Court Prohibits Firm’s Tests of Job Seekers for Alcohol, Drugs

In the first ruling of its kind in California, an Alameda County judge Wednesday prohibited a private employer from requiring job applicants to pass tests that detect the use of alcohol and illegal drugs.

Superior Judge Michael E. Ballachey issued a preliminary injunction barring such testing as a condition of employment, finding that two rejected job seekers challenging the practice were likely to prevail when the case comes to trial.

Ballachey said there was insufficient evidence that testing deters drug use or conclusively shows whether an applicant will present a risk in the workplace. He acknowledged that drug abuse was “undermining the very fabric of society”--but said across-the-board testing appeared to violate the state constitutional right to privacy.

“I don’t want you to leave this courtroom thinking I’m oblivious to the problem employers are struggling with,” the judge told attorneys during a hearing in the case. “But I am concerned with what seems to be a Draconian solution. . . . This whole program runs afoul of the Constitution.”

Major Rights Test

The order set the stage for a far-reaching test in state appellate courts over the rights of private employers to screen job applicants for substance abuse. The case also may resolve a broader, still-unsettled issue of whether the state constitutional right to privacy, enacted by the voters in 1974, applies to private businesses as well as government.

Ballachey admitted that the law’s applicability to private employers remains in doubt. And lawyers representing the defendants in the suit, Times Mirror Books and Matthew Bender & Co., said they would immediately ask the state Court of Appeal to overturn the injunction.

“We’re disappointed in the ruling and believe there are important constitutional questions here that must be resolved,” said Rex S. Heinke of Los Angeles, an attorney for the defendants. “We think an employer must have the right to determine who is a qualified employee . . . and determine whether an employee has used substances illegally or in excessive quantities.”

American Civil Liberties Union lawyers and other attorneys who brought suit opposing the testing praised the judge’s order.

“The injunction recognizes the strength of the constitutional right to privacy,” said Christina Hall, a San Francisco lawyer representing the plaintiffs in the case. While the injunction applies only to Bender, “if I were a private employer in California I would seriously consider ending all such tests right now.”

Public, Private Issue

The case has emerged as both private and public employers, concerned over safety and productivity in the workplace, have instituted mandatory testing programs to identify both job holders and applicants who use illegal drugs.

Recent surveys show that about one-third of the country’s largest private firms now impose some form of drug and alcohol testing on workers.

Many lawsuits challenging the practice have met with mixed results in the courts. The U.S. Supreme Court, in the term beginning next fall, is set to review two conflicting federal appeals courts rulings on the issue--one striking down mandatory drug tests for railroad workers involved in major accidents, the other allowing such tests for applicants for drug-enforcement jobs with the U.S. Customs Service.

Suits in California thus far have been aimed at the policies of public employers and, in some instances, private employer testing of workers already on the payroll.

The case here was brought by two UC Berkeley graduates claiming they were improperly denied writing and editing jobs after they refused to take drug tests required by Matthew Bender, a legal publishing firm and subsidiary of Times Mirror Books.

Kathleen Wilkinson of Berkeley and Rina Hirai of Concord contended that across-the-board drug and alcohol screening violates the state Constitution and state statutes that prohibit unfair business practices and the disclosure of confidential medical information.

Lawyers for the company replied that employers are lawfully entitled to determine an applicant’s medical history and that testing for drugs and alcohol was no more an invasion of privacy than testing for such ailments as diabetes.

Company officials said that drug tests for applicants are required by all Times Mirror firms--including the Los Angeles Times--in the belief that all employees have the right to work in a drug and alcohol-free environment. The tests are part of an overall program involving education, detection and treatment, the company said.

Matthew Bender has stopped hiring new employees in California, pending further developments in the suit, company attorneys said.