Sibi SOROKA et al., Plaintiffs and Appellants, v. DAYTON HUDSON CORPORATION, Defendant and Respondent.
Appellants Sibi Soroka, Sue Urry and William d'Arcangelo 1 filed a class action challenging respondent Dayton Hudson Corporation's practice of requiring Target Store security officer applicants to pass a psychological screening. The trial court denied Soroka's motion for a preliminary injunction to prohibit the use of this screening pending the outcome of this litigation. It also denied Soroka's motion for class certification and granted Dayton Hudson Corporation's motion to deny class certification. Soroka appeals from these orders,2 contending that a preliminary injunction should issue because he is likely to prevail on the merits of his constitutional and statutory claims. He also urges us to find that the trial court should have certified the class. The American Civil Liberties Union (ACLU) filed an amicus brief in support of Soroka's constitutional right to privacy claims. We reverse the trial court's order denying a preliminary injunction and remand the matter to the trial court for further proceedings on class certification.
Respondent Dayton Hudson Corporation owns and operates Target Stores throughout California and the United States.3 Job applicants for store security officer (SSO) positions must, as a condition of employment, take a psychological test that Target calls the “Psychscreen.” An SSO's main function is to observe, apprehend and arrest suspected shoplifters. An SSO is not armed, but carries handcuffs and may use force against a suspect in self-defense. Target views good judgment and emotional stability as important SSO job skills. It intends the Psychscreen to screen out SSO applicants who are emotionally unstable, who may put customers or employees in jeopardy, or who will not take direction and follow Target procedures.
The Psychscreen is a combination of the Minnesota Multiphasic Personality Inventory and the California Psychological Inventory. Both of these tests have been used to screen out emotionally unfit applicants for public safety positions such as police officers, correctional officers, pilots, air traffic controllers and nuclear power plant operators.4 The test is composed of 704 true-false questions. At Target, the test administrator is told to instruct applicants to answer every question.
The test includes questions about an applicant's religious attitudes, such as: “[¶] 67. I feel sure that there is only one true religion․ [¶] 201. I have no patience with people who believe there is only one true religion․ [¶] 477. My soul sometimes leaves my body․ [¶] 483. A minister can cure disease by praying and putting his hand on your head․ [¶] 486. Everything is turning out just like the prophets of the Bible said it would․ [¶] 505. I go to church almost every week. [¶] 506. I believe in the second coming of Christ․ [¶] 516. I believe in a life hereafter․ [¶] 578. I am very religious (more than most people)․ [¶] 580. I believe my sins are unpardonable․ [¶] 606. I believe there is a God․ [¶] 688. I believe there is a Devil and a Hell in afterlife.”
The test includes questions that might reveal an applicant's sexual orientation, such as: “[¶] 137. I wish I were not bothered by thoughts about sex․ [¶] 290. I have never been in trouble because of my sex behavior․ [¶] 339. I have been in trouble one or more times because of my sex behavior․ [¶] 466. My sex life is satisfactory․ [¶] 492. I am very strongly attracted by members of my own sex․ [¶] 496. I have often wished I were a girl. (Or if you are a girl) I have never been sorry that I am a girl․ [¶] 525. I have never indulged in any unusual sex practices․ [¶] 558. I am worried about sex matters․ [¶] 592. I like to talk about sex․ [¶] 640. Many of my dreams are about sex matters.” 5
An SSO's completed test is scored by the consulting psychologist firm of Martin–McAllister. The firm interprets test responses and rates the applicant on five traits: emotional stability, interpersonal style, addiction potential, dependability and reliability, and socialization—i.e., a tendency to follow established rules. Martin–McAllister sends a form to Target rating the applicant on these five traits and recommending whether to hire the applicant. Hiring decisions are made on the basis of these recommendations, although the recommendations may be overridden. Target does not receive any responses to specific questions. It has never conducted a formal validation study of the Psychscreen, but before it implemented the test, Target tested 17 or 18 of its more successful SSO's.
Appellants Sibi Soroka, Susan Urry and William d'Arcangelo were applicants for SSO positions when they took the Psychscreen. All three were upset by the nature of the Psychscreen questions. Soroka was hired by Target. Urry—a Mormon—and d'Arcangelo were not hired. In August 1989, Soroka filed a charge that use of the Psychscreen discriminated on the basis of race, sex, religion and physical handicap with the Department of Fair Employment and Housing.
