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Posted on: Sep 1, 2020

“While we recognize that workplace drug-testing policies implicate employees’ privacy interests, we find as a matter of law that the facts alleged in appellees’ complaint cannot sustain their common-law invasion-of-privacy claim.”

Justice Kennedy, majority opinion

“At the time appellees were required to provide their urine samples, they were presented with two choices: either provide a urine sample under the direct-observation method or be terminated. It would strain the meaning of the word “consent” to suggest that appellees consented under the circumstances in this case.”

Justice Stewart, dissenting opinion

On August 26, 2020 the Supreme Court of Ohio handed down a merit decision in Lunsford v. Sterilite of Ohio, L.L.C., Slip Opinion No. 2020-Ohio-4193. In a 4-3 opinion written by Justice Kennedy, joined by Justices DeWine, French and Fischer, the Court held at-will employees have no cause of action for invasion of privacy when consenting to an employer-required direct observation method of submitting a urine sample for drug testing. Justice Stewart dissented, joined by Chief Justice O’Connor and Justice Donnelly. The case was argued January 28, 2020.

Case Background

This invasion of privacy action (along with other claims not relevant here) was brought by Appellees Adam Keim and Laura Williamson who are former at-will employees of Appellant Sterilite of Ohio, L.L.C., and by Appellees Donna Lunsford and Peter Griffins, who are current employees of Sterlite (Collectively, “Appellees” or “Employees”).  The suit was filed both against Sterilite, which is a private company, and against Appellant U.S. Healthworks Medical Group of Ohio, Inc., (Collectively, “Appellants”) which administered the drug test at issue in this case.

Sterilite’s Workplace Substance-Abuse Policy

Sterilite has a substance-abuse policy that applies to all its employees. Compliance is a condition of employment. Under the policy, Sterilite has the discretion to change the policy at any time.

Under its substance-abuse policy, Sterilite can require an employee to submit to drug testing under three circumstances: while investigating a workplace accident or incident, when there is reasonable suspicion that an employee may be impaired by drugs or alcohol, and at random, periodically. The policy also states that urinalysis will be the method used for the drug test but is silent on how the urine sample will be collected. The testing is done in a restroom used exclusively for this purpose.

Under Sterilite’s policy an employee is informed by a supervisor when and where he or she is to report for testing. If an employee does not produce a valid urine sample within two and a half hours, that is considered a refusal to take the test, which means that employee is subject to immediate termination. If the test is completed and is positive, that employee is subject to discipline, including being fired.

Policy Change to Direct Observation Method

In October of 2016, Sterilite first began using the direct observation method of collecting urine samples, meaning a same-sex monitor from U.S. Healthworks was required to accompany the employee to the restroom and actually visually observe the employee produce the urine sample. Under this new policy, Lunsford, Williamson and Griffiths were selected for random drug tests and Keim was selected based on the reasonable-suspicion-of-impairment provision.

The Consent Form

Before starting the testing, each employee was required to sign a consent form provided by U.S. Healthworks. At the time the appellees signed the consent form, none of them knew the sample would be collected under the direct-observation method, as it never had been before. They first learned this when they reported to the restroom designated for the test.

Lunsford and Griffiths produced a valid urine sample within the time allotted. Keim and Williamson could not and were fired.

This Lawsuit

The Appellees filed a multi-count complaint against Sterilite and U.S. Healthworks. At issue in this case is the claim for invasion of privacy, specifically for intrusion on seclusion. The trial court granted the appellants’ Civ. R. 12(B)(6) motion to dismiss, finding that Ohio does not recognize an invasion of privacy claim by an at-will employee based solely on an employer’s use of the direct observation during a drug test, especially when the at-will employees agreed to be tested as a condition of employment. In doing so, the trial court rejected as inapplicable the appellees’ reliance on various sets of federal guidelines limiting such tests, since there is no state actor involved in the case.

In a unanimous opinion the Fifth District Court of Appeals reversed, finding that appellees had stated a valid claim for invasion of privacy, and had a “reasonable expectation of privacy with regard to the exposure of their genitals.”

