Wilkinson v. Times Mirror Corp.

contingent upon successful completion of a physical examination, including the drug and alcohol test; she took the eye exam but refused to take the drug test, and was not hired.

Plaintiffs filed a complaint against Times Mirror, Matthew Bender, and others, seeking declaratory and injunctive relief on their own behalf and for all others similarly situated, and damages for themselves.^[1] Among plaintiffs’ allegations were that Matthew Bender’s preemployment alcohol and drug testing policy (1) violates article I, section 1 of the California Constitution; and (2) constitutes an unfair business practice, in violation of Business and Professions Code section 17200 et seq.^[2]

In June 1988, the trial court granted a preliminary injunction restraining Matthew Bender and Times Mirror from conditioning the employment of the named plaintiffs, or of any other member of the named class seeking employment with Matthew Bender in California upon submission to mandatory urinalysis testing for alcohol and drugs. After Matthew Bender and Times Mirror (defendants) filed a timely notice of appeal, this court granted their petition for writ of supersedeas, staying the effect of the preliminary injunction pending further order of this court and final determination of the appeal.

When the trial court decides whether to grant or deny a preliminary injunction, it must consider the likelihood that the plaintiffs will prevail on the merits at trial, and must also weigh the interim harm to plaintiffs if the injunction does not issue against the harm to defendants if the injunction is granted. (King v. Meese (1987) 43 Cal.3d 1217 , 1227-1228 [ 240 Cal.Rptr. 829 [ 743 P.2d 889 ].) On appeal from an order granting or denying a preliminary injunction, the reviewing court does not ordinarily decide the merits of the complaint. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63 , 75-76 [ 196 Cal.Rptr. 715 , 672 P.2d 121 ].) Instead, that court decides

privacy may be invoked as a shield against some forms of nongovernmental intrusion.

In addition, California appellate courts and at least one federal court have consistently held, in varying factual contexts, that article I, section 1, protects against private conduct. The question was considered first in Porten v. University of San Francisco (1976) 64 Cal.App.3d 825 [ 134 Cal.Rptr. 839 ]. Plaintiff in Porten sought damages from the University of San Francisco, alleging that, without his consent and for no reason, that private university had disclosed to a state commission his transcript from another school. The appellate court held in part that plaintiff’s complaint did state a prima facie violation of the state constitutional right of privacy in that it alleged the improper use of information obtained for a specific purpose. Noting that the ballot argument referred to both government and business, the court declared, “The constitutional provision is self-executing; hence, it confers a judicial right of action on all Californians. [Citation.] Privacy is protected not merely against state action; it is considered an inalienable right which may not be violated by anyone. [Citations.]” (Id., at pp. 829-830, fn. omitted.)

Other appellate courts have followed Porten and agreed that the constitutional provision applies to private conduct. In Cutter v. Brownbridge (1986) 183 Cal.App.3d 836 [ 228 Cal.Rptr. 545 ], for example, the issue was a psychotherapist’s immunity from civil liability for voluntarily disclosing privileged information about his patient, which was used against the patient in a judicial proceeding. Citing Porten for the proposition that the constitutional right of privacy protects from infringement either by the state or by any individual, the Cutter court held that the patient’s statements to the psychotherapist were protected by that right.^[3] (Id., at pp. 841-843; see also Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463 , 1489-1493 [ 232 Cal.Rptr. 668 , 69 A.L.R.4th 1027 ] [constitutional right of privacy encompassed wife’s right to be free from unconsented intrusion of apartment by NBC, which filmed paramedics performing CPR on dying husband and showed the film on the evening news; NBC’s obligation not to make an unauthorized entry did not impermissibly burden its First Amendment rights to gather news]; Chico Feminist Women’s Health Center v. Scully (1989) 208 Cal.App.3d 230 , 241-242 [ 256 Cal.Rptr. 194 ] [although state privacy right protects against invasion by individuals, clients at abortion clinic in small town had no reasonable expectation of privacy on that community’s public sidewalks and streets during clinic’s business hours]; Chico

Fem. Women’s Hlth. Cr. v. Butte Glenn Med. S. (E.D.Cal. 1983) 557 F.Supp. 1190 , 1201-1203 [complaint alleged private medical society and physicians violated constitutional privacy rights of women seeking abortions; no state action required, as article I, section 1, was intended to protect against intrusion by acts of private parties].)