Having exhausted their administrative remedies, Soroka, Urry and d'Arcangelo filed a class action against Target in September 1989 to challenge its use of the Psychscreen. The complaint was amended twice. The second amended complaint alleged that the test asked invasive questions that were not job-related. Soroka alleged causes of action for violation of the constitutional right to privacy, invasion of privacy, disclosure of confidential medical information, fraud, negligent misrepresentation, intentional and negligent infliction of emotional distress, violation of the Fair Employment and Housing Act, violation of sections 1101 and 1102 of the Labor Code, and unfair business practices. This complaint prayed for both damages and injunctive relief.
In June 1990, Soroka moved for a preliminary injunction to prohibit Target from using the Psychscreen during the pendency of the action. A professional psychologist submitted a declaration opining that use of the test was unjustified and improper, resulting in faulty assessments to the detriment of job applicants. He concluded that its use violated basic professional standards and that it had not been demonstrated to be reliable or valid as an employment evaluation. For example, one of the two tests on which the Psychscreen was based was designed for use only in hospital or clinical settings. Soroka noted that two of Target's experts had previously opined that the Minnesota Multiphasic Personality Inventory was virtually useless as a preemployment screening device. It was also suggested that the Psychscreen resulted in a 61 percent rate of false positives—that is, that more than 6 in 10 qualified applicants for SSO positions were not hired.
Target's experts submitted declarations contesting these conclusions and favoring the use of the Psychscreen as an employment screening device. Some Target officials believed that use of this test has increased the quality and performance of its SSO's. However, others testified that they did not believe that there had been a problem with the reliability of SSO applicants before the Psychscreen was implemented. Target's vice president of loss prevention was unable to link changes in asset protection specifically to use of the Psychscreen. In rebuttal, Soroka's experts were critical of the conclusions of Target's experts. One rebuttal expert noted that some of the intrusive, non-job-related questions had been deleted from a revised form of the test because they were offensive, invasive and added little to the test's validity.
The trial court denied Soroka's motion to certify the class and granted Target's motion to deny class certification. The court concluded that the case was not an appropriate one for certification because of the predominantly individual nature of the claims. It found no well-defined community of interest among class members. The court also denied the motion because it could not conclude that the class would be fairly and adequately represented by Soroka, Urry, d'Arcangelo and their counsel, although it noted that counsel was extremely qualified in employment litigation. The court stated that because Soroka's answers to the Psychscreen test that he took had twice been made public, that disclosure would likely be an issue of substantial import to the invasion of privacy claims at trial.
The trial court also denied Soroka's motion for preliminary injunction. It ruled that he had not demonstrated a reasonable probability of prevailing on the merits of the constitutional or statutory claims at a trial. The court found that Target demonstrated a legitimate interest in psychologically screening applicants for security positions to minimize the potential danger to its customers and others. It also found that Target's practice of administering this test to SSO applicants was not unreasonable.6 Finally, the trial court denied both parties' motions for summary adjudication. This appeal followed.7
II. PRELIMINARY INJUNCTION
First, Soroka contends that the trial court erred in not issuing a preliminary injunction. He argues that, contrary to the trial court's findings, he is likely to prevail on the merits of both his constitutional and statutory claims. When a trial court decides whether to issue a preliminary injunction, it must consider the likelihood that the plaintiffs will prevail on the merits at trial. On appeal from an order denying a preliminaryinjunction, we do not ordinarily decide the merits of the complaint, but determine only whether the trial court abused its discretion in denying the injunction. (Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 1039–1040, 264 Cal.Rptr. 194.) The appellants bear the burden of making a clear showing of abuse. (Socialist Workers etc. Committee v. Brown (1975) 53 Cal.App.3d 879, 889, 125 Cal.Rptr. 915.) We must review the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in its favor and resolving conflicts in the evidence in favor of the trial court's order. (People ex rel. Gillespie v. Neu (1989) 209 Cal.App.3d 1066, 1072–1073, 257 Cal.Rptr. 778.) Generally, courts should resolve dispositive statutory issues before reaching constitutional issues. (Wolston v. Reader's Digest Assn., Inc. (1979) 443 U.S. 157, 160–161 fn. 2, 99 S.Ct. 2701, 2703–2704 fn. 2, 61 L.Ed.2d 450; Rancho La Costa, Inc. v. Superior Court (1980) 106 Cal.App.3d 646, 653 fn. 4, 165 Cal.Rptr. 347, cert. den. 450 U.S. 902, 101 S.Ct. 1336, 67 L.Ed.2d 326.) However, as the statutory and constitutional claims before us stem from the same alleged offensive questions and must ultimately be resolved in the trial court, we will address both herein. (Ibid.)
