Loder: City drug testing policy is unfair

Editor's note: Glendale attorney Lorraine Loder sued the city in 1986 over
its policy of drug testing some of its employees, setting in motion a legal
battle that went all the way to the Supreme Court. The court refused to
hear her case on Oct. 6. The NewsPress asked Loder to share her thoughts
on the issue.

Whether it's an innate personality trait or my reaction to growing up in a
small house shared by a lot of people, I am a strong advocate of the right
to privacy.

It was my belief in the right of people to be free from the intrusive eyes
of others that led me to sue the city of Glendale nearly 12 years ago.

In 1986, the city of Glendale adopted a program under which it would
subject to a drug test all of its new employees and all employees who had
been approved for promotion. Each such employee would have to provide a
urine sample that would be tested for a long list of both illegal drugs and
legal prescription drugs.

When I first heard about Glendale's drug testing program, I was
particularly outraged that it covered employees who had such a good work
record that they had been approved for promotion.

The usual excuse for drug testing in the workplace is that drug tests allow
employers to weed out those who are a danger in the workplace or whose drug
or alcohol use has or will impair their ability to perform their jobs.

In the case of employees approved for promotion, there was clearly no
reason to suspect that their performance was being impaired. To the
contrary, their performance had been exemplary.

And, jobs having nothing to do with public safety and not involving the
operation of dangerous equipment were covered by the testing program.

Thus, the tests were not targeted at eliminating a dangerous workplace,
either.

I, therefore, filed a lawsuit to challenge the city's testing program. I
felt that the program was considerably broader than was reasonably
necessary and that it trampled on the privacy rights of the vast majority
of the city's workers those who had never used illegal drugs.

In challenging Glendale's drug testing program, I had no intention of
removing the city's ability to deal with real problems in its workforce.

First, I did not challenge the city's right to perform drug tests on people
who perform public safety jobs from police officers to heavyequipment
operators who the city wants to ensure are not impaired by the use of drugs
or alcohol on the job.

Nor did I question the city's right to test employees whose behavior raised
suspicions that they were using or affected by illegal drugs.

But, with respect to the dozens of job categories in the city of Glendale
that do not involve safety issues, I strongly believe that every employee
or potential employee has the right to his or her privacy.

Unless and until the city has some reason to suspect drug or alcohol use, a
person should not have to submit to a drug test. Why assume everyone may be
committing a crime?

Even if the city's worst fears were true, and 10% or even 20% of its
prospective or current employees used drugs of some kind, that would still
mean that 80% to 90% of its workforce were subjected to a demeaning,
embarrassing test for no reason.

And, in order to ensure an accurate test, that same 80% to 90% of the
workforce would be required to reveal all of the legal medications that
they are taking information that is none of the city's business.

Why, then, not limit drug testing to those people who gave some indication
that they may be abusing drugs? Why treat everyone as potential drug abusers?

Ultimately, the California Supreme Court agreed with me on some issues and
disagreed on others.

With respect to current employees, the court held that the city could not
test all people in every job category who wanted a promotion. The court
found that current employees do have an expectation and a right to privacy
in the workplace.

And the city of Glendale violated that right of privacy by requiring drug
tests without any basis for suspecting drug use unless the employee worked
in a safetysensitive job. On the other hand, the Supreme Court decided for
two reasons that the city did have the right to require a drug test of its
newly hired employees.

First, the city already required a medical exam of all new hires and the
drug test would be done during that exam, limiting the intrusiveness of the
test. Second, the city had not had the ability to observe its new hires in
the past to detect possible drug use, in contrast to its current workforce.

On Oct. 6, the United States Supreme Court voted not to hear the case,
leaving the California Supreme Court's opinion to stand.

Glendale attorney Lorraine Loder practices business law in Los Angeles.