Read the oral argument preview here and an analysis of the argument here.

Key Precedent

Housh v. Peth, 165 Ohio St. 35 (1956) (“The invasion of the right of privacy may be defined also as the wrongful intrusion into one’s private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.”) 

Earp v. City of Detroit, 167 N.W.2d 841 (1969) (The extent of an employee’s privacy rights must be construed within the context of their status as at-will employees.) 

Sustin v. Fee, 69 Ohio St. 2d 143 (1982) (“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”)  

Mers v. Dispatch Printing Co., 19 Ohio St.3d 100 (1985) (Either party to an at-will employment contract—employer or employee—can terminate the employment relationship for “any reason which is not contrary to law.”) 

Wilkinson v. Times Mirror Corp., 215 Cal.App.3d 1034 (1989) (Upholding a privacy challenge in California against a private employer who allegedly violated the privacy provision of the California Constitution and the California Business and Professions Code.)  

Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989) (“[P]rocedures for collecting the necessary samples, which require employees to perform an excretory function traditionally shielded by great privacy, raise concerns.” And in cases in which the collection of the sample to be tested “involve visual or aural monitoring of the act of urination,” privacy interests are implicated.)  

Jennings v. Minco Technology Labs, Inc., 765 S.W.2d 497 (Tex.Civ.App. 1989) (employee could not validly complain that drug testing was “highly offensive” when he voluntarily supplied urine sample.)  

Baugh v. CBS, Inc., 828 F.Supp. 745 (N.D.Cal. 1993) (“One who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it.”) 

Stein v. Davidson Hotel Co., 945 S.W.2d 714 (Tenn. 1997) (affirming trial court’s grant of employer’s motion to dismiss for failure to state a claim for invasion of privacy because plaintiff’s complaint contained “no allegations that the [plaintiff] objected to the test when asked to sign the [consent and release] form or when selected for the test.”) 

Propositions of Law Accepted for Review

Sterilite’s Proposition of Law Accepted for Review

Employees of a private employer in the State of Ohio do not have a reasonable expectation of privacy in whether they are reporting to work under the influence of drugs or whether they are cheating on a drug test. Absent allegations that the manner of testing used by a private employer to obtain this information is not job-related and consistent with business necessity, an at-will employee cannot maintain an action against her employer for invasion of privacy.

U.S. Healthworks’ First Proposition of Law Accepted for Review

Requiring employees to provide a monitored urine sample to independent laboratory personnel as part of an employer’s random drug testing policy does not constitute an invasion of privacy of the employee’s common law right to privacy as a matter of law.

U.S. Healthworks’ Second Proposition of Law Accepted for Review

Ohio law does not recognize a cause of action for invasion of privacy against independent third-party laboratories or their trained staff who are hired to collect and test urine samples as part of a drug testing policy between an employer and employee by the direct observation method of collection when the employee signs a consent authorizing any testing necessary to determine the presence or level of drugs.

Does the Court Accept Appellants’ Propositions of Law?

According to Justice Kennedy, “Because we resolve this matter by addressing U.S. Healthworks’ second proposition of law, we decline to address Sterilite’s proposition of law and U.S. Healthworks’ first proposition of law.” According to Professor Emerita Bettman, this is puzzling, since U.S. Healthwork’s second proposition of law addresses its own, rather than Sterilite’s, involvement in the case. The majority opinion actually seems to me to accept all three.

Merit Decision

Position of the Parties

Sterilite’s Argument

The fact that all the appellees either are or were at-will employees is fatal to their privacy claims since compliance with the company’s substance abuse policy was a condition of their employment. Further, their consent to drug testing and failure to object to the direct observation method negates their claims.

U.S. Healthworks’ Argument

U.S. Healthworks agrees with Sterilite’s argument that appellees’ consent and voluntary participation in the drug program negates their claim. It notes that the appellees signed a consent form and were advised that the direct-observation method would be used to collect their samples, and they each went ahead anyway. Two of the employees produced a valid sample; the other two at least tried to.