A. Constitutional Claim
First, Soroka argues that he is likely to prevail at trial on his constitutional right to privacy claim. The parties dispute the standard to be applied to determine whether Target's violation of Soroka's privacy was justified. In order to understand the various legal issues underlying this contention, a review of the basic legal concepts that guide us is in order.
1. The Right to Privacy
The California Constitution explicitly protects our right to privacy. (White v. Davis (1975) 13 Cal.3d 757, 773, 120 Cal.Rptr. 94, 533 P.2d 222; Alarcon v. Murphy (1988) 201 Cal.App.3d 1, 5, 248 Cal.Rptr. 26; see Cal. Const., art. I, § 1.) Article I, section 1 provides: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” “By this provision, California accords privacy the constitutional status of an inalienable right, on a par with defending life and possessing property.” (Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 15, 267 Cal.Rptr. 618, cert. den. 498 U.S. 939, 111 S.Ct. 344, 112 L.Ed.2d 309; see Vinson v. Superior Court (1987) 43 Cal.3d 833, 841, 239 Cal.Rptr. 292, 740 P.2d 404.) Before this constitutional amendment was enacted, California courts had found a state and federal constitutional right to privacy even though such a right was not enumerated in either constitution, and had consistently given a broad reading to the right to privacy. Thus, the elevation of the right to privacy to constitutional stature was intended to expand, not contract, privacy rights. (Id., 218 Cal.App.3d at pp. 16–17, 267 Cal.Rptr. 618.)
Target concedes that the Psychscreen constitutes an intrusion on the privacy rights of the applicants, although it characterizes this intrusion as a limited one. However, even the constitutional right to privacy does not prohibit all incursion into individual privacy. (Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at p. 20, 267 Cal.Rptr. 618 [employee drug testing case]; see Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 7, 1972) pp. 27–28.) The parties agree that a violation of the right to privacy may be justified, but disagree about the standard to be used to make this determination. At trial, Target persuaded the court to apply a reasonableness standard because Soroka was an applicant, rather than a Target employee. (See Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d at pp. 1046–1052, 264 Cal.Rptr. 194.) On appeal, Soroka and the ACLU contend that Target must show more than reasonableness—that it must demonstrate a compelling interest—to justify its use of the Psychscreen. (See White v. Davis, supra, 13 Cal.3d at pp. 775–776, 120 Cal.Rptr. 94, 533 P.2d 222; Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at p. 20, 267 Cal.Rptr. 618.)
2. Applicants vs. Employees
Soroka and the ACLU contend that job applicants are entitled to the protection of the compelling interest test, just as employees are. The trial court disagreed, employing a reasonableness standard enunciated in a decision of Division Three of this District which distinguished between applicants and employees. (Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d 1034, 264 Cal.Rptr. 194.)
In Wilkinson, a book publisher required job applicants to submit to drug urinalysis as part of its preemployment physical examination. (Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d at pp. 1037–1039, 264 Cal.Rptr. 194.) The appellate court rejected the applicants' contention that the compelling interest test should apply to determine whether the publisher's invasion of their privacy interests was justified under article I, section 1. (Id., at pp. 1046–1052, 264 Cal.Rptr. 194.) Instead, the court fashioned and applied a lesser standard based on whether the challenged conduct was reasonable. (Id., at pp. 1047–1048, 264 Cal.Rptr. 194.) When setting this standard, the most persuasive factor for the Wilkinson court appears to have been that the plaintiffs were applicants for employment rather than employees. “Any individual who chooses to seek employment necessarilyalso chooses to disclose certain personal information to prospective employers, such as employment and educational history, and to allow the prospective employer to verify that information.” (Id., at p. 1048, 264 Cal.Rptr. 194.) This applicant-employee distinction was pivotal for the Wilkinson court. “Simply put, applicants for jobs ․ have a choice; they may consent to the limited invasion of their privacy resulting from the testing, or may decline both the test and the conditional offer of employment.” (Id., at p. 1049, 264 Cal.Rptr. 194.)
Our review of the ballot argument satisfies us that the voters did not intend to grant less privacy protection to job applicants than to employees. The ballot argument specifically refers to job applicants when it states that Californians “are required to report some information, regardless of our wishes for privacy or our belief that there is no public need for the information. Each time we ․ interview for a job, ․ a dossier is opened and an informational profile is sketched.” (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 7, 1972) p. 27, emphasis added; see Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d at p. 1041, 264 Cal.Rptr. 194.) Thus, the major underpinning of Wilkinson is suspect.
