Loder v. City of Glendale

• Decision Date: 06 January 1997
• Docket Number: No. S043548,S043548
• Court: California Supreme Court
• Parties: , 927 P.2d 1200, 65 USLW 2461, 12 IER Cases 545, 97 Cal. Daily Op. Serv. 136, 97 Daily Journal D.A.R. 222 Lorraine LODER, Plaintiff and Appellant, v. CITY OF GLENDALE et al., Defendants and Appellants.

Page 696

59 Cal.Rptr.2d 696

14 Cal.4th 846, 927 P.2d 1200, 65 USLW 2461, 12 IER Cases 545,

97 Cal. Daily Op. Serv. 136,

97 Daily Journal D.A.R. 222

Lorraine LODER, Plaintiff and Appellant, v. CITY OF GLENDALE et al., Defendants and Appellants.

No. S043548.

Supreme Court of California.

Jan. 6, 1997.

Mark Rosenbaum, Paul Hoffman, Gary Williams, Krakow & Kaplan, Marvin E. Krakow, Steven J. Kaplan and Eliza Vorenberg, Los Angeles, for Plaintiff and Appellant.

Scott H. Howard, City Attorney, Ron R. Braden, Assistant City Attorney, Jackson, Tufts, Cole & Black, Gerald Marer, Goldstein, Kennedy & Petito and Charles H. Goldstein, Los Angeles, for Defendants and Appellants.

De Witt W. Clinton, County Counsel, Los Angeles, Stephen R. Morris, Principal Deputy County Counsel, Cristina L. Sierra, Acting City Attorney, Pasadena, Lawrence S. Newberry, Assistant City Attorney, N. Gregroy Taylor, Karen L. Tachiki, Henry Torres, Jr., Los Angeles, Elise S. Rose, Dorothy Bacskai Egel, K. William Curtis, Kenneth R. Hulse, Roy J. Chastain, Linda M. Nelson, Charles D. Sakai, Sacramento, Daniel J. Popeo, Utica, NY, David A. Price, Sacramento, Sweeney, Mason & Wilson, Roger Mason, Los Gatos, Swidler & Berlin, Robert V. Zener, Kathryn R. Taylor, Washington, DC, Morgan, Lewis & Bockius, Raymond R. Kepner, Richard C. Rybicki, Los Angeles, Littler, Mendelsohn, Fastiff, Tichy & Mathiason, Mark A. de Bernardo, Peter A. Susser, Washington, DC, Paula Champagne, Richard N. Hill, San Francisco, Schachter, Kristoff, Orenstein & Berkowitz, Victor Schachter, Menlo Park and Sharon S. Zezima, San Francisco, as Amici Curiae on behalf of Defendants and Appellants.

GEORGE, Chief Justice.

In this case we address a challenge to an employment-related drug testing program adopted by the City of Glendale in 1986. Under the program in question, all individuals who conditionally have been offered new positions with the city (both newly hired persons and current city employees who have been approved for promotion to a new position) are required to undergo urinalysis testing for a variety of illegal drugs and alcohol as part of a preplacement medical examination that the city traditionally has conducted prior to hiring or promotion. The drug testing requirement applies to all of the city's employment positions, and is imposed without regard to whether the city has any basis for suspecting that a particular applicant for employment or promotion currently is abusing drugs or alcohol.

The trial court concluded that the city could not lawfully impose a drug testing requirement for all city positions in either the preemployment or prepromotion context, and then undertook the substantial task of reviewing detailed job descriptions of 80 job categories (many of which included a number of separate job classifications) and, with regard to each category and classification, balancing the intrusion upon reasonable expectations of privacy against the governmental We granted review to determine the validity of the city's drug testing program under the statutory and constitutional provisions relied upon by plaintiff. As we shall explain, we conclude that the across-the-board drug testing program here at issue is invalid as applied to current employees who have been conditionally approved for promotion, but is valid as applied to job applicants. ¹

[927 P.2d 1203] interests served by drug testing. The trial court ultimately determined that the challenged drug testing program was invalid as to classifications falling within 36 of the designated categories, and valid as to the remaining positions. On appeal, the Court of Appeal agreed with the trial court that the city could not require drug testing for all city positions, in either the preemployment or the prepromotion setting, but concluded that the trial court improperly had approved drug testing for a significantly larger group of employment positions than was constitutionally permissible.

