On August 26, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the argument here. 

On January 28, 2020, the Supreme Court of Ohio will hear oral argument in the case of Donna L. Lunsford, et al. v. Sterilite of Ohio, LLC, et al., 2018-1431. At issue in the case is whether allegations of the direct observation of an at-will employee’s genitals during a random drug screening state a claim for invasion of privacy.

Case Background

Plaintiffs-Appellees Donna Lunsford, Peter Griffiths, Adam Keim, and Laura Williamson (collectively, the “Employees”) are current or former employees of Defendant-Appellant Sterilite. Sterilite has a substance abuse policy that provides for employee testing either at random or when there is reasonable suspicion that an employee may be impaired. Since October 2016, Sterilite began using a direct observation method of testing, in which each employee was accompanied by an individual of the same sex to a restroom designated exclusively for collecting urine samples. While in the restroom, the person accompanying the tested employees visually observed the employees’ genitals and production of the urine sample. Defendant-Appellant U.S. Healthworks completed the collection at the direction of Sterilite.

Lunsford, Griffiths, Keim, and Williamson were all subject to this direct method of collection, which was disclosed to each of them immediately prior to conducting the test—direct observation was not disclosed in the substance abuse policy. Each employee signed a consent and release form before being tested, but again, this form did not disclose direct observation as a method of collection. After the respective tests, Sterilite terminated Keim and Williamson because they failed to produce a urine sample within two and a half hours. Lunsford and Griffiths were able to supply samples, but Lunsford alleges that she was made particularly uncomfortable because the test forced her to show genital scarring from a surgical procedure. Lunsford and Griffiths are still employed by Sterilite.

The Employees filed a complaint in December of 2016 in the Stark County Court of Common Pleas, alleging Invasion of Privacy, Wrongful Discharge in Violation of Public Policy, Failure to Remit Minimum Wages, Failure to Remit Wages, and Breach of Contract. They sought declaratory judgment, injunctive relief, and class certification. Sterilite and U.S. Healthworks filed a motion to dismiss for failure to state a claim pursuant to Rule 12(B)(6), which Judge Chryssa N. Hartnett granted as to Invasion of Privacy, Wrongful Discharge, Declaratory Judgment, Injunctive Relief, and Class Certification. The employees voluntarily dismissed their remaining claims and appealed.

The Appeal

In a unanimous opinion authored by Judge Craig Baldwin, and joined by Judges W. Scott Gwin and William B. Hoffman, the Fifth District Court of Appeals reversed. Although the Employees submitted four assignments of error, Judge Baldwin limited the analysis to the determination of whether the Employees stated a claim for invasion of privacy, reasoning that it was a common element of each assignment of error. The common law tort of invasion of the right of privacy includes the wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. This type of claim does not require that Sterilite and U.S. Healthworks exposed the Employees’ private matters to the public, but rather only that the Employees had a reasonable expectation of privacy into which Sterilite and U.S. Healthworks wrongfully intruded.

Judge Baldwin agreed that the Employees have a reasonable expectation of privacy in the exposure of their genitals. Although Ohio courts have long upheld an employer’s right to require urine samples, courts have not held that the direct method of observation used here does not violate privacy rights, and indeed, have considered the reasonableness of particular test procedures to be fact findings. While employees may have a reduced expectation of privacy in this context, that does not mean this expectation of privacy is completely eliminated. Courts in Ohio and across the country have repeatedly reaffirmed individuals’ reasonable expectation of privacy in regard to the exposure of their genitals, and no case states that as a matter of law direct observation in an employment context does not violate this expectation. The Employees have at least stated a claim for invasion of privacy, which requires factual determinations on the particular methods at issue on remand.

Sterilite and U.S. Healthworks appealed.

Votes to Accept the Case

Yes: Justices Fischer, French, Kennedy, and former Justice O’Donnell.

No: Justices DeWine, and former Justice DeGenaro.

Chief Justice O’Connor not participating

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.

Key Statutes and 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.”)

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.”)

Strutner v. Dispatch Printing Co., 2 Ohio App. 3d 377 (10th Dist. 1982) (“‘Wrongful’ does not require that the intrusion itself be wrongful in the sense that there is no right to make any intrusion. Rather, ‘wrongful’ may relate to the manner of the making of the intrusion as was the case in Housh.”)

 Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989) (“[T]he collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable … .”)

Haller v. Phillips, 69 Ohio App. 3d 574 (10th Dist. 1990) (“[The intrusion] must be of such a character as would shock the ordinary person to the point of emotional distress.”)

Groves v. Goodyear Tire and Rubber Co., 70 Ohio App.3d 656 (8th Dist. 1991) (“The courts appear to be supportive of employers’ attempts to create a safe working environment by holding that drug-testing does not constitute an invasion of the employees’ common law right to privacy.”)

Wilcher v. City of Wilmington, 139 F.3d 366 (3rd Cir. 1998) (firefighters had a diminished expectation of privacy in random drug screenings, yet could still find the testing procedure highly offensive within the meaning of Delaware tort law.)

Norris v. Premier Integrity Solutions, Inc., 641 F.3d 695 (6th Cir. 2011) (direct observation method of testing does not constitute an invasion of privacy in a criminal, pretrial release program.)

Turner v. Shahed Ents., 2011-Ohio-4654 (10th Dist.) (“To establish a wrongful intrusion, a plaintiff must demonstrate that she had a reasonable expectation of privacy in the area allegedly intruded.”)

