Washington Constitution Article 1, Section 7: the Argument for Broader Protection Against Employer Drug Testing

• Publication year: 1993

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 16, No. 3SPRING 1993

COMMENTS

Washington Constitution Article 1, Section 7: The Argument for Broader Protection Against Employer Drug Testing

Ken Davis(fn*)

I. Introduction

As the United States Supreme Court further restricts the civil liberties of individuals through its denial of protection under the United States Constitution, the supreme courts of various states, including Washington, have increasingly been called on to re-extend these liberties through their own constitutions.(fn1) One example of this restriction of individual rights is reflected in the recent United States Supreme Court Fourth Amendment decisions regarding employer drug testing of employees without a basis of individualized suspicion of drug use.(fn2) In these decisions, the Court continues to erode the privacy rights of employees against drug testing by adopting a restrictive interpretation of the Fourth Amendment. State courts, in response, should attempt to protect these rights through an independent interpretation of their analogous search and seizure provisions.

To date, the Washington Supreme Court has yet to decide whether random drug testing in the absence of individualized suspicion is constitutionally sound.(fn3) The issue is ripe for review. The historical basis of the Washington constitutional provision and recently established precedent provide a sound foundation for the Washington court to rule that the Washington Constitution grants greater protection from employer drug testing than its federal counterpart.

This Comment will analyze Article 1, Section 7 of the Washington Constitution, the search and seizure provision, and conclude that this provision should be construed to provide greater protection to employees against employer drug testing absent individualized suspicion than the Fourth Amendment does. The scope of this Comment, however, is limited to the rights of state employees with respect to suspicionless drug testing. The rights of federal employees are not included in this analysis because they are protected against suspicionless drug testing only by the Fourth Amendment, not by the analogous Washington provision. Moreover, Article 1, Section 7, like the Fourth Amendment, only protects individuals against state action, not private action.(fn4) Thus, the drug testing programs that are germane to the topic of this Comment are those mandated by state government. The scope of this Comment is also limited to employer drug testing of employees after the creation of the employer-employee relationship. That is, this Comment does not specifically address the issue of the constitutionality of pre-employment drug testing as a part of the employee screening process.

Section II briefly summarizes current Fourth Amendment doctrine as to bodily searches not based on individualized suspicion and then presents the most recent decisions of the United States Supreme Court on employer drug testing. Section III discusses the Washington Supreme Court's evolving interpretation of Article 1, Section 7, the Washington Constitution's analogous provision to the Fourth Amendment. From this discussion, Section III concludes that the constitutional history, contemporary Washington precedent, and particular privacy issues implicated by drug testing support increased protection under the Washington Constitution. Finally, Section IV explores how other states have interpreted their state constitutions with respect to drug testing issues, but concludes that this precedent provides little guidance for the Washington Supreme Court.

II. Current Fourth Amendment Analysis: Skinner, Von Raab, and the Demise of the Individualized Suspicion Requirement

The Fourth Amendment provides:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but on probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.(fn5)

Fourth Amendment jurisprudence as to bodily searches not based on individualized suspicion has undergone a thorough transformation under the reign of the Rehnquist court. Until recently, probable cause has been a prerequisite for a full-scale search, whether the search was conducted under the authority of a warrant or under one of the recognized exceptions to the warrant requirement.(fn6) Thus, under the Fourth Amendment, individualized suspicion was a fundamental prerequisite to a bodily search by the government.(fn7) This requirement had been lifted only with respect to prison inmates.(fn8)

However, as a result of two 1989 United States Supreme Court cases decided on the same day, Skinner v. Railway Labor Executives' Ass'n(fn9) and National Treasury Employees Union v. Von Raab,(fn10) the requirement of individualized suspicion to conduct a valid search under the Fourth Amendment seems to have fallen by the wayside. A brief synopsis of these two cases will provide an introduction to current Fourth Amendment doctrine and a brief overview of the current status of the Fourth Amendment as applied to drug testing absent individualized suspicion of drug use.

In Skinner, the Court found that the Fourth Amendment was not violated by Federal Railroad Administration regulations providing for mandatory testing of employees involved with serious on the job accidents, or so called "post-accident" testing.(fn11) Although the tests in question would be administered only after a resulting accident, this program did not require a basis of individualized suspicion because tests were to be made without evidence that the particular employee to be tested was under the influence of drugs or alcohol at the time of the accident.(fn12) The Court found, however, evidence which indicated that alcohol and drug abuse by railroad employees had previously contributed to a number of significant train accidents.(fn13) Thus, although the urinalysis required to administer the test was held to be a search for purposes of the Fourth Amendment, the Supreme Court held that the Fourth Amendment protects only against those searches and seizures that are deemed to be unreasonable.(fn14) In so finding, the Court applied the test for reasonableness, which requires a balancing of the individual's Fourth Amendment interest in a reasonable expectation of privacy(fn15) against the government's interest in conducting the search.(fn16)

Specifically, the Court found that "special needs" such as public safety may justify departure from the normal requirements of a warrant and probable cause.(fn17) With respect to the railroad's drug testing program, the Court found that employees working in these types of safety-sensitive positions have a diminished expectation of privacy. The government interest, however, to deter drug use in these positions and ensure public safety, was found to be compelling.(fn18) Therefore, the Court upheld the testing program without addressing the individualized suspicion requirement.(fn19)

The Court came to a similar conclusion in Skinner's sister case, Von Raab.(fn20) There, the Court considered the validity of the United States Customs Service drug testing program.(fn21) In contrast to Skinner, Von Raab goes considerably further toward the elimination of the requirement of individualized suspicion.(fn22) First, the testing conducted in Von Raab was for employees seeking employment, transfer, or promotion within the agency, and the testing was not merely conducted after the occurrence of a serious accident, as in Skinner.(fn23) Second, there was no evidence of a history of drug or alcohol abuse among the employees of the Customs Service, as there was among the railroad employees in Skinner.(fn24) Despite these differences,(fn25) the Court nevertheless held that the government interest in testing and ensuring that drug users are not promoted within the agency, thereby adding to the safety of the borders and to the integrity of the agency, was sufficiently compelling to validate the search in the absence of individualized suspicion.(fn26)

Thus, after Skinner and Von Raab, the United States Supreme Court no longer requires under the Fourth Amendment that the government suspect a particular individual of drug or alcohol abuse before testing for these substances. As long as the government can show that its need to search outweighs the individual's reasonable expectation of privacy, the search will be upheld. Significantly, the government's required showing is not particularly onerous, as neither a history of past drug or alcohol related incidents within the industry nor an incident in a particular case are prerequisites to a valid search.

III. The Washington Supreme Court's Interpretation of Article 1, Section 7

A. Under Gunwall, an Independent Interpretation of Article 1, Section 7 is Appropriate With Respect to the Issue of Drug Testing

Any inquiry regarding the protection of individual rights does not end with an analysis of the federal Constitution. It is a well-established principle that, while the United States Constitution provides the floor of protection of an individual's rights, states are free to expand these rights through an independent interpretation of their own state constitutions.(fn27) Washington has been among...