A two-day civil trial this week has set the stage for a Los Angeles Superior Court judge to decide whether the city of Glendale can continue its five-year policy of mandatory drug tests for all job applicants and all candidates for promotion.
Judge Ernest G. Williams rendered no opinion on the American Civil Liberties Union's contention that Glendale's sweeping policy violates the right to privacy guaranteed by the state Constitution, but he promised to rule by Sept. 18.
Both attorneys in the case--the first lawsuit in California to specifically challenge across-the-board drug testing for government job applicants--said they expect to appeal Williams' ruling if they lose.
A state appellate court ruling upholding or overturning the program would provide guidelines for drug-screening programs in municipalities, counties and agencies statewide, said ACLU attorney Marvin E. Krakow and Glendale's Senior Assistant City Atty. Ron R. Braden. Such a ruling would then be subject to review by the state Supreme Court.
Glendale's policy, adopted in August, 1986, requires all job applicants, regardless of the position they seek, and all candidates for promotion to submit to urinalysis to screen for 10 controlled substances.
Glendale resident and attorney Lorraine L. Loder, with the backing of the ACLU, challenged the legality of the program a month after its adoption. Though Loder never sought city employment, she was allowed to press the case as a taxpayer with a vested interest in city policy.
The testing was halted in September, 1987, after a judge issued a temporary injunction in the case, ruling that the program appeared to violate the right to privacy. The injunction was overturned, however, by a state appellate court and testing resumed in January, 1990.
The trial Monday and Tuesday featured little witness testimony. Krakow called only two witnesses: an engineer and a doctor who demonstrated several computerized mechanisms that test workers' response time, balance and hand-eye coordination. The witnesses testified that employees could take the tests every day to be sure that they are capable of performing their jobs before beginning work.
Braden called the city's personnel director who explained the origins of the drug-screening program, a physician who discussed the effects of various drugs and a computer scientist who testified that the tests demonstrated by Krakow's witnesses could be tampered with.
But Judge Williams said that "the key to this whole thing is going to be what the Supreme Court has already ruled on the issue."
Braden contends that previous decisions by the state and federal supreme courts have clearly established an employer's right to test job applicants for the use of illegal drugs.
He cited the March, 1990, state Supreme Court ruling in the case of Wilkinson vs. Times Mirror Co., which he said allows all employers to conduct pre-employment drug screening.
But Krakow maintained that the Wilkinson ruling only applies to private companies, not to government agencies.
Furthermore, he said, U. S. Supreme Court decisions on the issue have specified that government agencies can only screen job applicants for drugs if there is a "compelling need," that is, if the employee will be entrusted with public safety, will be handling sensitive information or will be in a law enforcement job that could be compromised by drug use.
Krakow argued Tuesday that Glendale's broad testing program fails to meet the U. S. Supreme Court standard and violates both the right to privacy guaranteed by the state Constitution and California's Confidentiality of Medical Information Act.
"This testing program is wrong. It is wrong on a philosophical level, it is wrong at a human level, and it is wrong at a constitutional level," he argued. "Throw it out, judge, please. Throw it out."
Braden argued that the city has a right to screen out drug users from city jobs because chronic drug users do not perform as efficiently, are sick more often and generally draw more heavily on city medical and mental health benefits than non-drug-using employees.
He said he believes that any right to privacy a job applicant may have is overridden by the public interest in healthy, productive employees.
"If they want to use illegal drugs, let them stay home and preserve their right to privacy," Braden wrote in a brief to the court. "They should not have the right to obtain public employment and ask the public to support their illegal activities."
Braden also said that any city employee, including such employees as librarians and clerks, could be responsible for public safety or security in an emergency or a natural disaster.
But Krakow countered that a one-time drug test cannot predict whether employees will use drugs after they are hired, since even drug users can pass the test by temporarily abstaining from drugs beforehand.
He said the performance tests demonstrated in the trial, which are already used in many private companies, are "more carefully tailored to legitimate government interest than drug testing" because they identify people with any performance impairment, whether caused by exhaustion, stress or drugs.
"You wouldn't want someone who was too tired to drive a bus any more than you would want someone who was too drunk to drive a bus," he said. "The important thing to test for is impairment," which he said a drug test cannot do.
Braden said, however, that it would be too expensive and too inefficient for the city to install such computerized tests at each of the many work sites where the city's more than 1,600 employees report each day.