Ninth Circuit Rules Drug-Testing Policy, As Applied, Unconstitutional

March 13, 2008 - The Ninth Circuit Court of Appeals today ruled that a City of Woodburn pre-employment drug-testing policy is unconstitutional, as applied to Janet Lynn Lanier. Lanier in 2004 had applied to be a page at Woodburn Library.

The Ninth Circuit ruling affirms, in part, the earlier ruling of U.S. District Court Judge Garr M. King. The ACLU represents Lanier, who refused to submit to the test on the grounds that it was unconstitutional. The city subsequently withdrew its offer of employment.

In upholding the ACLU's argument that the drug testing is unconstitutional, the Ninth Circuit said the City of Woodburn "failed to demonstrate a special need to screen a prospective page for drugs." The Court went on to clarify that this ruling did not mean that all pre-employment drug testing was unconstitutional, citing that some jobs (e.g., police officer) could constitutionally require pre-employment drug screening.

"This is an important victory for people applying for public positions that are not safety-sensitive jobs," said David Fidanque, Executive Director of the ACLU of Oregon.  "ACLU has long believed that the Fourth Amendment does not broadly allow for suspicionless searches, such as mandatory drug testing. Ms. Lanier stood up for her privacy rights, and the ACLU is pleased that the Ninth Circuit has agreed with Judge King that she was correct in this stance."

Because Judge King’s decision was upheld in part, the case returns to District Court to determine what damages will be awarded.

Steven M. Wilker of Tonkon Torp LLP was the ACLU of Oregon’s cooperating attorney in this case.


Previous reports:

March 2006: In February 2004, Janet Lanier applied for a library-page position with the City of Woodburn. When the City offered Ms. Lanier the job, they conditioned her employment on her taking and successfully passing a pre-employment drug and alcohol urinalysis test. The City had no particular suspicion that Ms. Lanier had a problem with either drugs or alcohol, but required her to take the urinalysis test solely as a matter of policy. Ms. Lanier refused. She wanted to accept the position but she believed that the pre-employment drug and alcohol screening violated her constitutional right to be free from an unlawful government search. In response, Ms. Lanier wrote the City and offered additional references but explained that she would not take the pre-employment test. As a result, the City withdrew its offer of employment.

The ACLU agrees with Ms. Lanier there was no lawful basis under either the Oregon or U.S. constitutions to allow the City to require a pre-employment drug test for librarian-pages. We are now representing Ms. Lanier in her lawsuit against the City of Woodburn asserting violation of her 4th Amendment rights.

On November 14, 2005, U.S. District Judge Garr King agreed with us and issued an opinion holding that by requiring pre-employment, suspicionless, drug and alcohol urinalysis testing the City violated the U.S. and Oregon constitutions. The Court examined the evidence submitted by the City, noting that there was virtually no evidence of drug problems with librarian employees. Indeed, the Woodburn head librarian testified that in her 33 years with the library there was only one instance of an employee with a drug or alcohol related problem. The Court stated that such evidence was insufficient to warrant drug testing for all prospective employees. To pass constitutional muster, the City must satisfy a special needs test for such testing. This can be accomplished in positions that involve safety-sensitive tasks or positions that include drug interdiction in the scope of the work, for example. Neither case was true here. Without such evidence, the City’s reliance on merely having a drug-free workplace or economic efficiency was insufficient to outweigh the burden upon individual privacy. The Court held that the City’s policy violated both the 4th Amendment of the U.S. Constitution as well as Article I, section 9 of the Oregon Constitution.

While Judge King resolved the constitutional issue of the case, the City is still challenging the award of damages. A brief trial is scheduled for mid-March. The City has stated that it will appeal the decision to the 9th Circuit Court of Appeals. ACLU cooperating attorneys Steven Wilker, Don Marmaduke and Paul Conable of Tonkon Torp are representing Ms. Lanier. 


December 2004: Early in 2004, Jan Lanier applied for and was offered a part-time job as a Library Page at the City of Woodburn’s Public Library. Her excitement about working at the Library soon dimmed when she was told that City policy required her to complete a pre-employment drug and alcohol screening as a condition of accepting the position. Everything about a urinalysis test seemed invasive to her.

Jan decided it didn’t feel right to give up her rights to privacy and the job offer was rescinded. When Jan contacted the ACLU of Oregon, we agreed to bring a legal challenge to the City’s policy because for nearly twenty years, ACLU has been troubled by the way employers (public and private) and public schools have required drug tests of individuals even when there is no suspicion that that individual is using illicit drugs.

The U.S. Supreme Court has said that drug tests are searches. Both the Oregon and federal constitutions protect individuals from unreasonable searches of their person by or at the direction of the government. The Supreme Court has further held that government employers are subject to the Fourth Amendment. While not every warrantless and suspicionless drug test by a government employer violates the Constitution, such tests have been permitted only where there is a “special need, beyond the normal need for law enforcement." For example, positions that are safety-sensitive or involve firearms or drug interdiction have been held to be sufficiently special to permit such tests. But, the government’s desire to project an image of a drug-free workplace does not constitute a special need. Thus, the Supreme Court found unconstitutional a Georgia statute requiring candidates for public office to submit to a drug test.

The issue of drug testing by government employers has not been litigated in our state or federal courts. Until now.

The ACLU of Oregon has filed a lawsuit on behalf of Jan Lanier with hopes of determining that Woodburn’s mandatory, suspicionless drug testing requirement of prospective employees is an unreasonable search and therefore, unconstitutional under Article I, Section 9 of the state constitution and the Fourth Amendment of the federal constitution.

Steven Wilker is the ACLU of Oregon’s lead cooperating attorney representing Jan Lanier, along with his colleagues Don Marmaduke and Paul Conable from the Portland law firm of Tonkon Torp.