Sarah Borse v. Piece Goods Shop, Inc
1992 WL 97177, 963 F.2d 611 (1992)
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Rule of Law:
The discharge of a private-sector, at-will employee for refusing to consent to a drug and alcohol testing program may violate public policy if the program constitutes a substantial and highly offensive invasion of the employee's privacy, which is determined by balancing the employee's privacy interests against the employer's legitimate business interests.
Facts:
- Sarah Borse was employed as a sales clerk by Piece Goods Shop, Inc. for nearly fifteen years.
- In January 1990, the Shop instituted a new drug and alcohol policy.
- The policy required all employees to sign a consent form for urinalysis screening and for searches of their personal property located on the Shop's premises.
- Borse refused to sign the consent form, asserting on multiple occasions that the policy violated her right to privacy and to be free from unreasonable searches.
- The Shop insisted that she sign the form and threatened her with termination if she did not comply.
- On February 9, 1990, the Shop terminated Borse's employment for her refusal to sign the consent form.
Procedural Posture:
- Sarah Borse filed a lawsuit against Piece Goods Shop, Inc. in the U.S. District Court for the Eastern District of Pennsylvania for wrongful discharge.
- The Shop moved to dismiss Borse's complaint for failure to state a claim upon which relief could be granted, pursuant to FRCP 12(b)(6).
- The district court (a trial court) granted the Shop's motion and dismissed the complaint.
- Borse, as the appellant, appealed the district court's dismissal to the U.S. Court of Appeals for the Third Circuit.
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Issue:
Does discharging a private-sector, at-will employee for refusing to consent to a urinalysis drug testing and personal property search program violate a clear mandate of public policy under Pennsylvania law, thereby creating a cause of action for wrongful discharge?
Opinions:
Majority - Becker, Circuit Judge.
Yes, discharging an at-will employee for refusing to consent to such a program can violate public policy. While constitutional protections against unreasonable searches do not apply to private employers due to the absence of state action, a public policy sufficient to support a wrongful discharge claim may be derived from the common law tort of intrusion upon seclusion. An employer's drug and alcohol program that constitutes a 'substantial and highly offensive' invasion of privacy, as determined by a balancing of the employee's privacy interests against the employer's business interests, would violate this public policy. The court found that Borse's complaint did not contain sufficient factual allegations about how the Shop's program was intrusive, but it held that such a claim is cognizable under Pennsylvania law and remanded the case to allow Borse to amend her complaint.
Analysis:
This decision is significant for establishing that the common law tort of invasion of privacy can serve as the source of public policy for a wrongful discharge claim in the context of private-sector drug testing. It moves the legal analysis away from constitutional claims, which fail due to the state action doctrine, and provides a viable, though narrow, path for at-will employees to challenge intrusive workplace policies. By adopting a balancing test, the court created a framework that requires a case-by-case analysis of the reasonableness of an employer's testing program, rather than a categorical rule for or against such testing. This impacts future cases by forcing employers to design and implement drug testing and search policies in a manner that is not 'highly offensive' to a reasonable person, considering the specific circumstances of the workplace and the employee's duties.
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