Los Angeles and Chicago. E-mail editors@workforce.com to comment.