These cases are factually dissimilar, but the courts were unanimous in holding that the state constitutional privacy provision provides some protection against nongovernmental intrusion. Defendants cite no case in which a court has held to the contrary.^[4]

Many commentators on the state’s constitutional right of privacy are in accord that governmental action is not required to trigger its protection. (See, e.g., Decker, Employee Privacy Law and Practice (1987) §§ 3.10-3.11, pp. 130-132; Note, Your Urine or Your Job: Is Private Employee Drug Urinalysis Constitutional in California? (1986) 19 Loyola L.A. L.Rev. 1451, 1482-1483; Comment, Mandatory Drug Testing of College Athletes: Are Athletes Being Denied Their Constitutional Rights? (1988) 16 Pepperdine L.Rev. 45, 58, fn. 129.)

Common experience with the ever-increasing use of computers in contemporary society confirms that the amendment was needed and intended to safeguard individual privacy from intrusion by both private and governmental action. That common experience makes it only too evident that personal privacy is threatened by the information-gathering capabilities and activities not just of government, but of private business as well. If the right of privacy is to exist as more than a memory or a dream, the power of both public and private institutions to collect and preserve data about individual citizens must be subject to constitutional control. Any expectations of privacy would indeed be illusory if only the government’s collection and retention of data were restricted.

Finally, a conclusion that this state’s Constitution provides some protection for its citizens against private conduct breaks no new legal ground. As was pointed out in Chico Fem. Women’s Hlth. Cr. v. Butte Glenn Med. S.,

supra, 557 F.Supp. at page 1203, footnote 23, “It is by no means unprecedented for California law to protect fundamental rights against private interference.” (See, e.g., Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 [ 153 Cal.Rptr. 854 , 592 P.2d 341 ] [Cal. constitutional rights of free speech and petitioning, reasonably exercised, are protected in privately owned shopping centers].)

Because this case does not involve state action, plaintiffs’ Fourth Amendment rights to be free from unreasonable searches and seizures are not implicated. Nevertheless, our analysis would be incomplete without some discussion of recent United States Supreme Court cases concerning the Fourth Amendment and mandatory drug testing of railroad and customs Service employees, particularly given defendants’ assertion that a urine test is, at most, only minimally intrusive.

In Skinner v. Railway Labor Executives Ass’n (1989) 489 U.S. 602 [ 103 L.Ed.2d 639 , 109 S.Ct. 1402 ], the high court considered the constitutionality under the Fourth Amendment of Federal Railroad Administration regulations mandating railroads to take blood and urine samples for toxicological testing from all employees involved in certain train accidents, and authorizing the testing of other employees who violated specified safety rules.^[5]

The court had little difficulty in concluding that the collection and testing of urine intrudes upon “expectations of privacy that society has long recognized as reasonable” and must be deemed a search under the Fourth Amendment when conducted by the government. The court stated, “ ‘There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom.’ [Citation.]” (Skinner v. Railway Labor Executives Ass’n, supra, 489 U.S. at p. 617 [103 L.Ed.2d at p. 660, 109 S.Ct. at p. 1413].)

But the Fourth Amendment prohibits only unreasonable searches, and when the court balanced the intrusiveness of the testing against the government’s interest served by testing without individualized suspicion, it concluded that the testing was constitutionally permissible. The court explained that, although the privacy concerns raised by urine tests could not

be characterized as minimal in most contexts, the railroad regulations reduced the intrusiveness of the collection process. The sample would be collected in a medical environment, by personnel unrelated to the employer. Direct observation of the employee furnishing the sample was not required, although suggested. Railroad employees’ expectation of privacy was necessarily diminished because their industry was pervasively regulated to ensure safety. Under all these circumstances, the court concluded that the testing contemplated by the regulations posed only “limited threats” to the employees’ justifiable expectations of privacy. (Skinner, supra, 489 U.S. at pp. 628-629 [103 L.Ed.2d at pp. 667-668, 109 S.Ct. at pp. 1419-1420].)

