Jury’s Award in Drug-Test Firing Upheld : Privacy: A state appellate court supports a railroad employee who lost her job for refusing to provide a urine sample during a random test. The $485,042 awarded to her by a San Francisco jury stands.

A state Court of Appeal, citing the constitutional right to privacy, on Thursday upheld a $485,042 damage award to a railroad employee who was fired for refusing to submit to an employer-ordered drug test.

The court, ruling in one of the first legal challenges to random workplace drug tests in California, said an employee in a non-safety-related job could not be forced to undergo testing.

The three-member panel noted that the work of a computer programmer in the case did not involve the actual movement of trains or other dangerous activities that the courts have said may justify testing despite its intrusion on privacy.

The court upheld a landmark award by a San Francisco jury against the Southern Pacific Transportation Co. for the wrongful termination of Barbara A. Luck, who was dismissed after she refused to provide a urine sample as part of an unannounced, company-mandated test for drugs, alcohol and medications.

The panel rejected the company’s contention that the right to privacy, placed in the state Constitution by the voters in 1972, did not apply to urinalysis. It also turned down Southern Pacific’s claim that a private employer--unlike a governmental agency--is not required to observe privacy guarantees.

“Appellate courts have repeatedly held that the right to privacy is an inalienable right which no one may violate,” Justice William R. Channel wrote in a 47-page opinion joined by Justice James F. Perley.

The panel held that Southern Pacific’s invasion of Luck’s privacy was unjustified and that the company had fired her in “bad faith,” violating an implied agreement with the worker that she could only be dismissed for good cause.

However, the court, over a dissent by Justice Marc Poche, rejected a separate claim by Luck that her firing also constituted a violation of “public policy”--an aspect of the case that could have further expanded the company’s liability.

The ruling was the third by an appeals court in a drug-testing case in recent months that has held that the state constitutional right to privacy applies to private employers, as well as the government. However, in one case--now pending before the state Supreme Court--an appellate court upheld drug testing for job applicants, finding that a mandatory urine test was only a “limited invasion of privacy” and did not violate the state Constitution.

A spokesman for Southern Pacific said the company was “disappointed” with Thursday’s ruling and will consider an appeal to the state Supreme Court.

Ellen Lake, an Oakland attorney representing Luck, praised the decision for clearly distinguishing between drug tests for non-safety jobs and safety jobs--such as for employees carrying firearms or working in nuclear power facilities.

“This ruling is very important because it’s the first one that really defines the parameters for drug testing of private employees and upholds the need for a compelling interest for testing,” Lake said. “This will make employers rethink their drug-testing policies and do fewer random, across-the-board testing in the workplace.”

Luck began work for Southern Pacific in 1978, rising from a signal department draftsman to computer programmer by 1985. In that capacity, she collected information for the engineering department, wrote computer programs, compiled reports on employee activities and kept track of the location of company equipment.

In July, 1985, she and all other Southern Pacific engineering department employees were told to provide urine samples in connection with drug tests. She refused, saying she considered the request offensive, and was fired for insubordination.

Luck contended in a lawsuit in San Francisco Superior Court that she had been wrongfully terminated and had suffered intentional infliction of emotional distress. A jury upheld Luck’s claims, awarding her $180,092 for lost pay and benefits, $32,100 for emotional distress and $272,850 in punitive damages.

The company took the case to the Court of Appeal, arguing that in jobs like Luck’s, there were indirect and potential safety factors that justified drug tests. In any event, the railroad said, other non-safety interests--such as efficiency, competence and ensuring public confidence in the industry--were sufficient to justify the tests.