Sterilite’s Argument

The Fifth District has dramatically expanded employer liability at a time when employers are under more pressure than ever to deter the use of illegal drugs in the workplace. The facts in this case, where the Employees have voluntarily submitted to a drug test conducted by a professional third party, do not rise to the type of intrusion actionable as invasion of privacy. The consent form signed by each employee here gave consent to any testing necessary. There is no allegation of impropriety against the testing professionals.

The Employees have a significantly decreased expectation of privacy as at-will employees, particularly when they have consented to mandatory urinalysis. Sterilite has made a legitimate, job-related intrusion to which the Employees cannot claim a protected privacy interest. Direct observation is the only way to effectively detect and deter cheating on a urinalysis test.

Finally, the private and professional manner of the testing in this case does not make Sterilite’s use of direct observation actionable as an invasion of privacy—unless the Employees allege that Sterilite has no legitimate business interest in detecting and deterring the use of illegal drugs. Rights of privacy do not extend to employees in random drug tests. The direct observation method of testing here is a strict function of a legitimate, job-related inquiry, and as such does not violate any of the Employee’s privacy interests. This type of legitimate, job-related detection and deterrence of employee drug abuse does not constitute tortious intrusion on seclusion.

 U.S. Healthworks’Argument

A mandatory, random drug test using the direct observation method, administered by a same-sex monitor in a private room, with employee consent, does not amount to the wrongful intrusion of the employee’s privacy. The only branch of invasion of privacy at issue here is the tort of intrusion upon seclusion, or the intrusion upon the seclusion of another in a way that would be highly offensive to a reasonable person. Under this variant, the plaintiff must have a reasonable expectation of privacy to state a claim. Seclusion claims have a narrow scope of protection, and the kinds of activities found within this scope include wiretapping, harassment, and photographing people through the windows of their homes. This has not been extended to anything remotely similar to the facts of this case.

In this case, there is no allegation that U.S. Healthworks acted maliciously or otherwise meant to invade the Employees’ privacy. The tests were administered professionally and privately. And, employees do not have a reasonable expectation of privacy in this context. Ohio courts have repeatedly affirmed an employer’s right to perform random drug tests of employees. Private employers have a strong interest in maintaining a safe work environment.

Moreover, the Employees explicitly consented to the testing. Even though they would have faced adverse consequences if they refused testing, their consent was still valid. Even if the Employees did not explicitly consent to direct observation, such a method still does not invade their privacy, as the general consent agreement is sufficient. In an industry highly regulated for safety, the test methods used were reasonable.

Finally, as a third-party drug screening laboratory, U.S. Healthworks is not a party against which an invasion of privacy claim may be brought, and the Court should reject any rule that imposes such liability.  U.S. Healthworks plays no role in selecting the employees that the employer chooses to test and the methods an employer chooses to use in testing. There is no allegation that U.S. Healthworks or its employees acted unprofessionally, or with intent to demean or harass.

The Employees’ Argument

There is no public policy justification for shielding Sterilite and U.S. Healthworks from liability for invasion of privacy as a matter of law for requiring the Employees to expose their genitals to complete strangers in the course of collecting urine samples. While Sterilite has the privilege of conducting a drug screening program, it does not have the right to carry out that program in such a way that would cause a reasonable person to suffer outrage, mental distress, embarrassment, or humiliation.

The reasonableness of Sterilite’s program is a factual finding—not something to be determined on a motion to dismiss. An invasion of privacy claim can be based on the manner in which a drug screening test is carried out, even if the existence of a program itself is insufficient to state a claim.

Sterilite’s claim that the Employee’s claims are barred by the consent forms that they signed before they were told about direct observation is not a reasonable conclusion. The consent form does not say anything about direct observation, and direct observation was not disclosed until after the employees signed the forms. The employees consented to the testing, not to the use of direct observation. In any event, the consent form does not constitute a knowing and voluntary waiver of any claim for invasion of privacy.

Finally, U.S. Healthworks’ argument that it cannot be liable cannot be sustained under longstanding principles governing the relationships of principals and agents, and the liability agents assume when carrying out the tortious instructions of their principals. Further, this argument was not raised below and should be deemed waived.

Employees’ First Proposed Counter-Proposition of Law

A private sector employer exercising the privilege of conducting drug screenings in the work setting is liable for acts that invade the privacy of its employees when the manner in which such screenings are conducted induces outrage, emotional distress, embarrassment, or humiliation in a “person of ordinary sensibilities.” Housh v. Pesh [sic], 165 Ohio St. 35, 39, 133 N.E.2d 340, 343 (1956), construed and applied.

Employees’ Second Proposed Counter-Proposition of Law

An agent carrying out the instructions of a private sector employer in administering a drug screening program is liable for acts that invade the privacy of individuals subjected to such program when the manner in which such screening is conducted induces outrage, emotional distress, embarrassment, or humiliation in a “person of ordinary sensibilities.” Housh v. Pesh [sic], 165 Ohio St. 35, 39, 133 N.E.2d 340, 343 (1956), construed and applied.

Amici in Support of the Employees

Ohio Employment Lawyers Association

The Ohio Employment Lawyers Association (“OLEA”) is a professional organization for Ohio attorneys who represent employees in labor and employment matters.

Sterilite’s drug-testing policy forces its employees to undergo suspicionless, random drug testing by direct observation, and is unreasonable and unnecessary. The appellate decision should be affirmed.

OLEA’s Proposed Proposition of Law

Ohio private employers do not have the right to compel employees to show their genitals to a third party during random drug testing without articulable reasons to question the integrity of the test results for a given employee.

Student Contributor: Carson Miller