Posted on 01/27/2005 12:32:27 PM PST by proud American in Canada
I've been thinking quite a bit about the Weyco case and wondering if something can be done.
Clearly, as a private employer, the employer did nothing unconstitutional in precluding smokers from working for him. But is there some other recourse for the employees who face the loss of their jobs?
I think these people have a good argument that they are protected by the Americans With Disabilities Act, that the employer has discriminated against them on the basis of a disability, an addiction to cigarettes and/or nicotine.
Not only would I like to see these people not lose their jobs at the hands of a busybody control freak ;), I am worried that this case sets a horrible precedent if it is allowed to stand. What's next? Not allowing alcohol? Not allowing dangerous sports? Requiring DNA testing for genetic cancer risk?
So, here's a rough legal argument (I just wrote this up). I would love your input.
1. Is addiction to tobacco/nicotine a disability similar to the disability of an addiction to alcohol or the use of illegal drugs?
An addiction to alcohol and the use of illegal drugs are considered a disability under the ADA. Can smoking be likened to the use of such substances such that it could qualify as a disability under Section 104?
Alcoholism and the use of illegal drugs are considered a disability when the individual (1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use; (2) is participating in a supervised rehabilitation program and is no longer engaging in such use.
The difficulty with this section is that it requires that the person must be abstaining from alcohol or drugs and to be enrolled in a treatment program. Such a requirement in the case of smoking would be the equivalent of this employer's current policy--that they must quit.
However, smoking can be distinguished from these two substances such that, if this section is used, it can be argued that it is not necessary that smokers quit.
Alcohol and drugs are mind-altering central nervous system depressants, the use of which impairs mental functioning. Nicotine is a stimulant and does not impair mental functioning; indeed, smokers claim it improves the clarity of their thinking.
Even if some illegal drugs are stimulants and might conceivably enhance cognitive functioning, these drugs are illegal. Tobacco and nicotine are legal substances.
2. If Section 104 cannot apply, is an addiction to smoking a disability on its own?
A disability is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual."
So, given that smokers are in full possession of their mental capabilities, is an addiction to tobacco a physical or mental impairment that substantially limits one or more of the major life activities of a smoker?
I think a strong case can be made that it is both a mental and a physical impairment that does substantially limit major life activities.
As an addiction to tobacco exerts a powerful physical and psychological hold on smokers, despite overwhelming evidence of the immediate and cumulative adverse health effects of smoking (see, for example, from http://www.health.gov.sk.ca/rr_smoking_effects.html (an official Saskatchewan website).
Smoking is a physical impairment, both in the short term and in the long term.
Tobacco use results an immediate risk of a range of health problems, increased cough, phlegm, and wheezing, reduced lung function and a worsening of problems from asthma. As a result, their major life activities may be substantially limited. Their reduced respiratory capacity results in a lesser ability to participate in physical activities and sports. Furthermore, male smokers face a much greater risk of impotence than non-smoking males; certainly sexual activity is a "major life activity."
Furthermore, if people continue to smoke, it is well-documented that they face a higher risk of premature deaths due to cancers, cardiovascular disease, and respiratory illnesses. Though the following may sound flip, I don't mean it that way--but remaining alive is a "major life activity." However it is clearly documented that in general, smoking "substantially limits" a person's ability to live out a healthy life span.
Smoking is also a mental impairment that substantially limits a major life activity, as it substantially limits the ability to quit an addiction to tobacco.
Despite the overwhelming evidence of ill effects, many smokers cannot stop smoking even when they desperately wish to do so. Tobacco creates a physical and mental dependency that experts state are much stronger than is created by other drugs. Most former addicts say that it is much harder to give up nicotine than alcohol, cocaine and even heroin.
2. Did the employer discriminate?
(I think it is a covered employer--but even if it is not, I'm just putting this argument out there to debate its merits).
The general rule is that "no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."
"Discriminate" means "utilizing standards, criteria, or methods of administration ... that have the effect of discrimination on the basis of disability."
The company instituted mandatory testing of employees that had the effect of discriminating them based on smoking, resulting in their ultimate discharge.