Employees’ Argument

The appellees concede that they are at-will employees. They also concede that Sterilite is entitled to have a substance-abuse policy. But they draw the line at the use of the direct-observation method of collection, arguing that employees do not give up their privacy rights so that an employer can conduct drug testing however the employer wants to. They argue that the direct-observation method of collection crosses the line of acceptability in this regard and violates their privacy rights.

The Employees also argue that they did not consent to be tested by direct-observation. They agree they gave their consent to U.S. Healthworks to do the tests and give the results to Sterilite. But they argue they never consented to the direct-observation method. They first learned about this method after they had signed the consent form when reporting for their drug tests, so any consent to this method of collection was involuntary because if they refused they would be fired.

Executive Summary

The majority agrees with the arguments of Sterilite and U.S. Healthworks.  The dissent agrees with the arguments of the Employees.

Analysis of Majority Opinion

It is useful to remember that the case involved the granting of a 12(B)(6) motion to dismiss to the Appellants at the trial court level.

The majority sees this case as a clash between two common-law principles—the employment at will doctrine, and the tort of invasion of privacy. Obviously, each side thinks its position should trump the other’s. The majority gives us an analysis of both doctrines.

Employment-At-Will

Justice Kennedy begins with a short tutorial on the employment-at-will doctrine. It means either the employer or the employee can terminate an at-will employment relationship for any reason that is not contrary to law. Just to be clear, that means the boss can fire an employee for any reason not contrary to law, and an employee has an equal right to quit. Whether those two things are comparable has been the subject of much debate.

But, as Kennedy hastens to point out, there are limits to the employment-at-will doctrine. Legislatures have passed laws prohibiting firings that are retaliatory, such as firing for filing a worker’s compensation claim or participating in union activities, and prohibiting discriminatory firings because of age, sex, race, or disability. And the Court has recognized some others not relevant here.

The majority firmly believes the extent of the employees’ privacy rights must be construed within the context of their status of at-will employees. Regardless, the controversy here is not over conditioning appellees’ employment on their compliance with the policy, but rather on the manner in which that policy was carried out—by use of the direct-observation method during the collection of the urine sample. 

Invasion of Privacy: Majority Take

The majority summarizes the crux of the employees’ argument as being absent just cause, such as a past positive drug test or reasonable suspicion of urine-sample tampering or adulteration, or an employee’s express consent, an at-will employer is not allowed to use the direct-observation method of drug testing in the workplace because it is highly offensive to a reasonable person. The employees further argue that just because courts have allowed employers to perform work-place substance-abuse testing does not give employers the unfettered discretion in choosing the method of collection of urine samples.

The majority rejects as inapposite the employees’ reliance on out-of-state decisions involving public employers and particular state constitutional provisions, such as California’s which contains an express privacy provision. The majority finds that the employees’ arguments must be limited to Ohio’s common law of privacy because no provision of the Ohio Constitution or of any specific statute has been implicated here.

The majority goes on to review the Court’s development of the common-law right of privacy, pegging this case as what is commonly known as the privacy tort of intrusion on seclusion. This definition of the tort from Sustin v. Fee is instructive, and generally turns on the facts of a particular case:

“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”  

While the majority acknowledges that workplace drug-testing policies implicate employees’ privacy rights, the majority holds that the facts alleged in the employees’ complaint do not sustain their common-law invasion of privacy claims because they consented to the use of the direct-observation method.

Consent By Actions

Consent is an absolute defense to an invasion of privacy claim, so an employee who consents to drug testing cannot claim the testing was highly offensive and an invasion of privacy. The majority finds that Sterilite’s substance-abuse policy was premised on the employees’ consent, and rejects the employees’ argument that the consent form only covered the testing of urine, not the direct-observation method of that testing. The majority found that when the appellees each reported for the collection of their urine samples, they were informed at that time by a same-sex monitor that the direct-observation method would be used, and thus had a second chance to refuse the test. Since they didn’t, the majority finds that by their actions, they consented. “Appellees’ consent to take the test by the direct- observation method was therefore not borne by their actions in executing the consent form, but by their actions in taking the test under the direct-observation method,” Kennedy wrote.

