Michael J. Florio, Esq.
Sandra K. Law, Esq.
Clarksburg, West Virginia Schrader, Byrd & Companion
Attorney for Appellant Wheeling, West Virginia
Niall A. Paul, Esq.
Eric W. Iskra, Esq.
Spilman, Thomas & Battle
Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
2. Drug testing will not be found to be violative of public policy grounded in the potential intrusion of a person's right to privacy where it is conducted by an employer based upon reasonable good faith objective suspicion of an employee's drug usage or while an employee's job responsibility involves public safety or the safety of others. Syllabus Point 2, Twigg v. Hercules Corp., 185 W.Va. 155, 406 S.E.2d 52 (1990).
In the instant case, we uphold a grant of summary judgment by a circuit court in a case alleging invasion of privacy.
The appellant's complaint stated that Wal-Mart's pre-employment requirement of giving a urine sample for drug testing after being offered a job, but before starting to work, was per se an actionable invasion of the appellant's privacy; and that Wal-Mart had, by requiring the sample, caused the appellant embarrassment, indignity, humiliation, annoyance, inconvenience and other general damages. (See footnote 1)
Wal-Mart filed an answer admitting that the appellant had been required to submit a urine sample for drug testing, but denying that there was any illegality in or harm from this requirement. Thereafter, some limited amount of discovery took place. The appellant then filed a motion for partial summary judgment on the issue of liability. Wal- Mart filed a cross-motion for summary judgment on the same issue. The circuit court granted summary judgment to Wal-Mart, holding that the appellant had not shown an actionable invasion of privacy in Wal-Mart's requiring her to submit a urine sample for drug testing before she began to work for Wal-Mart. (See footnote 2)
The appellant's principal argument is based on our holding in Twigg v. Hercules Corp., 185 W.Va. 155, 406 S.E.2d 52 (1990). In Twigg, this Court stated in Syllabus Points 1 and 2:
1. It is contrary to public policy in West Virginia for an employer to require an employee to submit to drug testing since such test portends an invasion of an individual's right to privacy.
2. Drug testing will not be found to be violative of public policy grounded in the potential intrusion of a person's right to privacy where it is conducted by an employer based upon reasonable good faith objective suspicion of an employee's drug usage or while an employee's job responsibility involves public safety or the safety of others. [emphasis added].
Notably, and for the purposes of our holding in the instant case, importantly, Twigg was a case involving the issues arising from an employer's requirement of drug testing by current, existing employees - not by prospective employees who had not begun employment.
Our decision in Twigg relied upon Roach v. Harper, 143 W.Va. 869, 105 S.E.2d 564 (1958), in which we held in Syllabus Point 1 that:
1. The right of privacy, including the right of an individual to be let alone and to keep secret his private communications, conversations and affairs, is a right the unwarranted invasion or violation of which gives rise to a common-law right of action for damages.
In Roach, we stated:
The right of privacy has been defined as the right of an individual to be let alone, to live a life of seclusion, or to be free from unwarranted publicity. The right of privacy is closely related to many other subjects of law, e. g., libel and slander, literary property, wrongful search and seizure, compulsory physical examination and eavesdropping. Though different in some respects from such subjects, the right to privacy is an individual right that should be held inviolate. To hold otherwise, under modern means of communication, hearing devices, photography, and other technological advancements, would effectively deny valuable rights and freedoms to the individual.
The usual argument against the existence of the right of action is that it is for a wrong or tort for which no recovery was permitted at common law. We need not here, however, theorize as to the basis for the existence of the right. As above pointed out, that existence has been affirmed by the very great weight of authority. It may not be amiss, however, to quote language of Judge Parker in the opinion in Barnes Coal Corporation v. Retail Coal Merchants Ass'n, 4 Cir., 128 F.2d 645, 648: * * * It must be remembered, in this connection, that the common law is not a static but a dynamic and growing thing. Its rules arise from the application of reason to the changing conditions of society. It inheres in the life of society, not in the decisions interpreting that life; and, while decisions are looked to as evidence of the rules, they are not to be construed as limitations upon the growth of the law but as landmarks evidencing its development. As was said in Hurtado v. [People of State of] California, 110 U.S. 516, 530, 4 S.Ct. , 292, 28 L.Ed. 232, Flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law * * *. [citations omitted].