Discrimination is also effected by "denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability... and "using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual"
The company first barred smokers from being hired in 2003. Presumably he turned away "otherwise qualified individuals" merely because of their disability. Furthermore, the qualification standard of nonsmoking screened out smokers.
3. Reasonable accommodation
Finally, not making reasonable accommodations to an employee's disability is a form of discrimination unless the accommodation would impose an undue hardship on the operation of the business.
Here, the employer could accommodate the employee's disability by requiring a nicotine patch during the day, if the employee cannot go all 8 hours without smoking. Such an accommodation is reasonable. In fact, it is beneficial to the employee's health (far safer than cigarettes, which have lots of other cancer-causing substances in them) and might assist the employee's recovery. It is certainly not a hardship because the patch is unnoticed by others, does not interfere with the employee's functioning (and might enhance it), and the employee would be paying for it.
"Employment-at-will is a right."
"???????? I'm not sure I understand what you mean.
Employment, of any kind, is not a right. No one HAS to hire you for ANY type of job"
Employment-at-will means that employers can hire and fire as they will, for any reason or no reason at all, and that employees are free to accept jobs or leave jobs for any reason at all. It does not mean that an employer has to hire you.
Under the Common Law, we've always accepted that employers have employment-at-will rights, unless a contract says otherwise.
But like any other right, employment-at-will can be abused.
And when it is abused, that provokes a reaction.
Like this case we're talking about here.
The source is http://www.ada.gov
the specific text is at http://www.usdoj.gov/crt/ada/taman2.html#II-3.12000
II-3.11000 Retaliation or coercion. Individuals who exercise their rights under the ADA, or assist others in exercising their rights, are protected from retaliation. The prohibition against retaliation or coercion applies broadly to any individual or entity that seeks to prevent an individual from exercising his or her rights or to retaliate against him or her for having exercised those rights. Any form of retaliation or coercion, including threats, intimidation, or interference, is prohibited if it interferes with the exercise of rights under the Act.
ILLUSTRATION 1: A, a private individual, harasses X, an individual with cerebral palsy, in an effort to prevent X from attending a concert in a State park. A has violated the ADA.
ILLUSTRATION 2: A State tax official delays a tax refund for M, because M testified in a title II grievance proceeding involving the inaccessibility of the tax information office. The State has illegally retaliated against M in violation of title II.
II-3.12000 Smoking. A public entity may prohibit smoking, or may impose restrictions on smoking, in its facilities.
II-4.0000 EMPLOYMENT
Regulatory references: 28 CFR 35.140.
II-4.1000 General. Beginning January 26, 1992, title II prohibits all public entities, regardless of size of workforce, from discriminating in their employment practices against qualified individuals with disabilities.
=end=
There is also this about employment from : http://www.ada.gov/q%26aeng02.htm
Q. Who is protected from employment discrimination?
A. Employment discrimination is prohibited against "qualified individuals with disabilities." This includes applicants for employment and employees. An individual is considered to have a "disability" if s/he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Persons discriminated against because they have a known association or relationship with an individual with a disability also are protected.
The first part of the definition makes clear that the ADA applies to persons who have impairments and that these must substantially limit major life activities such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. An individual with epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual impairment, mental retardation, or a specific learning disability is covered, but an individual with a minor, nonchronic condition of short duration, such as a sprain, broken limb, or the flu, generally would not be covered.
The second part of the definition protecting individuals with a record of a disability would cover, for example, a person who has recovered from cancer or mental illness.
The third part of the definition protects individuals who are regarded as having a substantially limiting impairment, even though they may not have such an impairment. For example, this provision would protect a qualified individual with a severe facial disfigurement from being denied employment because an employer feared the "negative reactions" of customers or co-workers.
Q. Who is a "qualified individual with a disability?"
A. A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the oeessential functionsî of the position with or without reasonable accommodation. Requiring the ability to perform "essential" functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job.
Q. Does an employer have to give preference to a qualified applicant with a disability over other applicants?
A. No. An employer is free to select the most qualified applicant available and to make decisions based on reasons unrelated to a disability. For example, suppose two persons apply for a job as a typist and an essential function of the job is to type 75 words per minute accurately. One applicant, an individual with a disability, who is provided with a reasonable accommodation for a typing test, types 50 words per minute; the other applicant who has no disability accurately types 75 words per minute. The employer can hire the applicant with the higher typing speed, if typing speed is needed for successful performance of the job.
