SUR PETITION FOR PANEL REHEARING WITH SUGGESTION FOR REHEARING IN BANC
July 6, 1992.
Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO and ROTH, Circuit Judges.The petition for rehearing filed by Appellant, having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges in active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is DENIED.
Judges Greenberg, Hutchinson, Nygaard and Alito would grant rehearing.
STATEMENT SUR DENIAL OF REHEARING IN BANC
HUTCHINSON, Circuit Judge.I respectfully dissent from the order denying rehearing in banc for the following reasons. In this diversity case, it is our duty to follow the substantive decisions of the highest court of the forum state, much as we are duty bound to follow the decisions of the Supreme Court of the United States. I believe the Court’s conclusion that the Supreme Court of Pennsylvania would create a public policy exception to the employment-at-will doctrine in favor of private sector employees who refuse random drug tests is contrary to the decisional *627law of that state’s highest court on employment at will. The Court concedes that the public policy on which it relies is not expressed in either the Pennsylvania Constitution, Pennsylvania’s statutory law or in existing Pennsylvania Supreme Court or Superior Court decisions concerning employment at will. This is a diversity case. Therefore, this Court is bound by state law. Judicial notions of public policy are no substitute for law. I am therefore unable to reconcile the Court’s opinion with the requirement that federal courts follow state law in deciding diversity cases. See Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
Pennsylvania case law demonstrates strict adherence to the doctrine of employment at will despite occasional dictum that there may exist undefined but narrow exceptions to that doctrine. Indeed, the Supreme Court of Pennsylvania has only recently reiterated its view that any public policy exception to the employment-at-will doctrine is extremely narrow. See Paul v. Lankenau Hosp., 524 Pa. 90, 569 A.2d 346, 348-49 (1990). Its statement to that effect leads me to believe that specific exceptions should be created and defined by the Supreme Court of Pennsylvania. Until that court does so, I do not believe it is appropriate for a federal court to create an exception as important as the one announced here on a questionable analogy to the tortious invasion of privacy. That an employer may be liable in tort for invasion of privacy is not a basis for making it liable for wrongful discharge. The abstract existence of an action for invasion of privacy does not demonstrate that Pennsylvania would treat random drug testing in the private workplace as an invasion of privacy.
I see no indication anywhere in Pennsylvania’s decisional law from which a strong policy favoring employee privacy over random drug testing could be inferred in the context of employment at will. No Pennsylvania court has even considered whether an employer’s tortious invasion of an employee-at-will’s privacy precludes discharge.
The decision of the United States District Court for the Western District of Pennsylvania in Rogers v. International Bus. Machines Corp., 500 F.Supp. 867 (W.D.Pa.1980), relied on by the Court is not to the contrary. There, an at-will employee was discharged because his relationship with a subordinate employee exceeded normal or reasonable business associations and the employee’s conduct negatively affected the duties of his employment. On the wrongful discharge claim, the court rejected Rogers’ argument that:
IBM’s decision to terminate was improper because it was predicated on an investigation of a personal matter in which the Company had no legitimate interest and therefore invaded his right of privacy.
Id. at 869. It said:
[A]n employer has a legitimate interest in “preserving harmony among its employees and in preserving its normal operational procedures from disruption.”
Id. (quoting Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974)). I believe an employer has an unquestionably legitimate interest in monitoring and investigating its employees’ use of illegal drugs.
I also believe that the Court gives an overly narrow reading to Hershberger v. Jersey Shore Steel Co., 394 Pa.Super. 363, 575 A.2d 944 (1990), the case that is most analogous to the one before us. There, Hershberger argued that a public policy exists in Pennsylvania that precluding discharge of an employee who tests positively for illegal drugs unless drug use is confirmed by a second test. The Superior Court held that public policy did not provide a reason to recognize a cause of action for wrongful discharge based on positive results in a drug screening test that were not confirmed by a second testing procedure. Id. at 947. Hershberger relied on pending state legislation concerning confirmatory drug tests and federal and state decisions outside of Pennsylvania condemning the use of unreliable testing procedures. Id. at 947 & nn. 1 & 2. The state court nevertheless held, after considering the decisions from sister courts, that the pending legislation did not establish a “ ‘clear’ mandate” strong enough to permit a common law court to create a cause of action for wrongful discharge by an employee at will.
Though Hershberger did not consider whether the public policy against invasion *628of privacy precluded an employer from discharging an employee at will who tested positive for drugs, it did emphasize the necessity for a clear, strong expression of public policy before it would be appropriate to create a cause of action for wrongful discharge in the face of the Supreme Court of Pennsylvania’s strict adherence to the doctrine of employment-at-will. I do not believe any such clear strong policy has been demonstrated here. Indeed, one might argue that there is a policy in favor of a drug-free workplace that is at least as strong as the right of privacy involved in random drug testing of private employees. Absent any federal or state constitutional or statutory prohibition against such testing, it seems to me it is the task of the Supreme Court of Pennsylvania, not this Court, in regulating employment practices within that state and to decide what relative strength these two competing public policies have.
The Supreme Court of Pennsylvania has historically been a strict enforcer of the right of an employer to discharge an employee at will for any reason, or no reason at all. It has recently restated its adherence to that view. Its insistence on the narrowness of any hypothetical exception to that right and the fact that no Pennsylvania case has granted relief from wrongful discharge to an employee at will convinces me that the Court’s decision in this case that a private employee at will who is discharged for refusing a random drug test has a state cause of action for wrongful discharge because the test violated a public policy in favor of privacy that is not found in either federal or state constitutional law, federal or state statutory law or any decision of a Pennsylvania state court conflicts with Erie. Similarly, this Court’s ability to “envision at least two ways in which an employer’s urinalysis program might intrude upon an employee’s seclusion,” Op. at 622, does not, in my judgment, demonstrate the kind of strong public policy that permits us to overlook Pennsylvania’s strong adherence to the doctrine of employment at will. Accordingly, I would grant the petition for rehearing in banc. Judges Greenberg and Alito join in this statement.