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Ninth Circuit Limits Drug Testing In The Public Sector

Volume 7, Issue 3
March 29, 2008

On March 13, 2008, the Ninth Circuit Court of Appeals issued a decision in Lanier v. City of Woodburn limiting the ability of public employers to conduct pre-employment and other "suspicionless" drug tests. The Court found that the City's policy requiring all job candidates to pass a pre-employment drug and alcohol test as a condition of employment was unconstitutional as applied to an applicant for a library page position. The Court determined, however, that such testing could be constitutional for other positions if the City could articulate a "special need" for testing without suspicion.

In 2004, the City of Woodburn rescinded an offer of employment to Janet Lanier to work as a library page after Ms. Lanier refused to submit to a pre-employment drug and alcohol test. The library page position in question required employees to retrieve books from the book drop and return them to the shelves and to occasionally staff the desk in the youth services area. The City argued that it had substantial and important interests in screening library pages for three reasons, including: (1) drug abuse is one of the most serious problems confronting society today; (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. Ms. Lanier claimed that the City's screening program violated her rights under the Fourth Amendment to the United States Constitution and the Oregon Constitution.

The Ninth Circuit Court noted that the City's drug screening policy unquestionably constituted a search under the Fourth Amendment. Thus, absent individualized suspicion to test Ms. Lanier, the City was required to demonstrate "special needs" to apply its pre-employment screening program to her position. Inasmuch as library pages did not perform high-risk, safety-sensitive tasks nor did their job duties pose substantial risks to public safety, the City failed to prove a special need to require Ms. Lanier to be subject to drug screening.

This decision delivers a big blow to public employers, whose policies are subject to constitutional scrutiny. The Court has determined that pre-employment and other "suspicionless" drug testing programs (such as random tests) cannot be automatically applied by public employers to all employees. Instead, public employers must consider the type of position at issue and the duties of that position. According to the Ninth Circuit Court, suspicionless testing may be constitutional for positions which are "safety-sensitive," such as those positions which require work that poses a danger to the public.

The full text of the Ninth Circuit Court's Opinion can be found by clicking here.

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