High Court OKs Drug Tests of Job Applicants : Law: Justices reject a challenge to a Court of Appeal ruling on the constitutionality of a mandatory urinalysis.

The state Supreme Court, acting for the first time on the controversy of drug-testing in the workplace, on Thursday allowed a private employer to require that job applicants take drug and alcohol tests.

The justices, in a brief order issued without dissent, rejected a challenge to a precedent-setting ruling last November by a state Court of Appeal that found that mandatory urinalysis to detect drug use among job-seekers represented only a limited intrusion on the right to privacy--and did not violate the state Constitution.

The appellate court upheld a pre-employment drug and alcohol screening program administered by Matthew Bender Co., a legal publishing firm owned by the Times Mirror Co., which also publishes the Los Angeles Times.

Lawyers for three job applicants who challenged the tests called the across-the-board screening program “patently unreasonable,” noting that neither public safety nor law-enforcement positions were involved.

The Supreme Court’s denial of review means that for now, the appellate ruling will be binding on trial courts throughout the state.

In other actions Thursday, the high court:

- In a sharp setback to the insurance industry, refused to hear a challenge by auto insurers to Insurance Commissioner Roxani Gillespie’s denial of a 112% increase in assigned-risk insurance rates. An association of insurers that issues policies to more than 1 million motorists without regular coverage contended they were losing more than $2 million a day in assigned-risk policies.

But the court also declined requests by Gillespie and the sponsors of Proposition 103 to assume immediate jurisdiction over more than a dozen lawsuits now in lower courts involving the 1988 insurance reform initiative. Attorneys for Gillespie and Voter Revolt argued that high court intervention could speed resolution of legal questions about the measure by at least a year.

- Let stand a novel ruling by a state Court of Appeal that upheld the criminal conviction of a Hemet man for secretly videotaping his sexual encounters with three women in 1986. The appellate court found that sexual intercourse was a form of private “communication” and that covert taping without the other party’s knowledge was a violation of state privacy laws.

The laws at issue apparently were aimed to prevent surreptitious telephone recording--but the appeal court held they could apply to nonverbal acts as well. The defendant in the case, Michael Francis Gibbons, was fined $4,500 and sentenced to 14 months in jail.

The drug-testing case was one of three such disputes that have emerged recently in state appeal courts.

Last month, an appellate panel in San Francisco, upholding a $485,000 damage award to an employee who was fired after refusing a random test, held that workers in nonsafety-related jobs could not be forced to undergo urinalysis to determine drug use. An appeal court in Los Angeles ruled that a worker’s refusal to submit to even a less intrusive eye test to detect drug use could not serve as grounds for dismissal.

Rex S. Heinke of Los Angeles, an attorney for Matthew Bender, welcomed Thursday’s action by the high court as a “clear signal” that private employers may test applicants, so long as steps are taken to minimize the intrusion on privacy. Heinke noted that the justices may have an opportunity to set further guidelines for testing if and when the two other drug-testing cases--involving the broader question of tests for employees--reach the high court.

A lawyer for the job applicants, Stephen L. Mayer of San Francisco, voiced disappointment with the action, saying any distinction between the privacy rights of applicants and employees was “extremely unfortunate.” Mayer added, however, that some applicant testing--if not performed with proper safeguards--could still be found unconstitutional. “I see today’s action as a cautionary light, rather than a green light, to employers,” he said.

The court’s action Thursday was a test of Californians’ constitutional right to privacy, which was added to the state Constitution by the voters in 1972.

Over the years, the courts have applied the amendment to curb violations of privacy by public officials--such as undercover college classroom surveillances by police. But it remained unsettled whether privacy protections were applicable to employment practices by private companies.

In the Bender case, the drug tests were initiated in 1985 as part of a program for all Times Mirror companies. At the Matthew Bender office in Oakland, three job applicants--Kathleen Wilkinson, Rina Hirai and Francesca Bannerman--refused to take the tests, as part of a medical examination, and were denied jobs. They brought suit, arguing that the tests violated their constitutional right to privacy.

Last November, a state Court of Appeal in San Francisco said that the right to privacy does apply to private companies, but that urine testing of applicants presents only a limited intrusion on privacy rights.

The court noted that job applicants could easily anticipate being asked to take a pre-employment physical examination--and that urinalysis was ordinarily a part of such exams. The company gave advance notice that a job was conditioned on consent to drug testing and steps were taken to minimize the intrusion on privacy--for example, applicants are not observed while furnishing samples, the panel pointed out.