In contrast, the government had a compelling interest in testing without individualized suspicion to ensure the safety of the public and the railroad employees themselves. The court emphasized that employees subject to testing perform duties “fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.” The court concluded that testing without warrant or individualized suspicion was constitutionally reasonable, given the “surpassing safety interests served by toxicological tests in the context, and the diminished expectation of privacy that attaches to information pertaining to the fitness of covered employees . . . .” (Skinner, supra, 489 U.S. at pp. 628-633 [103 L.Ed.2d at pp. 667-670, 109 S.Ct. at pp. 1419-1422].)

At issue in the second case, National Treasury Employees Union v. Von Raab (1989) 489 U.S. 656 [ 103 L.Ed.2d 685 , 109 S.Ct. 1384 ], was a program of the United States Customs Service requiring a drug screening urinalysis from employees seeking transfer to drug interdiction positions, or who either carried firearms or handled certain “classified” material. Again, the question was whether the government’s interest was sufficiently compelling to justify the intrusion on privacy resulting from testing without individualized suspicion. The court concluded, “In light of the extraordinary safety and national security hazards that would attend the promotion of drug users to positions that require the carrying of firearms or the interdiction of controlled substances, the . . . policy of deterring drug users from seeking such promotions cannot be deemed unreasonable.” As for testing of employees with possible access to classified material, although the court acknowledged the government’s compelling interest in protecting “truly sensitive information,” it suggested that the category of employees subject to testing for this reason was too broadly defined, and remanded for additional proceedings.^[6]

infringed. (See, e.g., Alarcon v. Murphy (1988) 201 Cal.App.3d 1 , 5 [ 248 Cal.Rptr. 26 ] [city’s disclosure that police suspected arrested individual of murder did not violate any objectively reasonable expectation of privacy]; People ex rel. Franchise Tax Bd. v. Superior Court (1985) 164 Cal.Appl.3d 526, 540-541 [ 210 Cal.Rptr. 695 ]; Armenta v. Superior Court (1976) 61 Cal.App.3d 584 , 588 [ 132 Cal.Rptr. 586 ]; see also Chico Feminist Women’s Health Center v. Scully, supra, 208 Cal.App.3d at pp. 241-242 [clients at small town abortion clinic had no reasonable expectation of privacy on public sidewalks and streets during clinic’s business hours]; Stockler v. Department of Motor Vehicles (1980) 105 Cal.App.3d 240 [ 164 Cal.Rptr. 203 ] [DMV requirement for display of photograph of applicant for driver’s license renewal does not violate any reasonable expectation of privacy].)

Recently, in Schmidt v. Superior Court, supra, 48 Cal.3d 370 , our Supreme Court concluded that a private mobilehome park rule limiting residence in the park to persons 25 years or older did not violate federal or constitutional rights of privacy.^[7] The court reasoned that although the constitutional right of “ ‘familial privacy’ ” undoubtedly encompassed a parent’s right to live with his or her child, the 25-years-or-older policy did not compel the separation of parent and child or preclude the family from living together in an entire city or neighborhood; instead, it only denied access to a limited number of housing units. The court then concluded that given the distinct characteristics of mobilehome parks (many older residents, small units, substantial potential lack of privacy, expense of making such a park safe for children), the age-based rule was not irrational or arbitrary. (Id., at pp. 389-390.)

