Court Asked to Bar Job Applicant Drug Tests

A state Court of Appeal, reviewing a far-reaching test of the right to privacy, was asked Tuesday to bar private employers from requiring job applicants to undergo tests for drug and alcohol abuse.

An attorney for three job-seekers who refused testing at a legal publishing firm urged the panel to reinstate a trial court injunction that had prohibited the practice as a violation of a 1972 amendment to the state Constitution establishing privacy as a specifically guaranteed right.

“Drug testing, as we see it, has numerous vices that improperly infringe on privacy,” said Steven L. Mayer, a San Francisco lawyer. The tests do not effectively deter high-risk drug and alcohol abuse and should not be given a “green light” in California, Mayer said.

But an attorney for the defendant company in the case argued that the constitutional provision should not be applied to tests by a private employer. And even if it is applied, he said, the court should hold that drug testing is still a permissible means of combatting the increasing problem of drug and alcohol abuse.

“Drug use is one of the most serious social problems our country faces,” said Rex S. Heinke of Los Angeles, representing Matthew Bender & Co., a wholly owned subsidiary of Times Mirror Co., which also publishes the Los Angeles Times. “The outcome in this case will affect thousands and thousands of workers in this state and hundreds, if not thousands, of employers.”

The hearing was held in the first appellate court review of testing by a private employer in the state. Several challenges have already been mounted against testing by governmental agencies. During its last term, the U.S. Supreme Court upheld federal regulations requiring drug tests for railroad workers after accidents and also permitted tests of Customs Service workers in certain jobs.

At issue in the case is to what extent, if any, the privacy provisions of the state Constitution apply to employment practices by private firms. Despite passage of the amendment about 17 years ago, that question has remained unresolved by the state Supreme Court.

Civil libertarians argue that the guarantee should be broadly applied to protect workers in the public and private sectors. Employers reply that the amendment was intended only to curb governmental or “state action” and, at the most, should be invoked to prevent excessive collection and dissemination of credit data and other personal information by a private firm.

The three-member appeals panel peppered attorneys with questions in a hearing Tuesday that lasted nearly 90 minutes--an unusually long period for an appellate court case. The jurists acknowledged several times that they are in largely uncharted legal waters and gave little clue how they will rule on the thorny issues in the dispute. A decision is due by November.

Appellate Justice Gary E. Strankman noted that while there was no question that the right to privacy protected one’s bedroom, the issue was “not so neat and clean” when it came to drug tests by a private company.

Appellate Justice Betty Barry-Deal also seemed to reflect uncertainty about the outcome, as did the third panelist, Appellate Justice Clinton W. White. “I came in here with some preconceived notions,” White remarked at the conclusion of the hearing. “Now, they’ve all been changed.”

The tests at issue were launched in 1985 as part of a program for all Times Mirror companies. Company officials expressed concern over what they said was an “increasing incidence” of drug and alcohol abuse by members of its work force and pointed to studies indicating that drug users were far more likely to have accidents and far less productive than other workers. Similar testing has been instituted by an estimated one-third of the nation’s largest companies.

Three applicants at the Matthew Bender facility in Oakland refused to take the tests and were denied jobs. They brought suit, challenging the practice as an invasion of privacy. Last year, in the first ruling of its kind, an Alameda County Superior Court judge issued an injunction barring the tests pending a trial. Later, the state Court of Appeal suspended the injunction, allowing the tests to resume while it reviewed the case.

In Tuesday’s hearing, attorney Mayer argued that unlike some governmental agencies, the legal publishing firm could not justify the tests as necessary to protect public safety, national security or some other important interest. In the absence of such an interest, a private employer--just like a public employer--should be barred from requiring such tests as a condition of employment, he said.

Heinke contended there was “not a shred of evidence” from ballot arguments or other historical data that indicated the voters, in adopting the 1972 amendment, meant to apply privacy guarantees to curb drug testing.

If the electorate wished to bar or restrict such testing, the way was open to do so through the legislative or initiative process, Heinke noted. But in the meantime, he said, the courts should not themselves expand the Constitution to prohibit testing.