Appellate court decisions predating Wilkinson have also applied the compelling interest standard in cases involving job applicants. (See Central Valley Ch. 7th Step Foundation, Inc. v. Younger (1989) 214 Cal.App.3d 145, 151, 162–165, 262 Cal.Rptr. 496 [arrest records distributed to public employers]; Central Valley Chap. 7th Step Foundation v. Younger (1979) 95 Cal.App.3d 212, 237–240, 157 Cal.Rptr. 117 [arrest records distributed to public employers].) Target attempts to distinguish these cases as ones involving public, not private, employers, but that is a distinction without a difference in the context of the state constitutional right to privacy. (See Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at pp. 17–19, 267 Cal.Rptr. 618.) Private and public employers alike are bound by the terms of the privacy provisions of article I, section 1. (Id., at p. 19, 267 Cal.Rptr. 618; Semore v. Pool (1990) 217 Cal.App.3d 1087, 1093–1094, 266 Cal.Rptr. 280; see Rojo v. Kliger (1990) 52 Cal.3d 65, 89–90, 276 Cal.Rptr. 130, 801 P.2d 373; see also Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d at pp. 1040–1044, 264 Cal.Rptr. 194 [article I, section 1 limits private entities].)
The legislative history and the prior California law are sufficient to convince us that no distinction should be made between the privacy rights of job applicants and employees. Additionally, a close examination of the rationale of the Wilkinson decision provides yet another reason to depart from its ruling. Wilkinson relied, in part, on an analysis of a recent privacy case from the California Supreme Court. In Schmidt v. Superior Court (1989) 48 Cal.3d 370, 256 Cal.Rptr. 750, 769 P.2d 932, the high court upheld a rule limiting residence in a private mobilehome park to persons 25 years of age or older. (Id., at p. 391, 256 Cal.Rptr. 750, 769 P.2d 932.) Among the various challenges rejected were constitutional claims of violations of equal protection and of “familial privacy.” (Id., at pp. 388–390, 256 Cal.Rptr. 750, 769 P.2d 932; see Moore v. East Cleveland (1977) 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531.) When rejecting these contentions, the high court found that the age-based regulation was “neither irrational nor arbitrary or otherwise vulnerable to constitutional attack.” (Schmidt v. Superior Court, supra, 48 Cal.3d at p. 390, 256 Cal.Rptr. 750, 769 P.2d 932, fn. omitted.)
The Wilkinson court interpreted Schmidt to mean that, rather than requiring a showing of a compelling interest, an employer could justify its conduct if that conduct was reasonable. (See Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d at p. 1047, 264 Cal.Rptr. 194.) Wilkinson found that because Schmidt “did not explicitly articulate the legal principles or standards underlying its conclusion, we must infer those standards from its analysis.” (Ibid.) It went on to state that “Schmidt appears to hold that even if challenged conduct has some impact on the right of privacy, as long as that right is not substantially burdened or affected, justification by a compelling interest is not required. Instead, the operative question is whether the challenged conduct is reasonable.” (Ibid.)
We disagree with this interpretation of Schmidt, for a number of reasons. First, the interests at stake in Schmidt were property interests that might not be found to come within the privacy protection at all, while those at stake in Wilkinson and in the case at bar are more personal, involving what people ordinarily think of as coming within a zone of privacy. Second, the Wilkinson interpretation is at odds with the ballot argument that California voters endorsed when they adopted the privacy amendment. That argument states that a violation of the constitutional right to privacy can only be overcome by a compelling interest. (See Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 7, 1972) pp. 27–28; see also White v. Davis, supra, 13 Cal.3d at p. 775, 120 Cal.Rptr. 94, 533 P.2d 222; Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at p. 20, 267 Cal.Rptr. 618.) Third and most important, if the California Supreme Court intended Schmidt to constitute such a major change in the law, it surely would have articulated that change in an unmistakable manner. Schmidt provides us too slim a basis to ignore the accepted principle of existing law that a violation of the right to privacy may only be justified by a compelling interest. (See id., at p. 19, 267 Cal.Rptr. 618.)
Nevertheless, Target argues that this court has already embraced Wilkinson 's reasonableness standard and its distinction between applicants and employees. In Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d 1, 267 Cal.Rptr. 618, this Division held that an employer's termination of a computer operator who refused to submit to drug urinalysis constituted a violation of the employee's right to privacy. (Id., at pp. 15–24, 267 Cal.Rptr. 618.) In a footnote, we noted that Wilkinson applied the reasonableness test in a case involving a job applicant. (Id., at p. 20, fn. 13, 267 Cal.Rptr. 618.) We distinguished Wilkinson, stating that as the plaintiff in Luck was an “employee, rather than a job applicant, we are satisfied that the termination of her employment was a sufficient burden on her right to privacy to merit application of the compelling interest test.” (Ibid.) Target contends that this footnote constitutes an acceptance of Wilkinson 's reasonableness standard and an endorsement of a privacy distinction between job applicants and employees. We disagree. The cited language noted the holding in Wilkinson and found that case factually distinguishable; it did not embrace the Wilkinson analysis. As we found the compelling interest standard to apply to the employee before us in Luck, we were not required to consider—and did not determine—whether the same or a different standard would have applied had the plaintiff been a job applicant. (See, e.g., Luck v. Southern Pacific Transportation Co., supra, at p. 19, 267 Cal.Rptr. 618 [inconclusive footnotes cannot support legal conclusions].)
