Many state constitutions guarantee a right to privacy independent of the right to privacy found in the federal constitution. Those states include Alaska, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina, Texas, and Washington. Some of these state constitutional provisions apply only to public sector employees, while others have been interpreted to apply generally to all state residents. Although it is difficult to make meaningful generalizations about each of these state constitutional provisions, employees’ privacy interests are frequently afforded greater protection under state constitutional law than they are under the federal constitution.
For example, the Texas Supreme Court invalidated a state agency’s mandatory polygraph testing policy on the grounds that it violated the employee’s privacy rights protected by the Texas constitution. Texas State Employees Union v. Texas Department of Mental Health & Mental Retardation, 746 S.W.2d203 (1987). The court found that the test was “highly offensive” to the average employee because of the extremely personal nature of the questions asked. The court also concluded that the test was not accurate enough to provide a reliable way of identifying misbehaving, inefficient, or unproductive employees.
A California court reinstated a railroad employee who was fired for refusing to take a random drug test. The court noted that an employee’s right to privacy in refusing a drug test is not absolute under the state constitution but must be weighed against the employer’s competing interests. Luck v. Southern Pac. Transp. Co., 218 Cal. App. 3d 1, 267 Cal. Rptr. 618 (1990), rehearing denied 489 U.S. 939, 112 L. Ed. 2d 309, 111 S. Ct. 344 (1990). Conceding that the employer had a compelling interest in maintaining a safe workplace, the court noted that the discharged employee was simply a clerk who had no direct involvement with the railway operations. As a result, the court determined that the employee’s privacy interests were more substantial than the employer’s countervailing interests.
At the same time, state courts are pragmatic. They are normally disinclined to interpret a general right to privacy as a guarantee of specific individual freedoms that might be exercised to disrupt the workplace or interfere with an employer’s legitimate interest in gathering relevant information about employees and job applicants. Thus, the Florida Supreme Court rejected a prospective employee’s claim that she was not required to disclose whether she was a smoker on a pre-employment application. City of North Miami v. Kurtz, 653 So.2d 1025 (1995). The court found that the applicant did not enjoy a reasonable expectation of privacy regarding her use of tobacco.
