On March 13, 2008, the Ninth Circuit Court of Appeals issued a decision limiting public employer drug testing. In Lanier v. City of Woodburn, the Ninth Circuit held that the City’s policy requiring all job applicants to pass a pre-employment drug test as a condition of employment was unconstitutional as applied to an applicant for a library page position. However, the Ninth Circuit signaled that a pre-employment drug testing program would not be unconstitutionally applied where the employer could articulate a special need for testing without suspicion.

Factual Background

The City’s personnel policies included a provision calling for pre-employment drug and alcohol testing of all persons offered employment. “The City of Woodburn requires a pre-employment drug and alcohol screen for all prospective applicants. The candidate of choice for a City position must successfully pass the drug and alcohol screen as a condition of the job offer.”

In 2004, the City offered Janet Lanier employment as a page at Woodburn’s public library. Pages perform tasks such as retrieving books from the book drop and returning them to the shelves. Occasionally, they may staff the desk in the youth services area, where materials for children and teenagers are housed. Lanier, however, declined to be tested and the City rescinded its offer of employment to her. She sued alleging that the City’s policy amounted to a suspicionless search and seizure in violation of her rights under Fourth Amendment to the United States Constitution and under Article I, Section 9 of the Oregon Constitution. The trial court agreed with Lanier.

Ninth Circuit Holding

On appeal, the City argued that it had a substantial and important interest in screening library pages. It cited three reasons: (1) drug abuse is one of the most serious problems in 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. The Ninth Circuit disagreed, stating: “No doubt these problems are worthy of concern, but there is scant, if any, indication that on account of them, the City has ‘special needs’ of sufficient weight to justify an exception to the Fourth Amendment’s requirement of individualized suspicion.” Further, the appellate court held that in order to justify the need for suspicionless drug testing, the City needed a far more specific and substantial reason(s) than those set forth above. Among other things, the Court noted that the City failed to identify any indication of a concrete danger that necessitated pre-employment drug testing and found that the link between the City’s goal of protecting children and drug testing a part-time library page was “tenuous at best.”

On the other hand, the Ninth Circuit held that the City’s policy was not unconstitutional on its face and specifically indicated it was not expressing an opinion as to whether the policy could be applied to applicants in other positions. The Court noted that in cases where suspicionless drug testing has been upheld, it generally has involved safety sensitive positions (such as transportation workers, employees who work with heavy machinery or hazardous materials), armed law enforcement personnel, and employees who have a direct responsibility for children.

Guidance for Employers

Public Employers: Public employers should re-evaluate their drug testing policies with regard to applicants/employees in positions that clearly are not safety sensitive. While this decision does not affect post-accident drug testing or other drug testing based on reasonable suspicion, preemployment and other forms of suspicionless drug testing for employees (such as random testing) in non-safety sensitive positions is now considered unconstitutional.

Private Employers: This decision applies only to public employers. It does not apply to the drug testing policies of private employers, who may conduct post offer pre-employment drug testing of job applicants with limited legal risks.

Drug testing is becoming increasingly complex. If we can answer your questions or help you evaluate your policies, we would be pleased to do so.