In conclusion, we are satisfied that any violation of the right to privacy of job applicants must be justified by a compelling interest. This conclusion is consistent with the voter's expression of intent when they amended article I, section 1 to make privacy an inalienable right and with subsequent decisions of the California Supreme Court. (See White v. Davis, supra, 13 Cal.3d at p. 775, 120 Cal.Rptr. 94, 533 P.2d 222; Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at p. 20, 267 Cal.Rptr. 618 [employee drug testing case]; see also Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen.Elec. (Nov. 7, 1972) pp. 27–28.)
3. Nexus Requirement
Soroka and the ACLU also argue that Target has not demonstrated that its Psychscreen questions are job-related—i.e., that they provide information relevant to the emotional stability of its SSO applicants. Having considered the religious belief and sexual orientation questions carefully, we find this contention equally persuasive.
Although the state right of privacy is broader than the federal right, California courts construing article I, section 1 have looked to federal precedents for guidance. (See, e.g., Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at pp. 21–23, 267 Cal.Rptr. 618.) Under the lower federal standard, employees may not be compelled to submit to a violation of their right to privacy unless a clear, direct nexus exists between the nature of the employee's duty and the nature of the violation. (Id., at p. 24, 267 Cal.Rptr. 618.) We are satisfied that this nexus requirement applies with even greater force under article I, section 1.
Again, we turn to the voter's interpretation of article I, section 1. The ballot argument—the only legislative history for the privacy amendment—specifically states that one purpose of the constitutional right to privacy is to prevent businesses “from collecting ․ unnecessary information about us․” (White v. Davis, supra, 13 Cal.3d at p. 774, 120 Cal.Rptr. 94, 533 P.2d 222, emphasis added; see Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d at p. 1040, 264 Cal.Rptr. 194.) It also asserts that the right to privacy would “preclude the collection of extraneous or frivolous information.” (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 7, 1972) p. 28, emphasis added.) Thus, the ballot language requires that the information collected be necessary to achieve the purpose for which the information has been gathered. This language convinces us that the voters intended that a nexus requirement apply.
The California Supreme Court has also recognized this nexus requirement. When it found that public employees could not be compelled to take a polygraph test, it criticized the questions asked as both highly personal and unrelated to any employment duties. (See Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937, 945, 227 Cal.Rptr. 90, 719 P.2d 660.) It found that a public employer may require its workers to answer some questions, but only those that specifically, directly and narrowly relate to the performance of the employee's official duties. (Id., at p. 947, 227 Cal.Rptr. 90, 719 P.2d 660.) This nexus requirement also finds support in the seminal case from our high court on the right to privacy, which characterizes as one of the principal mischiefs at which article I, section 1 was directed “the overbroad collection ․ of unnecessary personal information․” (White v. Davis, supra, 13 Cal.3d at p. 775, 120 Cal.Rptr. 94, 533 P.2d 222, emphasis added.) If the information Target seeks is not job-related, that collection is overbroad, and the information unnecessary.
Wilkinson attempted to address this nexus requirement but its conclusion is inconsistent with federal law, which affords less protection than that provided by the state constitutional privacy amendment. Wilkinson held that an employer has a legitimate interest in not hiring individuals whose drug abuse may render them unable to perform their job responsibilities in a satisfactory manner. (Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d at p. 1053, 264 Cal.Rptr. 194.) Federal courts have held that this sort of generalized justification is not sufficient to justify an infringement of an employee's Fourth Amendment rights. (See National Federation of Federal Employees v. Cheney (D.C.Cir.1989) 884 F.2d 603, 614, cert. den. 493 U.S. 1056, 110 S.Ct. 864, 107 L.Ed.2d 948; Harmon v. Thornburgh (D.C.Cir.1989) 878 F.2d 484, 490, cert. den. sub nom., Bell v. Thornburgh, 493 U.S. 1056, 110 S.Ct. 865, 107 L.Ed.2d 949; see also Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at p. 23, 267 Cal.Rptr. 618.) If this justification is insufficient to satisfy a lesser Fourth Amendment test, then it cannot pass muster under the more stringent compelling interest test. (See id., at p. 24, 267 Cal.Rptr. 618.)
