The Story of Luck V. Southern Pacific Transportation Co.: The Struggle to Protect Employee Privacy

Posted: 15 Oct 2006

See all articles by Pauline Kim

Pauline Kim

Washington University in St. Louis - School of Law


In the mid-1980's, urinalysis drug testing of workers by government and private employers expanded rapidly, provoking a spate of lawsuits challenging their legality. The high profile cases involved constitutional challenges based on the Fourth Amendment's prohibition of unreasonable searches and seizures. For the typical private sector employee, however, constitutional arguments were unavailable, and a worker who wished to challenge mandatory workplace drug testing had to rely primarily on existing common law doctrines. The Story of Luck tells of one such worker and how one California court of appeal attempted to fashion a framework for analyzing employee privacy claims under the common law. Barbara Luck was an ordinary worker, arriving at work on an ordinary day, when she was confronted with the unexpected request that she produce a urine sample for testing, even though her employer admitted that it had no basis for suspecting her of drug use and had no complaints about her job performance. When she objected, she was first suspended, then terminated from her job. Her subsequent lawsuit raised the issue of whether an employer could require an employee in a non-safety-sensitive job to submit to suspicionless urinalysis testing, or whether such testing infringed the privacy rights of the employee.

Luck's suit alleged that her employer's requirement that she submit to drug testing violated her right to privacy and that she was wrongfully discharged when she refused to comply. A jury agreed, awarding her nearly a half million dollars in damages. On appeal, the California court of appeal directly confronted the tension between what it acknowledged was Luck's substantial interest in privacy and the law's traditional deference to an employer's decision to discharge a worker. Although the court of appeals ultimately upheld the jury award, it did so in a way that weakened employee privacy rights in the long run. The judges who decided the case produced a deeply ambivalent opinion. On the one hand, it recognized the fundamental nature of privacy and acknowledged that urinalysis testing infringed that right in significant ways. On the other hand, it exhibited a reluctance to permit employees to fully vindicate that right vis à vis their employers by confining its approval of the jury's verdict to a narrow contract analysis and rejecting a potentially more expansive public policy tort claim. In this way, the decision clearly illustrates the deep tension between recognition of basic employee rights of privacy and the traditional rule of employment-at-will.

Keywords: workplace privacy, drug testing, employment at will

Suggested Citation

Kim, Pauline, The Story of Luck V. Southern Pacific Transportation Co.: The Struggle to Protect Employee Privacy. EMPLOYMENT LAW STORIES, Foundation Press, 2006; Washington University School of Law Legal Studies Research Paper Series No. 06-10-02. Available at SSRN:

Pauline Kim (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States
314-935-8570 (Phone)
314-935-5356 (Fax)

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