Pre-employment drug testing and Matthew Bender & Co. Under Matthew Bender's program, applicants that Matthew Bender had decided to hire were given a conditional offer of employment, subject to a final medical exam. During that exam, a urine test for drugs was conducted on all applicants. The clinic that performed the exams would then issue each applicant a medical rating based on the results of the exam. A positive drug test resulted in an automatic failing rating, but since other medical conditions could also result in such a rating, Matthew Bender itself never knew with certainty why an applicant was rejected. The test was ultimately challenged when one of these "conditional employees" brought suit, claiming the test violated his right of privacy.
In upholding Matthew Bender's drug testing procedure, the court stressed two important factors. First, the test results were confidential, so any intrusion on the applicants' privacy rights was minimized. Second, only applicants were tested. Testing current employees could be coercive, but a potential applicant can avoid any privacy intrusion by simply not applying for the position. On these bases, the court ruled that prospective employees could be tested.
The issue of whether current employees could be tested was examined the following year in Luck v. So. Pacific Transportation Co. There, an employee was fired when he refused to submit to a surprise, random drug test. The employee claimed that such a demand violated his right to privacy. The court and the jury agreed, and awarded the employee half a million dollars in damages. The Court of Appeal allowed the judgment to stand, holding that in the case of existing employees, the employer must demonstrate a "compelling interest" for impinging on an employee's right of privacy. The court did not say that drug testing of current employees is inherently unconstitutional, but said that there must be a direct connection between the employee's duties and the potential harm of the drug use.
So, given these decisions, an employer can safely drug test applicants, but not current employees, correct? Unfortunately, the law is never that simple. Enter the recent decision of Soroka v. Dayton Hudson Corp. Soroka resulted from a psychological test that Target stores were using to test prospective security guards. Although this "Psychscreen" test was intended to identify emotionally unstable applicants, certain questions arguably revealed the applicants' sexual orientations. This led to legal action designed to enjoin Target from using the test. The Soroka court was not persuaded by the earlier ruling in the Matthew Bender case. Instead, the court ruled that everyone is protected by the same right of privacy, regardless of their status as an employee or mere applicant. Although Soroka was not a drug testing case, the reasoning is analogous. The right of privacy of an employee, prospective or otherwise, cannot be violated absent a compelling reason. Such compelling reasons have not been defined, but would probably include safety and security. The laudable goal of providing a drug free work place is not considered a compelling reason.