4. Application of Law
Target concedes that the Psychscreen intrudes on the privacy interests of its job applicants. Having carefully considered Wilkinson, we find its reasoning unpersuasive. As it is inconsistent with both the legislative history of article I, section 1 and the case law interpreting that provision, we decline to follow it. Under the legislative history and case law, Target's intrusion into the privacy rights of its SSO applicants must be justified by a compelling interest to withstand constitutional scrutiny. Thus, the trial court abused its discretion by committing an error of law—applying the reasonableness test, rather than the compelling interest test.8
While Target unquestionably has an interest in employing emotionally stable persons to be SSO's, testing applicants about their religious beliefs and sexual orientation does not further this interest. (See Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at p. 23, 267 Cal.Rptr. 618.) To justify the invasion of privacy resulting from use of the Psychscreen, Target must demonstrate a compelling interest and must establish that the test serves a job-related purpose. In its opposition to Soroka's motion for preliminary injunction, Target made no showing that a person's religious beliefs or sexual orientation have any bearing on the emotional stability or on the ability to perform an SSO's job responsibilities. It did no more than to make generalized claims about the Psychscreen's relationship to emotional fitness and to assert that it has seen an overall improvement in SSO quality and performance since it implemented the Psychscreen. This is not sufficient to constitute a compelling interest, nor does it satisfy the nexus requirement. Therefore, Target's inquiry into the religious beliefs and sexual orientation of SSO applicants unjustifiably violates the state constitutional right to privacy.9 Soroka has established that he is likely to prevail on the merits of his constitutional claims.
B. Statutory Claims
Soroka also contends that he is likely to prevail on the merits of his statutory claims. He makes two statutory claims—one based on the Fair Employment and Housing Act (FEHA) and another based on the Labor Code. As we have already found that portions of the Psychscreen as administered to Target's SSO applicants violate the constitutional right to privacy, it is not necessary for us to address the statutory issues to resolve the question of whether the preliminary injunction should issue. However, for the benefit of the trial court at the later trial, we will address these statutory claims.
1. Fair Employment and Housing Act
Soroka contends that the trial court abused its discretion by concluding that he was unlikely to prevail on his FEHA claims. These claims are based on allegations that the questions require applicants to divulge information about their religious beliefs. In its ruling on Soroka's motion for summary adjudication, the trial court found that he did not establish that Target's hiring decisions were based on religious beliefs, nor that the questions asked in the Psychscreen were designed to reveal such beliefs.
In California, an employer may not refuse to hire a person on the basis of his or her religious beliefs. (Gov.Code, § 12940, subd. (a); see Gov.Code, § 12920.) Likewise, an employer is prohibited from making any non-job-related inquiry that expresses “directly or indirectly, any limitation, specification, or discrimination as to ․ religious creed․” (Gov.Code, § 12940, subd. (d).) FEHA guidelines provide that an employer may make any preemployment inquiry that does not discriminate on a basis enumerated in FEHA. However, inquiries that identify an individual on the basis of religious creed are unlawful unless pursuant to a permissible defense. (Cal.Code Regs., tit. 2, § 7287.3, subd. (b)(1); see Gov.Code, § 12920.) Job-relatedness is an affirmative defense. (See Cal.Code Regs., tit. 2, § 7286.7, subd. (c).) A means of selection that is facially neutral but that has an adverse impact on persons on the basis of religious creed is permissible only on a showing that the selection process is sufficiently related to an essential function of the job in question to warrant its use. (Id., § 7287.4, subd. (e); see Gov.Code, § 12920.)
The trial court committed an error of law when it found that questions such as “I feel sure that there is only one true religion,” “Everything is turning out just like the prophets of the Bible said it would,” and “I believe in the second coming of Christ” were not intended to reveal religious beliefs. Clearly, these questions were intended to—and did—inquire about the religious beliefs of Target's SSO applicants. As a matter of law, these questions constitute an inquiry that expresses a “specification [of a] religious creed.” (Gov.Code, § 12940, subd. (d).)
