Employers, Drug Tests, and Bathroom Privacy: Analyzing the Supreme Court of Ohio’s Decision in Lunsford v. Sterilite of Ohio.

Photo by m01229 on Flickr

Brandon Bryer, Associate Member, University of Cincinnati Law Review

I. Introduction

An individual’s “bathroom time” is customarily regarded as a purely private matter. The Supreme Court of the United States has described “doing your business” as a function “traditionally performed without public observation”[1] and one “traditionally shielded by great privacy.”[2] However, despite its explicitly private nature, an individual’s status as an at-will employee may permit an employer’s interests to co-occupy the bathroom stall when undergoing a drug test. Recently, the Supreme Court of Ohio narrowly upheld a drug testing policy under which the employer utilized a direct-observation method when collecting the urine samples of its employees.[3] Through the lens of Lunsford v. Sterilite of Ohio, this article assesses how the legitimate interests of employers clash with an employee’s right to privacy and argues that the employment-at-will doctrine operates as a strong bar against an employee’s allegation of coerced or involuntary consent.

II. The Lunsford Decision

In 2018, two former and two current Sterilite of Ohio (“Sterilite”) employees brought suit challenging the private company’s workplace substance-abuse policy.[4] Under Sterilite’s policy, employees can be selected for a drug test at random, if a workplace accident occurs, or if there is reasonable suspicion an employee is impaired by drugs or alcohol.[5] If the employee does not produce a valid urine sample within two and half hours, the employee will be considered to have refused the test and is subject to immediate termination.[6]

Once selected for a drug test, all four employees signed a Consent and Release form authorizing “any testing necessary” to determine the presence and level of alcohol or drugs.[7] However, the consent form and Sterilite policy were silent as to the method of collection used.[8] After signing the consent form, a same-sex monitor escorted each employee to a designated drug testing restroom.[9] The first instance in which the employees realized the direct-examination method would be used was not until the same-sex monitor entered the restroom with them and shut the door.[10]

All four employees proceeded with the drug test under direct supervision without objection.[11] The two current employees produced a valid urine sample, however, despite “good faith efforts” the two former employees were unable to produce a sample within the allotted two and a half hours.[12] Pursuant to Sterilite policy, both employees were terminated for failure to produce a sample.[13] The employees alleged Sterilite committed the common-law invasion of privacy tort because the direct observation of one’s genitalia during urination is “highly offensive to a person of ordinary sensibilities.”[14] The employees further argued that their “consent” to be tested under the direct-observation method was involuntary because the only avaliable alternative was to be fired from their job.[15]

Writing for a slim 4-3 majority of the Supreme Court, Justice Kennedy held that when an at-will employee consents, without objection, to the collection of a urine sample under direct observation, the at-will employee has no cause of action for common-law invasion of privacy.[16] According to the majority, the employees gave both explicit and implied consent and had two opportunities to object and failed to do so. As to consent, because both employers and employees have the right to terminate an employment relationship at any time for any reason not contrary to law under the employment-at-will doctrine, the employee’s argument that their consent was involuntary due to fear of termination necessarily fails.[17]

Justice Stewart, writing for the dissent, objected strenuously to the relevance of the employment-at-will doctrine.[18] The dissent noted that while the employment-at-will doctrine does permit an employer or employee to terminate the employment relationship for any cause or no cause, the doctrine does not permit employers to commit intentional torts, such as invasion of privacy, against its employees or terminate an employee for reasons contrary to public policy.[19] According to the dissent, status as an at-will employee does not diminish one’s expectation of privacy nor does it supersede the employee’s right to obtain redress for the violation of public policy and privacy rights.[20] Further, the dissent argued that forcing an employee to choose between having your privacy invaded or loss of your job is no choice at all and it would distort the meaning of the word consent to say the Sterilite employees did so under these facts.[21]

III. Discussion

Most sensible people would agree that a co-worker or a stranger directly viewing your genitalia while you produce a urine sample offends personal dignity and invades one’s privacy. However, the same sensible person would also agree that a business has valid interests in ensuring the health and safety of its employees through drug and alcohol testing. But when these common sensibilities clash, which should prevail? At the heart of Lunsford and all similar cases that have and will arise in the future lies the controversial question of whether consent is invalidated when an employee must choose between having his or her privacy invaded or being fired. Answering that question is where the Lunsford court fractured.

The Lunsford majority relied solely on the employment-at-will doctrine to answer this fundamental consent question.[22] If an employee does not want to produce urine for a drug test under the direct-examination method, there are numerous alternative routes they may pursue. Importantly, there is more than just a false choice between show your genitalia to a stranger or be fired. The argument runs that an at-will employee could ask questions about the drug testing process before signing the consent form. If offended by the method, an at-will employee should object to direct examination, refuse to produce a urine sample, and request that a different process be used. If the employer refuses to compromise and still demands that direct examination be used, the at-will employee should quit. The employment-at-will doctrine puts faith in the employer and the employee to resolve employment relationship issues and if severance of employment is the ultimate result, so be it.[23]

Others, including the Lunsford dissent, would argue this approach is idealistic and that threatening an employee with termination if they do not ultimately submit to the direct examination of their genitalia is “tantamount to no choice at all.” [24] This predicament invokes a classic tort law example of determining when consent is invalidated due to duress. For example, if the Sterilite employees were held at knifepoint and forced to take a drug test under the direct-observation method, the employees cannot reasonably be said to have “consented.” Yet, the Lunsford majority clearly believes an at-will employee losing their job does not rise to the level of being held at knifepoint because once again the employment-at-will doctrine presents an at-will employee numerous options of recourse up to the ultimate act of quitting. Whether that reasoning is sound within the power complex of an employer-employee relationship has been debated and is ultimately why the Supreme Court of Ohio disagreed in this case.  