No Coerced Consent

The majority also rejects the employees’ argument that their production of urine samples, or in the case of Keim and Williamson, their good-faith attempts to do so, were not voluntary, since refusal meant immediate termination. But that, notes Kennedy, is just the nature of at-will employment—either party may end the employment relationship for any reason that is not contrary to law, which this wasn’t because Sterilite had the right to condition employment on consent to drug testing under the direct-observation method, just as the employees had the right to refuse.

“Because Sterilite had the legal right to terminate appellees’ employment at any time, appellees’ argument that their consent was involuntary because of their fear of termination necessarily fails,” Kennedy wrote.

Case Holding

“When an at-will employee consents, without objection, to the collection of the employee’s urine sample under the direct-observation method, the at-will employee has no cause of action for common-law invasion of privacy.”

Justice Stewart’s Dissent

Employment-at-Will Status a Red Herring

Justice Stewart’s first point of departure with the majority is that she thinks the status of appellees as at-will employees has nothing to do with their invasion of privacy claims because at an-will employment relationship “does not allow an employer to commit intentional torts against its employees.” It’s a good point to keep in mind that what was alleged here is an intentional tort.

To Stewart, the employees’ complaint stated sufficient facts to show that any consent by the employees to the direct-observation method at issue in this case was clearly coerced by Sterilite, and she would allow the case to proceed past the 12(B)(6) stage.

Invasion of Privacy: Dissent Take

Stewart makes it clear that that the employees did not object to being drug-tested by Sterilite.  They objected to the procedure, namely the direct-observation method, which they allege is highly offensive to a reasonable person; a violation of their personal dignity.

Stewart posits that in private-sector employment, random urine drug testing infringes on an employee’s right to privacy in at least two ways: through the collection itself and the intrusion into areas of an employee’s private life that is otherwise none of the boss’s business. But in the workplace, the employee’s legitimate expectation of privacy must be balanced against the employer’s need to conduct drug testing in the way it chooses.

Stewart has quite a bit to say about just how privately people feel about passing urine, quoting a federal 5th circuit case which says “most people describe it by euphemisms if they talk about it at all,” and a 6th circuit case which says “the act of urination is one of the ‘few***times where individuals insist***strongly and universally that they be let alone to act in private.’”

“The direct observation by a stranger of a person’s genitalia while the person urinates goes against societal norms that dictate a high level of privacy in that function,” wrote Stewart. “Sterilite has offered no reasonable justification for using the direct-observation method for urine collection over less intrusive means, including the procedure it had used previously, which did not involve direct observation of the employee’s genitalia.” She notes that the employees had provided urine samples for drug testing in the past without this direct-observation method, and had alleged that they had not given Sterilite any reason to suspect any attempts to compromise the tests.

Stewart also concludes that despite Sterilite’s argument that it had to use more stringent monitoring procedures to defeat any employee attempts to falsify the test, that did not justify this highly intrusive method of testing. She cites federal regulations from the U.S. Department of Transportation limiting the use of the direct-observation method only to situations where there was some reason to believe that an employee would or had tampered with the urine sample. The majority dismissed these federal regulations as inapplicable, since they apply only to public-sector employees.  Stewart nevertheless finds them instructive in private employment.

The bottom line here is that the dissent believes that Sterilite’s decision to use the direct-observation method creates a factual question on invasion of privacy not amenable to a dismissal under Civ.R.12(B)(6).

At-Will Employment: Dissent Take

To Stewart, just because a person is an at-will employee doesn’t mean he or she no longer has any expectation of privacy. But Stewart also emphasizes that an employee’s claim of a violation of the right to privacy has nothing to do with whether the employee was hired as an at-will employee. All the appellees in this case understood their status as at-will employees, but that could not have led them to understand they would “have to provide a urine sample while a stranger directly observed their genitalia.” And as expansive as the at-will doctrine is, an at-will employee cannot be terminated for a reason that is contrary to public policy, which includes the common law right to privacy. So, to the dissent, the employment-at-will doctrine in no way supersedes an employee’s right to seek redress for a violation of his or her privacy rights.