Once Soroka established a prima facie case of an impermissible inquiry, the burden of proof shifted to Target to demonstrate that the religious beliefs questions were job-related. (See Gov.Code, § 12940, subd. (d) [improper questions are not job-related]; Cal.Code Regs., tit. 2, §§ 7286.7, subd. (c), 7287.4, subd. (e); see also Evid.Code, § 500 [defendant has burden of proof of each fact essential to defense asserted].) As we have already determined, Target has not established that the Psychscreen's questions about religious beliefs have any bearing on that applicant's ability to perform an SSO's job responsibilities. (See pt. II.A.4., ante.) Therefore, Soroka has established the likelihood that he will prevail at trial on this statutory claim.10
2. Labor Code Sections 1101 and 1102
Soroka also argues that the trial court abused its discretion by concluding that he was unlikely to prevail on his claims based on sections 1101 and 1102 of the Labor Code. The trial court found that Soroka did not establish that the questions asked in the Psychscreen are designed to reveal an applicant's sexual orientation. It also found that Soroka did not establish that Target's hiring decisions are made on the basis of sexual orientation.
Under California law, employers are precluded from making, adopting or enforcing any policy that tends to control or direct the political activities or affiliations of employees. (Lab.Code, § 1101, subd. (b).) Employers are also prohibited from coercing, influencing, or attempting to coerce or influence employees to adopt or follow or refrain from adopting or following any particular line of political activity by threatening a loss of employment. (Id., § 1102.) These statutes have been held to protect applicants as well as employees. (Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 487, fn. 16, 156 Cal.Rptr. 14, 595 P.2d 592.)
Labor Code sections 1101 and 1102 protect an employee's fundamental right to engage in political activity without employer interference. (Gay Law Students Assn. v. Pacific Tel. & Tel. Co., supra, 24 Cal.3d at p. 487, 156 Cal.Rptr. 14, 595 P.2d 592.) The “struggle of the homosexual community for equal rights, particularly in the field of employment, must be recognized as a political activity.” (Id., at p. 488, 156 Cal.Rptr. 14, 595 P.2d 592.) These statutes also prohibit a private employer from discriminating against an employee on the basis of his or her sexual orientation. (See 69 Ops.Cal.Atty.Gen. 80, 82 (1986).)
The trial court committed an error of law when it determined that Psychscreen questions such as “I am very strongly attracted by members of my own sex” were not intended to reveal an applicant's sexual orientation. On its face, this question directly asks an applicant to reveal his or her sexual orientation. One of the five traits that Target uses the Psychscreen to determine is “socialization,” which it defines as “the extent to which an individual subscribes to traditional values and mores and feels an obligation to act in accordance with them.” Persons who identify themselves as homosexuals may be stigmatized as “willing to defy or violate” these norms, which may in turn result in an invalid test.
As a matter of law, this practice tends to discriminate against those who express a homosexual orientation. (See Lab.Code, § 1101.) It also constitutes an attempt to coerce an applicant to refrain from expressing a homosexual orientation by threat of loss of employment. (See id., § 1102.) Therefore, Soroka has established that he is likely to prevail at trial on this statutory basis, as well.11
C. Interim Harm
Although we have determined that Soroka is likely to prevail on the merits of his constitutional and statutory causes of action at trial, he has not yet established that he is entitled to a preliminary injunction. Faced with a motion for preliminary injunction, a trial court must consider more than the likelihood that the plaintiffs will prevail on the merits at trial. It must also weigh the interim harm to the plaintiffs if the injunction does not issue against the harm to the defendant if the injunction is granted. (Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d at p. 1039, 264 Cal.Rptr. 194.)
As the trial court concluded that Soroka did not satisfy the first factor of the preliminary injunction test, its order does not discuss interim harm to Soroka or harm to Target. On appeal, Soroka must establish both his likelihood of prevailing on the merits and interim harm to prove that the trial court erred by not issuing a preliminary injunction. (See Leach v. City of San Marcos (1989) 213 Cal.App.3d 648, 657, 261 Cal.Rptr. 805.) The interim harm aspect of the evaluation requires a balancing of the respective equities of both parties. (See Robbins v. Superior Court (1985) 38 Cal.3d 199, 206, 211 Cal.Rptr. 398, 695 P.2d 695.)
The interim harm that flows to applicants for SSO positions at Target is clear. The Psychscreen's religious belief and sexual orientation inquiries violate the state constitutional right to privacy and other statutory rights. To continue to allow Target to use the Psychscreen to test its applicants when Soroka has already established a likelihood that he will prevail at trial on these causes of action constitutes a significant interim harm. Absent injunctive relief, plaintiffs will be left with the choice of giving up supposedly inalienable privacy rights or foregoing the possibility of employment at Target. (See, e.g., Robbins v. Superior Court, supra, 38 Cal.3d at p. 207, 211 Cal.Rptr. 398, 695 P.2d 695.) By contrast, the perceived harm to Target from being denied the right to test its applicants using the Psychscreen is “minimal and speculative.” (See ibid.) The preliminary injunction would only limit Target's use of the Psychscreen in its present form and only during the pendency of the trial. If, as appears likely, Soroka prevails at trial, Target will be prohibited from using the Psychscreen on a permanent basis. In this situation, the harm to Target appears to be even less significant. In either event, Target is free to use other, legally proper methods to determine the emotional stability of its SSO applicants. As Soroka has demonstrated both that he is likely to prevail at trial on the merits of his constitutional and statutory claims and that the balancing of harms falls in his favor, we find that the trial court erred in denying his motion for preliminary injunction.