=end-=
I would submit that if you wanted to make the argument, the smoker is the same as the person with a facial disfigurment or mental illness. JUST AN ARGUMENT I AM NOT SAYING SMOKERS ARE MENTALLY ILL.
Hope this helps.
actually the ADA provides for lawyer fees. (aka LOOSER PAYS)
The plaintiffs only need prove one itsy bitsy part of their claim and POW instant Lawyer fees.
HOWEVER under the ADA they can't be monetarily rewarded outside of lost wages and getting their jobs back.
There seems to be a developing shortage of guts in this country.
Actually, you are.
Remember, the Common Law, which we so often praise, has never been primarily made by legislatures but by judges applying general principles of law to a specific case.
Applying general principles meant to fill in gaps should not extend to creating entirely new causes of action that didn't previously exist.
Among those 21 states that don't have specific laws protecting private life from employer intrusion, there probably will be some that pass such laws based on this particular incident, if it continues to get press coverage and other employers follow suit.
Fine -- then pass a law. But encouraging judges to invent new causes of action -- effectively usurping the role of legislatures that you acknowledge are perfectly capable of passing such laws themselves -- is hardly "conservative". It's the exact type of judicial activism conservatives usually condemn.
What I am doing is trying to figure out a reasonable conservative response to something outrageous that an employer has done that has Michigan all abuzz, and has now hit the national airwaves as well.
How is it a conservative response to have the government intervene in employment decisions made by private employers with their own employees? Because what you're basically saying is that private employers should not be permitted to consider smoking when making employment decisions, and that the government can blast them if they do.
As for general laws that don't permit employers to interfere in "private lives", you might want to think carefully about that. Do you think an employer should have the right to terminate a receptionist who is a cross-dressing, transsexual stripper in his/her "off hours", particularly when that fact becomes known to customers, vendors, and clients?
How about someone who publicly advocates the goals of NAMBLA? Do you think an employer should be able to terminate an employee for those actions, even if they only occur "off the clock"?
Or how 'bout an employee who is the local Grand Wizard of the KKK -- again, only in his "off hours"? Do you think an employer should have the right to decide he doesn't want to employ such an individual?
The best check on employer excesses is the market, not overly broad new legislation that always has negative and unanticipated consequences.
If I read this correctly, this gentleman is wanting to control what his employees do in their own homes. If he is going after smokers and fatties, it seems to me he should also go after every other vice that his employees might have, i.e., dangerous sexual behavior(s). Sounds like he wants to play Big Brother with the Big Eye watching his employees' every move. Scary.
SMOKERS would fail both criteria of this one paragraph a) by not having completed a rehab program nor b) being no longer engaged in the use of tobacco - so, IMO, the application of the ADA to smokers would be a far stretch....
I agree with no new laws! We have more than enough as it is!!
I'm looking for the U.S. case that you mentioned, but here is some (very) distant precedent.
I think these Weyco employees just might have a case.
From http://www.emond-harnden.com/jul00/comincosn.html
Nicotine addiction is a disability, British Columbia arbitrator rules
Employers wishing to ban employee smoking may now have to consider whether tough anti-smoking rules discriminate against heavy smokers, and if so, what forms of accommodation will be required. This may be the fallout from a ruling by a British Columbia arbitrator in Cominco Ltd. V. U.S.W.A. Local 9705 (February 29, 2000).
At issue in the case was the union's grievance against the company's policy prohibiting the use or possession of tobacco in any form on the company's property, indoors and outdoors, including parking lots and private vehicles, and in company vehicles on or off company property. The property at issue was a lead and zinc smelting complex occupying some 450 acres.
The union conceded that smoking was a hazardous activity, but objected to the policy on two grounds. First, it argued that smoking was a personal right of employees, and by seeking to regulate it to such an extent, the company was in effect attempting to dictate the personal habits of its employees.
