This Comment will analyze Article 1, Section 7 of the Washington Constitution, the search and seizure provision, and conclude that this provision should be construed to provide greater protection to employees against employer drug testing absent individualized suspicion than the Fourth Amendment does. The scope of this Comment, however, is limited to the rights of state employees with respect to suspicionless drug testing. The rights of federal employees are not included in this analysis because they are protected against suspicionless drug testing only by the Fourth Amendment, not by the analogous Washington provision. Moreover, Article 1, Section 7, like the Fourth Amendment, only protects individuals against state action, not private action. Thus, the drug testing programs that are germane to the topic of this Comment are those mandated by state government. The scope of this Comment is also limited to employer drug testing of employees after the creation of the employer-employee relationship. That is, this Comment does not specifically address the issue of the constitutionality of pre-employment drug testing as a part of the employee screening process. Section II briefly summarizes current Fourth Amendment doctrine as to bodily searches not based on individualized suspicion and then presents the most recent decisions of the United States Supreme Court on employer drug testing. Section III discusses the Washington Supreme Court's evolving interpretation of Article 1, Section 7, the Washington Constitution's analogous provision to the Fourth Amendment. From this discussion, Section III concludes that the constitutional history, contemporary Washington precedent, and particular privacy issues implicated by drug testing support increased protection under the Washington Constitution. Finally, Section IV explores how other states have interpreted their state constitutions with respect to drug testing issues, but concludes that this precedent provides little guidance for the Washington Supreme Court.
Ken Davis, Washington Constitution Article 1, Section 7: The Argument for Broader Protection Against Employer Drug Testing, 16 SEATTLE U. L. REV. 1335 (1993).