III. CLASS CERTIFICATION **
Target's preemployment requirement of psychological screening violates both the constitutional right to privacy and statutory prohibitions against improper preemployment inquires and discriminatory conduct by inquiring into its applicants' religious beliefs and sexual orientation. At trial, Soroka is likely to prevail on the merits of his complaint. The interim harm to Soroka and others if the preliminary injunction does not issue outweighs the harm to Target from being precluded from giving the Psychscreen in its present form during the pendency of this litigation.
The order denying the preliminary injunction is reversed. The order denying Soroka's motion for class certification and granting Target's motion to deny class certification is remanded to the trial court for further proceedings in accordance with this opinion. Target shall bear all costs on appeal, the amount of which shall be fixed by the trial court. (Cal.Rules of Court, rule 26(a).)
1. For convenience, the opinion refers to all three appellants as “Soroka.”
2. These are appealable orders. (See Code Civ.Proc., § 904.1, subd. (f) [order refusing to grant injunction]; Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470, 174 Cal.Rptr. 515, 629 P.2d 23 [trial court decision denying certification to entire class is appealable order]; Guenter v. Lomas & Nettleton Co. (1983) 140 Cal.App.3d 460, 464–466, 189 Cal.Rptr. 470 [class certification denied]; Morrissey v. City and County of San Francisco (1977) 75 Cal.App.3d 903, 907, 142 Cal.Rptr. 527 [class certification denied]; see also 4 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 224, p. 273; 9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, §§ 52, 85, pp. 75, 106–107.)
3. For convenience, the opinion refers to Dayton Hudson Corporation, doing business as Target Stores, as “Target.”
4. We view the duties and responsibilities of these public safety personnel to be substantially different from those of store security officers.
5. Soroka challenges many different types of questions on appeal. However, we do not find it necessary to consider questions other than those relating to religious beliefs and sexual orientation.
6. The trial court did find that the test was being administered unnecessarily to some applicants and was thus unreasonable as to those persons. The court issued a partial preliminary injunction prohibiting Target from giving the test to those applicants whom Target had decided did not pass a pretest threshold in the hiring process.
7. This court has considered two related writs in this case. In November 1990, Soroka sought a writ of mandate to vacate the trial court's order denying its motion for summary adjudication. (Case No. A051763.) In December 1990, he sought a writ of mandate to review the trial court's denial of his motions for preliminary injunction and class certification, and granting of Target's motion to deny class certification. (Case No. A052040.) Both petitions for writs of mandate were denied without opinion. The denials were not on the merits and thus are not res judicata on the questions presented on appeal. (See People v. Medina (1972) 6 Cal.3d 484, 491, fn. 6, 99 Cal.Rptr. 630, 492 P.2d 686; People v. Venghiattis (1986) 185 Cal.App.3d 326, 329, fn. 3, 229 Cal.Rptr. 636.)
8. We note that the trial court, faced with a single appellate case setting out the standard to be applied to a privacy violation alleged by a job applicant, did what it had to do—it applied that case. Trial courts must accept the law as declared by appellate courts. It is not a trial court's function to attempt to overrule decisions of a higher court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) However, as an appellate court, we are not compelled to apply the law as interpreted by a court of equivalent jurisdiction if we find that court's reasoning unpersuasive.
9. In light of this ruling, we need not address the question of whether the means chosen to achieve a compelling interest must be the least intrusive means. (See, e.g., Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at p. 24, fn. 15, 267 Cal.Rptr. 618.)
10. Soroka also challenges questions relating to physical handicaps or conditions. As we find that use of the Psychscreen violates FEHA regulations against questioning about an applicant's religious beliefs, we need not address these additional claims of error.
11. In light of this ruling, it is unnecessary for us to consider whether the FEHA and Labor Code violations also constitute an unfair business practice. (See Bus. & Prof.Code, § 17200.)
FOOTNOTE. See footnote *, ante.
REARDON, Associate Justice.
POCHE, Acting P.J., and PERLEY, J., concur.