143 W.Va. at 876-877, 105 S.E.2d at 568. See also Syllabus Point 3, Sutherland v. Kroger Co., 174 W. Va. 321, 110 S.E.2d 716 (1959) (An illegal search by a private individual is a trespass in violation of the right of privacy.); Cordle v. General Hugh Mercer Corp., 174 W.Va. 321, 325 S.E.2d 111 (1984) (imposing polygraph requirement on employees is contrary to public policy).
The appellant argues that this Court should overrule the circuit court's order granting summary judgment by extending the principles set forth in Twigg to apply categorically to all instances of employment-related drug testing - both during employment, and pre-employment.
The appellee responds by arguing that the balancing between an individual's right of privacy and the needs and rights of a private employer is substantially different in the pre-employment context, and that therefore the holding in Twigg is both inapposite and inapplicable to the instant case.
We concluded in Twigg that in the case of current employment, the employee's right of privacy is not outweighed by the employer's rights and interests unless specific heightened safety concerns or well-grounded individualized suspicion is present - analogous to the kind of probable cause necessary for a warrant - and clearly outweighs the employee's important right to privacy.
However, in the pre-employment context, it is apparent - although not necessarily dispositive in every case - that a person clearly has a lower expectation of privacy. Employers regularly perform pre-employment background checks, seek references, and require pre-employment medical examinations, etc., that are far more intrusive than what would be considered tolerable for existing employees without special circumstances. Giving a urine sample is a standard component of a medical examination.
In light of the important issues involved, we are not prepared in deciding this case to paint with an unnecessarily broad brush - and to say that under no set of particular circumstances could a person successfully assert an invasion of privacy-based claim arising from a particular pre-employment drug testing requirement. Moreover, we strongly affirm our holding in Twigg regarding the appropriate balance that must be struck between privacy rights and employer's interests for an employer's current employees. We also point out that our ruling today relates only to the case of a private employer; and nothing in this opinion is to be seen as indicative of the scope of the legal rights of or restraints upon a public employer, the conduct of which directly implicates, inter alia, the constitutional prohibitions against searches without probable cause.
In this regard, we are firmly committed to the unique and essential role of courts in protecting the individual's private life and space from well-intentioned but ultimately oppressive, insulting, degrading, and demeaning intrusions - whether these intrusions come from the omnipresent forces of the state, or from the equally omnipresent and inescapable forces of the market.
The principle and right of personal autonomy and privacy is just as important as the more traditional civil rights of freedom of assembly, speech, and religion. It is central to our constitutional system of government. Its protection needs strong and sometimes controversial and fearless, bulwarks - especially in an age of ever-more sophisticated and intrusive technologies, and cries for heightened surveillance and monitoring of every aspect of life. It is a crucial role of courts in a constitutional system to see that these bulwarks of privacy, autonomy, and ultimately freedom remain strong - even in the face of short-sighted efforts to erode them, or to make an end-run around them. (See footnote 3)
Having said this, we agree with the circuit court that the principles of Twigg do not extend to the pre-employment situation and thus do not preclude the granting of summary judgment to Wal-Mart in the instant case. We conclude that the appellant put forth no facts that would show that her right to privacy was violated in the instant case simply as a result of Wal-Mart's requiring her, prior to starting work, to give a urine sample for drug testing purposes.
In making our decision, we are particularly mindful of the specter of a court- created slippery slope in this evolving area of law. Courts must guard against the inadvertent self-fulfilling shrinking of expectations of privacy - as incremental intrusions into areas of personal life and inviolability, traditionally viewed as private and protected, may perforce be validated in the light of similar and tolerated past erosions of the private sphere. It is for this reason that we necessarily must have some degree of hesitancy with respect to our ruling in the instant case - as we are putting a stamp of approval on a type of intrusion that we have not sanctioned before (nor have we before disapproved it). Time will tell if we can hold to our resolve not to go further down a slippery slope.