Because the Schmidt court did not explicitly articulate the legal principles or standards underlying its conclusion, we must infer those standards from its analysis. Schmidt appears to hold that even if challenged conduct has some impact on the right of privacy, as long as that right is not substantially burdened or affected, justification by a compelling interest is not required. Instead, the operative question is whether the challenged conduct is reasonable. (See also Miller v. Murphy (1983) 143 Cal.App.3d 337 [ 191 Cal.Rptr. 740 ] [local ordinances requiring pawnbrokers to obtain customers’ fingerprints did not violate customers’ right of privacy; fingerprinting is only a slight intrusion on that right, and ordinances were reason

ably related to legitimate state interests in investigating crimes and apprehending criminals].)^[8]

Guided by the Supreme Court’s analysis in Schmidt, we assess the effect of Matthew Bender’s drug-testing policy on plaintiffs’ constitutionally protected right of privacy. Perhaps the most important factor in our analysis is that plaintiffs are applicants for employment, not employees, either public or private. Any individual who chooses to seek employment necessarily also chooses to disclose certain personal information to prospective employers, such as employment and educational history, and to allow the prospective employer to verify that information. As applicants for employment with Matthew Bender, when plaintiffs were asked to consent to drug and alcohol screening as a condition of an offer of employment, they were in effect asked to disclose voluntarily the personal information which might be revealed by that screening.

Did Matthew Bender’s request so substantially burden plaintiffs’ right of privacy that the request was constitutionally unreasonable and therefore impermissible? We conclude not. We acknowledge that after the United States Supreme Court’s decisions in Skinner v. Railway Labor Executives Ass’n, supra, 489 U.S. 602 [ 109 S.Ct. 1402 ] and National Treasury Employees Union v. Von Raab, supra, 489 U.S. 656 [ 109 S.Ct. 1384 ], it cannot seriously be argued that the collecting and testing of urine does not intrude at all upon reasonable expectations of privacy. (See also People v. Melton (1988) 44 Cal.3d 713 , 736-739, and fn. 7 [ 244 Cal.Rptr. 867 , 750 P.2d 741 ] [upholding trial court’s refusal to order witness to undergo blood or urine test for narcotics absent probable cause that witness was testifying under the influence of drugs, and stating that court-ordered urinalysis for drugs would invoke “privacy and dignitary interests protected by the due process and search and seizure clauses”].)

Nevertheless, several factors present here minimize the intrusiveness of Matthew Bender’s drug screening program. First, as applicants for employment in private business, plaintiffs necessarily had to anticipate being asked to take a preemployment physical examination. California law authorizes

to the test, are not foreclosed by Matthew Bender’s policy from seeking other employment. (Cf. Schmidt v. Superior Court, supra, 48 Cal.3d at pp. 389-390 [mobilehome park rule denied access only to limited number of units].)^[9]

Plaintiffs respond by urging that no private employer may ask a prospective employee to consent to an invasion of privacy simply because that applicant has no independent right to the job in the first instance, but cite no authority which so holds. Instead, the cases upon which plaintiffs rely hold that when the state implements a general public benefit program, the California Constitution limits the state’s ability to condition receipt of those benefits upon waiver of a constitutional right. (See, e.g., Robbins v. Superior Court (1985) 38 Cal.3d 199 , 213-214, and fn. 20 [ 211 Cal.Rptr. 398 [ 695 P.2d 695 ] [general assistance benefits]; Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252 , 262-283 [ 172 Cal.Rptr. 866 , 625 P.2d 779 , 20 A.L.R.4th 1118 ] [health care benefits for the indigent]; Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499 , 504-509 [ 55 Cal.Rptr. 401 , 421 P.2d 409 ] [public employment].) The premise of such cases is that the power of government, federal or state, to withhold certain benefits from its citizens does not encompass the power to bestow such benefits based on an arbitrary deprivation of constitutional rights. (Bagley, supra, at p. 504.)^[10] Plaintiffs cite no case holding or even suggesting that this doctrine has any applicability to a private person or entity. (Compare Utility Workers of America v. Southern Cal. Edison (9th Cir. 1988) 852 F.2d 1083 [court acknowledges that question of drug testing implicates important personal rights, but declines to hold that right to be free from drug testing cannot be negotiated away in collective bargaining agreement].)

