Could the Americans With Disabilities Act prevent Weyco from firing smokers? (vanity)

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).

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.

(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.

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.

"Sorry, proud, this cretin can certainly, legally, fire any employee for things done in their off time if it's against company policy."

For the moment.
The problem is that this sort of power "exists" until someone really tries to use it and that becomes known.

Then the democracy or the judiciary make sure that nobody else can, legally, fire employees for, say, smoking in their off time whether it's against company policy or not, without a compelling reason.

Folks who are standing up for this employer are just begging for government regulators and courts to step in here and hammer down another hard, fast, expensive rule limiting employers.

Employment-at-will is a right. Any right can be abused. Firing smokers for smoking off duty in their own homes, or heavy people, is an abuse of that right. Now that it has the public's attention, there will be litigation and legislation, and ilico presto, we'll discover that no, the employer really DIDN'T have the right to do that.

It would be a great deal easier, and better for everyone, if this employer were urged to back down and stop this NOW, before we start getting court decisions and government mandates that take away more than just employers' ability to fire smokers and the overweight. Once lawmaking crashes into gear, things generally don't turn out very well.

All that can be avoided if business will agree, as a common-sense principle, that employment-at-will just doesn't go this far, that what this guy has done is an abuse.

Unfortunately, I see that there are folks who want to defend this.
So, we're going to end up with regulation, and judicial fiats, that create all sorts of new liabilities for employers.

There is a time when the wise back down.
And this is it, on this issue.

I've been look for the 29 states that have what's called "Lifestyle Rights Laws" which protect against discriminating against smokers.

Below are two articles showing examples of the growing trend by
employers refusing to hire smokers. Hopefully, from these clear
cases of discrimination, the states not already protected will prompt
state legislatures to adopt "lifestyle" (smokers rights) statutes
too.

First, employer discrimination against smokers in Michigan is causing
anger among employment lawyers.

"To have an employer monitor legal behavior is going over a line that
we just can't cross. It's going toward that Big Brother mentality
that we just need to stay away from," asserted Joni Thome, an
employment attorney at Halunen & Associates in Minneapolis who hopes
the recent Michigan policy prompts state legislatures to adopt
lifestyle statutes.

Michigan is one of 21 states that do not have such laws. Others
include California, Florida, Ohio and Texas.

The 29 states that do have smokers' rights statutes, also known
as "lifestyle rights laws," which prohibit employers from
discriminating against smokers are Maine, New Hampshire, Connecticut,
Rhode Island, New York, New Jersey, West Virginia, Virginia, North
Carolina, South Carolina, Louisiana, Mississippi, Tennessee,
Kentucky, Indiana, Illinois, Wisconsin, Minnesota, Missouri,
Oklahoma, South Dakota, North Dakota, Wyoming, Colorado, New Mexico,
Arizona, Nevada and Oregon.

          # # #

Also, in Florida the police departments in Bayonet Point, Dade City,
Port Richey, Zephyrhills, Brandon, Plant City, Tampa and Ybor City
will no longer hire smokers.
"Hillsborough County Sheriff David Gee and Pasco County Sheriff Bob
White won't hire people who are smokers, cigar users or tobacco
chewers, even if they only indulge when off-duty. Sworn deputies
already on the force will be encouraged to toss their Marlboros and
Camels whenever on duty and in public."

"In this particular case, the employees were already working there, then the employer changed the policy."

Well, I sure wouldn't do it that way, because it's bad for morale. I would think that applying it to new hires would be a wiser choice from a business standpoint. However, I've never seen any law keeping a company from having stupid policies, only those that discriminate based on a very small set of criteria.

"But the broader answer to your question is "democracy".

When I peruse the Bill of Rights, "employment-at-will" and "unregulated labor markets" do not appear there.

And they aren't going to appear there."

The Bill of Rights also doesn't include the right to employment. A socialist country might include such a right, but the US constitution does not provide such a right.

"An employer does not have the right to intrude into people's legal activities in private, on their own property, during their off-duty hours, because he does not pay the employee for 24 hours of his time. The employer pays for 8 hours of time. And for that he gets 8 hours of control, not 24. Labor is a commodity. Another commodity is lumber. If I buy 8 tons of lumber for paper, I do not have the right to take 24 tons off the lumber truck and pay eight for it."

I agree for the most part. However, your actions outside of work can reflect on the company for which you work. There's a lot of things that fall into the realm of legal but socially unacceptable that can make it so that a company does not want their name associated with yours. I don't believe that smoking falls into this category. But I think it's an important point.

Smoking has an effect on the company you work for through the health benefits they provide as well as disability insurance and life insurance. The costs of those benefits is a substantial portion of what it costs a business to employ someone, and those costs are significantly higher for a smoker than a non-smoker.

If your actions away from work don't effect your employer, they should stay out of your business. If your actions outside of work to start to effect your employer, then it becomes their business.

"And with labor, it is particularly stupid to try, because workers are also voters. Nobody likes to have a boss, but we all serve someone. That's the way it is. Generally, employers are reasonable and fair. When they are not, and sometimes they are not...well, that's when new labor laws and regulations start cropping up."