Consent Under Compulsion Is Not Consent

 While it is true that consent is an absolute defense to an intentional tort, consent given under duress is not consent. “Under the facts alleged by appellees in their complaint, what happened to them was not much different from being an unwilling participant in a shotgun wedding,” Stewart caustically notes. She chides the appellants and her colleagues in the majority as being disingenuous when stating that the employees “consented” to the use of the direct-observation method of testing. The consent forms the employees were required to sign said nothing about this direct-observation method. And Sterilite didn’t inform the employees they would be subject to direct-observation until after they had reported to provide their samples, and after they had signed the consent forms.

So, there was clearly no direct consent here. Stewart would find no implied consent either because she believes that the employees had no time to decide carefully whether to submit to the direct-observation method of drug testing. Refusing meant immediate termination. So, under these circumstances—agree to this direct-observation method or be fired—there was no consent. Consent is not valid if given under compulsion, and Stewart cites a number of cases so holding. And once again, she finds the issue not appropriate for resolution under a motion to dismiss.

And the Dissent Grand Finale

Stewart finds the cases cited by the majority to support their consent theory of the case inapposite because the employees in those cases “had not been ambushed at the restroom door and given the ultimatum to provide their urine samples under direct observation of their genitalia or else lose their jobs.”

Stewart concludes thusly:

“… the employees here are not challenging the drug-testing policy itself—they are challenging the highly offensive manner in which it took place without prior warning that the direct-observation would be used. This distinction is important when the scope of an employee’s consent has been distorted, as the majority has done here, to encompass implied consent without the employee’s having a reasonable choice or there being limitations on the testing procedure. At what point would the majority hold that an employer has exceeded the scope of an employee’s implied consent in the context of an employee’s providing a urine sample? What indignities must an at-will employee suffer to avoid losing his or her income and benefits before the employee has a cause of action for invasion of privacy? Make no mistake, the majority’s decision today will disproportionately affect workers who have no meaningful choice and no recourse for their employers’ intentional torts.”

Chief Justice O’Connor and Justice Donnelly joined this dissent.

Case Disposition

The judgment of the Fifth District is reversed, and the judgment of the trial court is reinstated. So Sterilite and U.S. Healthworks win.

Trial Court Judge (affirmed)

Stark County Common Pleas Court Judge Chryssa N. Hartnett

Fifth District Panel (reversed)

Opinion by Judge Craig Baldwin, and joined by Judges W. Scott Gwin and William B. Hoffman

Concluding Observations from Professor Emertia Marianna Bettman

It has taken me awhile, both personally and as a former torts professor, to calm down before I could write this post. The humanity divide on the Court on this one seems so sharply delineated to me.

The Restatement test for most of the privacy torts is whether what happened would be highly offensive to a reasonable person. And this is the official Ohio Jury Instruction on the privacy tort at issue here:

“In order to establish a claim for invasion of privacy by wrongfully intruding into the plaintiff’s private activities, the plaintiff must prove by the greater weight of the evidence that (a) the defendant intentionally intruded, physically or otherwise, into the (private activities) (solitude) (seclusion) of the plaintiff; and (B) the intrusion by the defendant would be highly offensive to a reasonable person.

Not only do I agree with the dissent that this case should never have gone off on a Civ.R.(12)(B)(6) motion to dismiss, but given this jury instruction, I think the employees have a strong chance of prevailing. They at least should have been given the chance to try.

Justice Stewart used the word “disingenuous” in describing the majority’s conclusion that the employees consented to the direct-observation method of testing.  I might have chosen an unkinder word.  As a torts teacher, when I taught the intentional torts and the defense of consent, one of the classic examples of duress vitiating consent was a person being held up at gunpoint and told, your money or your life. While this case isn’t that bad, to me, in its own way, it is close.

I also want to compliment Justice Stewart—I think this is her most eloquent decision to date that the blog has profiled. That is why I have included more than the usual amount of quotations.  

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