When selecting employees, private employers must comply with applicable federal and state statutes prohibiting discrimination based on race, col- or, religion, sex, national origin, age, physical handicap, or medical condition. (See 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981 ; 29 U.S.C. § 621 et seq.; Gov. Code, § 12900 et seq.; see generally, Advising California Employ

testing of employees and prospective employees; at least one, Montana, limits preemployment testing to certain types of employment. (Mont. Code Ann. (1987) § 39-2-304 [preemployment testing permitted for hazardous work environments or in “jobs the primary responsibility of which is security, public safety, or fiduciary responsibility”]; see also Conn. Gen. Stat. §§ 31-5 It to 31-51bb [preemployment urinalysis drug test permitted under certain conditions, including written notification to prospective employee of test requirement, test conducted according to specified procedures, and results confidential]; Iowa Code Ann. (West Supp. 1987) § 730.5; 13A Minn. Stat. Ann. § 181.950-181.957 ; Utah Code Ann. (1953) § 34-38-1 et seq.; Vt. Stat. Ann. (1987) tit. 21, §§ 511-520.) The difficult and delicate task of balancing the privacy rights of job applicants and employees against the legitimate business and safety concerns of private employers involves policy determinations which are peculiarly within the purview of the Legislature, and we urge that body to recognize and act on its obligation to provide guidance in this much debated area.^[11]

V

Alleging that Matthew Bender’s preemployment drug testing policy was an unlawful business practice, plaintiffs also sought injunctive relief under the Unfair Practices Act. (Bus. & Prof. Code, § 17000 et seq.)^[12] Under that act, any person may bring an action to enjoin unfair competition, either on his or her own behalf, or on behalf of the general public. (§ 17204.) According to section 17200, unfair competition includes “unlawful, unfair or fraudulent business practice.” Unfair competition encompasses anything that can properly be called a business practice which at the same time is forbidden by law. (People v. McKale (1979) 25 Cal.3d 626 , 634 [ 159 Cal.Rptr. 811 , 602 P.2d 731 ].) An employer’s business practices concerning its employees are within the scope of section 17200. (See People v. Los Angeles Palm, Inc. (1981) 121 Cal.App.3d 25 , 32-35 [ 175 Cal.Rptr. 257 ] [employer’s violation of Labor Code sections governing minimum wage enjoined as an unlawful business practice under section 17200].)

Plaintiffs argue that Matthew Bender’s drug testing policy is an unlawful business practice because it violates article I, section 1 of the Constitution, but our conclusion that the practice is constitutional is fatal to that argument. Plaintiffs also argue that the practice is unlawful in that it

violates provisions of the California Code of Regulations, which prohibit preemployment medical examinations and inquiry into the physical condition or medical history of a job applicant except to determine fitness for a particular job or where necessary for health and safety reasons. Plaintiffs reason that there is no direct relationship between Matthew Bender’s drug testing and fitness for any job with that company.

We disagree. An employer may inquire concerning an applicant’s present physical condition or medical history if the inquiry is “directly related and pertinent to the position in question or is directly related to a determination of whether the applicant would endanger his or her health and safety or the health and safety of others.” (Cal. Code Regs., tit. 2, § 7294.0, subd. (b)(3).) An employer may condition an offer of employment on the results of a medical examination conducted to determine “fitness for the job in question.”^[13] An employer may require an employee to meet physical standards reasonably related to the duties required by the job and the health and safety of the employee or others. (See Sienkiewicz v. County of Santa Cruz (1987) 195 Cal.App.3d 134 , 142 [ 240 Cal.Rptr. 451 ].) As we have discussed, an employer has a legitimate interest in not hiring individuals whose drug abuse may render them unable to perform satisfactorily on the job, and plaintiffs do not contend otherwise. We conclude that an employer may reasonably determine that the results of a drug test are directly related to job fitness.^[14]

Defendants contend that the trial court improperly struck evidence presented in opposition to the motion for preliminary injunction. That evidence included portions of declarations of defendants’ expert witness concerning the scope of the drug abuse problem in the United States and the effect of employee drug abuse on employers, as well as portions of other declarations concerning alcohol and drug abuse problems within Times Mirror. In light of our conclusion that the preliminary injunction was improperly granted because plaintiffs have no likelihood of prevailing on the merits of their