2018 Ohio 3437
Ohio Ct. App.2018Background
- Employees at Sterilite were ordered to provide urine samples under a company Substance Abuse Policy that authorized random and reasonable-suspicion testing.
- Sterilite and contracted collector U.S. Healthworks collected urine by a "direct observation" method requiring an attendant of the same sex to visually observe employees’ genitals during urination; the method was disclosed only immediately before testing and was not described in the Policy.
- Four plaintiffs (two later terminated for failure to produce within 2.5 hours) challenged the direct-observation procedure as highly offensive and intrusive; one plaintiff alleged genital scarring was exposed.
- Plaintiffs sued for invasion of privacy and sought declaratory and injunctive relief and class certification; the trial court dismissed those claims under Civ.R. 12(B)(6).
- The appellate court reviewed de novo whether the complaint stated an invasion-of-privacy claim based on wrongful intrusion (Housh category) and whether dismissal was appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether direct visual observation of genitals during urine collection can state a common-law invasion-of-privacy (intrusion on seclusion) claim | Direct observation of genitals while urinating is a wrongful intrusion that outrages ordinary sensibilities and thus states a claim | Employees’ privacy expectation is reduced for urine production/testing; prior precedent allows testing and undermines a privacy claim | Reversed: Plaintiffs pleaded a reasonable expectation of privacy in their genitals and alleged intrusive direct observation sufficient to survive 12(B)(6) |
| Whether plaintiffs’ signed consent forms eliminated any reasonable expectation of privacy | Consent form did not disclose direct observation; plaintiffs alleged consent was not informed regarding the intrusive method | Defendants argued consent to testing waived privacy objections | Court rejected dismissal based on consent at pleading stage — reasonableness and informed consent are factual matters for later resolution |
| Whether precedent on drug testing (random or workplace-testing cases) bars claims about collection method | Plaintiffs: cases upholding testing address specimen production/testing, not intrusive collection methods | Defendants: cases (e.g., Groves, Baggs) show reduced privacy and support dismissal | Court held those precedents do not foreclose a claim where the alleged method (direct genital observation) is sufficiently intrusive; factual inquiry required |
| Whether declaratory/injunctive relief and class certification claims should be dismissed as derivative of privacy claim | Plaintiffs: remedial and class claims depend on surviving invasion-of-privacy claim | Defendants: dismissal of privacy claim moots these remedies | Court held those claims are premature to decide because privacy claim survives pleading stage; remand required |
Key Cases Cited
- Housh v. Peth, 133 N.E.2d 340 (Ohio 1956) (defines invasion-of-privacy categories and reasonableness limit on collection methods)
- Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602 (U.S. 1989) (urine collection implicates recognized privacy interests)
- Groves v. Goodyear Tire & Rubber Co., 591 N.E.2d 875 (Ohio Ct. App. 1991) (workplace drug testing does not necessarily invade privacy; consent reduces expectation)
- Baggs v. Eagle-Picher Indus., 957 F.2d 268 (6th Cir. 1992) (upholding employer testing program but recognizing possible recovery for intrusion during eliminatory functions)
- Borse v. Piece Goods Shop, Inc., 963 F.2d 611 (3d Cir. 1992) (direct-observation collection methods can be a substantial, highly offensive intrusion)
- Kelley v. Schlumberger Tech. Corp., 849 F.2d 41 (1st Cir. 1988) (affirming recovery where direct observation of urination was at the core of privacy claim)
- Wilcher v. City of Wilmington, 139 F.3d 366 (3d Cir. 1998) (focuses on degree of observation; incidental observation may not be an invasion)