I

A

From 1983 to 1985, the city's personnel department observed an increase in the number of city employee disciplinary cases in which substance abuse appeared to be a significant factor, as well as an increase in the number of city employees who voluntarily referred themselves for treatment for substance abuse. In response, the city instituted a two-month pilot project (beginning in November 1985) under which drug testing was conducted on all applicants for city employment. Of the 48 applicants who were tested during the pilot project, 10 (approximately 21 percent) tested positive for drugs. Thereafter, in mid-1986, the city's civil service commission adopted the drug and alcohol screening program that is challenged in this case.

For at least 10 years prior to the 1986 adoption of the program, the city had required every applicant who had been conditionally approved for hiring or promotion to undergo a preplacement medical examination paid for by the city and conducted at the medical offices of a city-designated physician. As part of the preplacement medical examination, applicants were required to provide a urine sample for analysis for various medical conditions. In adopting the drug and alcohol testing program here at issue, the civil service commission approved the addition of a drug and alcohol screening component to this preexisting preplacement medical examination process.

The record discloses that the medical examination and drug and alcohol screening process operates in the following manner. ² Applicants for employment or promotion are notified in the city's employment bulletin (which announces job openings) that, as part of the selection process, a medical examination, including drug and alcohol screening, is required of all applicants. After an applicant has completed the initial, substantive portion of the application process (consisting, typically, of written and/or oral examinations, performance tests, background and reference checks, etc.), and has been selected by the city for employment or promotion, the applicant is notified that his or her hiring or promotion is conditioned upon successful completion of a preplacement medical examination that includes a drug and alcohol screening component. The personnel department refers all successful applicants to Dr. Robert Newhouse, a Glendale physician, for medical examination and drug testing. The record indicates that Dr. Newhouse had conducted preplacement medical examinations for the city for 10 years prior to its adoption of the drug testing program.

The medical examination and drug and alcohol screening are conducted at Dr. Newhouse's medical offices. When an applicant arrives at the offices, he or she is asked by a After the consent form has been completed and signed, the testing process begins. At the time the city added the drug testing component, it instituted a number of measures designed to prevent fraud or adulteration in the drug testing procedure. First, the applicant is provided a hospital gown to wear and is asked to undress down to his or her underwear. A medical employee then furnishes the applicant an empty, sealed, sterile container, and the seal is broken in the presence of the applicant. Thereafter, a medical employee accompanies the applicant to a restroom and stands in a cubicle next to the applicant's cubicle while the applicant provides a urine sample; the medical employee does not visually observe the urination process. As additional safeguards against potential fraud, blue colored water is used in the toilet bowl to prevent adulteration of the urine sample, and the medical employee checks the temperature of the sample that the applicant has provided. If the urine sample is cold, the applicant is requested to provide another sample.

[927 P.2d 1204] medical employee to sign a written form, consenting to a medical examination and to drug and alcohol testing, and authorizing the release of the test results to the city. The form also asks the applicant to list all medications and drugs that he or she currently is taking, and informs the applicant that a positive result on the drug or alcohol screening test, absent a valid legal explanation for the presence of such drug or alcohol, will result in disqualification from the hiring or promotion process. Applicants who refuse to sign the consent form or to undergo the screening process are considered medically disqualified for employment or promotion, and are advised that the disqualification will remain in effect for the applicant's entire period of eligibility for the position in question. ³

After the applicant has given the urine sample to the medical employee, the sample is tested (in the applicant's presence), using a "dipstick," to determine the presence of blood, sugar, or protein in the urine, as a screen for medical problems. Thereafter, the container is closed and sealed with evidence tape, and the applicant and medical employee both sign a "chain of custody" slip that is placed in a laboratory envelope along with the sample. The applicant subsequently undergoes the remainder of the medical examination, which generally consists of at least the taking of a complete medical history from the applicant, a general physical examination, audiometric testing, and tuberculosis skin testing. ⁴

Thereafter, the laboratory envelope containing the applicant's urine sample is sent to an independent, certified testing laboratory, which examines the sealed sample for signs of tampering and assigns a serial number to the sample to avoid identifying the applicant by name. While the sample is at the laboratory, a positive chain of custody is kept at all times, and the laboratory is secured by magnetically controlled doors.

At the laboratory, the urine sample is tested for the following substances: (1) amphetamines and methamphetamines (including "speed" and "crystal"), (2) benzodiazepines (including Valium, Librium, Oxazepam, Serex, and Dalmane), (3) barbiturates (including Amobarbital,...