Second, the union contended that nicotine addiction and the effects of nicotine withdrawal were disabilities under human rights legislation and that the policy discriminated against addicted workers, who faced the ultimate sanction of discharge for non-compliance. Accordingly, the union argued, the company was obliged to accommodate addicted smokers by permitting them to smoke outdoors in areas where exhaled smoke would not have an impact on other employees.
The company asserted that there were good business reasons to justify the policy and, in any event, employees had no personal right to smoke. There was, therefore, no legal basis to compel the company to permit smoking on its property.
NICOTINE ADDICTION A DISABILITY IN LAW
A key issue to resolve was the ability of addicted smokers to, in the arbitrator's words, "leave [their] addiction at the plant gate". Many of the workers involved worked 12-hour shifts, which heightened concern over the ability of the heaviest smokers to complete a shift without cigarettes. Despite the fact that each side produced expert witnesses to back its view, the arbitrator found there was a consensus that heavily addicted smokers would likely be unable to cope, and that even less heavily addicted smokers could be expected to experience severe withdrawal symptoms sufficient to impair their productivity.
The arbitrator rejected the union's first ground of objection to the policy, and held both that the company had a legitimate business interest in banning smoking on its premises and that employees had no right to require the company to permit them to smoke while at work. However, this left open the question of those heavily addicted smokers who would be adversely affected by the ban. The arbitrator therefore turned to the question of whether the ban was discriminatory under human rights law.
This question in turn hinged on whether or not nicotine addiction constituted a "disability" under that same law. The employer argued it was not, as it is a temporary condition that can be voluntarily overcome and does not interfere with a person's effective physical or psychological functioning.
The arbitrator disagreed. He rejected the notion that disability should be determined by reference to whether the condition is temporary or permanent, holding that the relevant issue was the degree to which normal function is impaired. He pointed out that drug addiction and alcoholism, both of which are viewed as disabilities in human rights law, are "no less ephemeral than an addiction to tobacco".
As for the addicted person's ability to function, the arbitrator conceded that, compared to those suffering drug and alcohol addiction, addicted smokers were able to function reasonably well. However, smokers suffered long-term health effects resulting in illness and absenteeism. Further, when one considers the effects of withdrawal on an addicted person, the "distinction between nicotine addiction and other forms of addiction becomes almost non-existent". Therefore, the arbitrator held,
"[I]n its chronic stages where persons experience severe symptoms of withdrawal or they actually contract disease or illness or otherwise suffer significant impairment of function, [nicotine-addicted persons] fall precisely within the class of persons entitled to protection, which is to say, persons who suffer from a physical or mental disability."
ACCOMODATION
While the smoking ban was enforced through a range of disciplinary measures that were of concern to the arbitrator, it was also true that the company had provided an addiction management program, nicotine replacement therapy and, where necessary, ongoing counselling. The union disputed that these measures discharged the company's duty to accommodate and suggested that the only suitable accommodation was to permit smoking in an outside area.
The arbitrator did not decide this issue, but instead referred the matter to the parties for further discussion as to how addicted smokers were to be accommodated, and reserved jurisdiction to decide the issue in the event the parties could not agree.
Thank you for that link!
Please see #115--in British Columbia, tobacco addiction is considered a disability that must be accommodated.
I think these employees have a solid ADA claim.
Of course smoking isn't work related. My point was that if the employer has the right prohibit anything known to be a health risk, where does it become intrusive.
Draconian work rules and conditions contribute greatly to job related stress, and could actually increase medical insurance rates due to more claims.
P.S. I am a non-smoker, so this is not about smoker's rights. It is about the extent to which employers can intrude on employees private lives.
"The bottom line is that while I think someone may try to make this argument one day, it ultimately will fail in the federal courts. Particularly since the Supreme Court has restricted coverage of the ADA almost every time it has been given the opportunity to do so."
Thank you for your informed posts.
You're correct. I'm not sure I would call it a right but you are correct in that it has been the assumption for the rememberable past.
I'm a non-smoker too.
Yesterday some called me a liberal because I was wondering if the ADA could cover this. In my defense, let me say, I didn't write the law and I think it places burdens on employers and increases their costs.
As a lawyer, I saw people who, in my opinion, were being treated unfairly by a situation that sets a bad precedent. And so I was just trying to think of ways to help them, using laws that are on the books.
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