Strip-Search Before U.S. Supreme Court

Most employers have a drugs in the workplace policy. Ususally, the policy says something like you can’t use, possess or distribute illegal drugs at work or be under the influence of illegal drugs at work.

In addition to drug testing, employers enforce the policy by reserving the right to search employee property or the employee. Searching an employee is potentially problematic, because if you’re a public or government employer, you’re flirting with unlawful search and seizure under the Fourth Amendment. If you’re a private employer, you’re concerned about invasion of privacy, infliction of emotional distress, or outrageous conduct.

In less than a month, a case involving the search of a student in a public school will be argued before the U.S. Supreme Court. Though not an employment case, the Court’s ruling will have implications for all search policies designed to prevent drug use.

A student was in possession of prescription-strenth ibuprofen pills, which violated the school’s drug policy. The student said she received them from another student, a 13-year-old female honors student. Accordingly, the assistant principal ordered a female nurse and a female secretary to search the 13-year-old. She was required to strip. No pills were found, but a lawsuit was filed.

The Ninth U.S. Circuit Court of Appeals ruled that the school had violated the student’s Fourth Amendment rights. The Supreme Court accepted the school’s appeal.

The school argues that it had reasonable suspicion to believe the student had pills in violation of school policy, and it acted reasonably by having two females strip-search the student in private. That remains to be seen.

Private employers have also been sued for this sort of thing. Whatever the Supreme Court says, employers should beware of strip-searching an employee. Regardless of how discreet you are, there’s a high probability you’ll be sued.