However, does the employment-at-will doctrine act even stronger than this? The answer seems to be yes. By interjecting the employment-at-will doctrine into the consent analysis, it is difficult to envision how the Lunsford majority could arrive at a different conclusion even if the employees did object. To illustrate this point, imagine if upon entering the bathroom and realizing the direct-observation method would be used, the Sterilite employees refused and explicitly revoked their consent. If Sterilite believed so strongly that the direct-observation method is necessary to preserve the integrity of its drug testing procedure, it could still refuse to accommodate a different method. No matter how much debate occurs between employer and employee, the Lunsford majority and the employment-at-will doctrine’s answer to this dilemma is ultimately “at-will employee, you should quit.”

While it is merely speculative whether Sterilite would have allowed for an unobserved urine production method had the employees objected, a case presenting such a fact pattern is an issue for another day. However, the Lunsford majority’s explicit use of the employment-at-will doctrine to refute the employee’s involuntary consent claim in effect constructs an extremely strong barrier between an employee who believes they were presented an unfair choice and any recourse in the courts. In fact, not even language from the United States Supreme Court discussing the intimately private nature and shield of great privacy afforded to an individual’s “bathroom time” could overcome the employment-at-will doctrine.[25] As an at-will employee, it is the employment relationship and your employer who will protect your privacy or not.

IV. Conclusion

In light of the Lunsford decision, Ohio’s private employers have the final say – if a company wants to conduct drug testing by means of the direct-observation method, they have the right to do so and the authority to condition employment upon it. However, it would be imprudent to read Lunsford as an outright denial of the privacy rights of employees. Rather, carefully read, the decision implicitly calls for employee privacy rights to be asserted and defended through the employer-employee relationship, not in the courts. Due to the importance that the employment-at-will doctrine now plays within the context of employee privacy rights, it would be sensible for Ohio’s private employers to be more amenable to their employee’s privacy concerns. For example, one compromise that balances employer and employee interests is to have a same-sex monitor accompany an employee to a bathroom stall, leave the stall door half open, and use audio rather than visual authentication of an accurate, clean drug test.

Even following Lunsford, it is clear that employers who use the direct-observation method are on much shakier legal ground and are more vulnerable to lawsuits than those who use different methods. Going forward, the best course of action for a private employer insistent on using the direct-observation method is to explicitly outline in employment contracts and consent waiver forms that drug tests are conducted using the method.[26] Private employers should also be prepared to either compromise with alternative, less-invasive procedures when collecting urine samples or be willing to terminate any and all employees who refuse a direct observation test. If a private employer believes the benefits of drug testing by the direct-observation method so far outweighs the risk of losing certain members of its workforce, that is a decision Lunsford leaves to the employer’s discretion. In light of the employment-at-will doctrine’s power within the context of privacy and consent, an employee who is adamant on protecting the privacy of their “bathroom time” during a drug test may come at the cost of their employment. 

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[1] Skinner v. Ry. Labor Executives’ Assn., 489 U.S. 602, 617 (1989).

[2] Bd. Of Edn. of Indep. School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 832 (2002) (quoting Skinner, 489 U.S. at 626).  

[3] Lunsford v. Sterilite of Ohio, L.L.C., No. 2018-1431, 2020 Ohio LEXIS 1907, at *2 (Ohio Aug. 26, 2020).

[4] Id. at *2.

[5] Id. at *2-3.

[6] Id. at *3.

[7] Id. at *4.

[8] Id. at *5.

[9] Id. at *4.

[10] Id. at *5.

[11] Id.

[12] Id.

[13] Id.

[14] Id. at *6.

[15] Id.

[16] Id. at *2.

[17] Id. at *22.  

[18] Id. at *24.

[19] Id. at *31-32 (citing Collins v. Rizkana, 652 N.E.2d 653 (1995)).

[20] Id. at *31.  

[21] Id. at *34.

[22] Id. at *22. “Sterilite had the right to condition employment on consent to drug testing under the direct-observation method, appellees had the right to refuse to submit to the direct-observation method, and because appellees were at-will employees, Sterilite had the right to terminate their employment for their failure to submit. 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.”

[23] Mers v. Dispatch Printing Co., 483 N.E.2d 150, 153 (1985).

[24] Doyon v. Home Depot U.S.A., Inc., 850 F.Supp. 125, 130 (D. Conn. 1994).

[25] Bd. Of Edn. of Indep. School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 832 (2002) (quoting Skinner, 489 U.S. at 626).

[26] The Lunsford dissent explicitly notes that consent would not have been an issue had Sterilite notified employees at the time of their hiring or when the policy was changed that the direct-observation method is used.