What is reasonable and fair from the point of view of the employer and what if perceived as reasonable and fair by employees often differs significantly.

This employer apparently feels that it is fair to not have their company burdened by the higher expenses that result from people smoking. You apparently disagree, and feel that the employees right to do what they want outside of work outweighs the employer's right to choose employees based on the costs to the company to employ them.

Who's right? Personally, I think the government should stay out of it. Government intervention rarely makes such situations better.

"Example: sexual harassment law. Now, time was when "employment at will" meant that if you wanted to work for my company, you had to put up with my crude sexual comments and innuendoes and come-ons all damned day. Because I had free speech, and you had no right to work for me. Therefore, I had the right to sexually harass you. That's unregulated free speech. And it didn't survive. Because when it comes right down to it, people will use their democratic power to limit free speech and nail sexually harassing employers to a cross. Democracy has more power than vague concepts like "it's my company, so I can do what I want". No, you can't. We can, in fact, regulate the hell out of you. We have. And we will again too, every time you go over the top and start pretending that you are a noble lord."

With sexual harassment, sexual discrimination, racial discrimination, and such actions there's no basis in job performance or employment costs to justify the action.

With smoking, there is a cost to the employer involved.

Maybe the employer could reach an agreement with the employee to deduct the difference in costs for the benefits for a smoker from the employee's paycheck. That removes the biggest issue that I see.

I kind of like that idea personally because it requires people to assume the responsibility for the effects of their own actions. However, it's likely easier for the company to just have one policy, and they may be able to get better insurance rates by eliminating smokers from the plan entirely.

"Employers and folks with capital sometimes get it into their heads that their status OUGHT TO make them noble lords, able to demand whatever they want from their employees. And "employment-at-will" doctrine will protect them."

Sometimes, but usually it's just that the employee sees issues from a different point of view. Businessmen with capital take considerable risks in the hopes of earning money. Look at most any company and you'll find that they've made a number of missteps that have cost them considerable amounts of money, and those who invested the capital usually pay the highest price when things go badly.

They're trying to make money. They hire you because they are paying you with the intent that your actions will profit them. If you're not efficient, or your actions outside work cost them money, it's money out of their pockets.

If you're really good at what you do, they should pay you well because you make them money. If they don't pay you well, you should work somewhere else where someone realizes your value to them.

In my experience the vast majority of bad business decisions made by upper management are made because of foolishness or being poorly informed. Very few are actually made out of malice or a feeling of superiority.

It hasn't always seemed that way at the time, but I've been with the company long enough and heard stories of different situations from many different points of view, and learned that incompetence far outranks malice or even greed as the biggest reason for bad decisions.

I think in this case the employer doesn't realize how many good employees they are going to lose due to this policy and how it's being implemented. They'll lose not only the smokers they pushing out the door, but other employees that are unhappy with how their coworkers are being treated.

They should look for a way to pass on the costs of smoking onto the employees, and then stay out of those people's personal business.

If they want to ban smoking on company property, I think that they have the right to do so.

Now that folks are losing their jobs over this and it has national attention, that may change. Abuse of rights and privileges can go on for a long time, until folks begin to stand up and assert their power.

We may not be headed for the confrontation on this, yet, but this Michigan case is the first baldfaced example that has ever come to my attention of people actually being FIRED for smoking off duty.

The public may not have noticed this before, but it does now.
If I were a betting man, I would bet that employers are not going to have their wings clipped.

I don't know if this Michigan case will be the start, but I wouldn't be surprised if it was.

Of course, I could be misreading this. It could be that there is so much bitterness and hatred towards smoking, in particular, that the democracy WON'T react forcefully to discrimination against smoking.

And it could be that general public disgust for fat people will make it such that the democracy won't react forcefully to discrimination against them either.

It will be interesting to see, then, what happens if some strict Baptist company down South fires everyone who drinks alcohol in their off duty time, using identical logic. At that point there will be a backlash, because prohibitions on drinking are, of course, something that religious right-wingers would do, and that might bring in the ACLU.

The better solution is for business types and chambers of commerce to stand up and say that this sort of meddling in private lives is not good for business.

It may be that nobody cares enough about smokers or fat people, drinkers, folks who surf for internet porn (presumably the employer could insist on installing a monitor on a home computer as a condition of employment), motorcycle riders, or really whatever other sort of private behavior that bothers some puritanical boss to do anything about it.

I merely observe that people most certainly COULD shut this nonsense down if they wanted to. A judge and jury could assess penalties on a variety of theories. Laws could be passed that restrict these sorts of things, so that employers can't do it anymore, etc.

"There are a lot of smart people here--any thoughts, Freepers?"

This is a "conservative" forum.

The word conservative means to "conserve" something.

I would assume that conservatives wish to conserve the covenants of the U.S. Constitution.

That being the case, why would any "conservative" and/or "Freeper" advocate an unconstitutional expansion of an unconstitutional federal law?

The ADA is unconstitutional because it clearly, unambigously, violates Amendment V:

"nor shall private property be taken for public use without just compensation."

SUPREME COURT OF THE UNITED STATES

No. 98—963 JEREMIAH W. (JAY) NIXON, ATTORNEY GENERAL OF MISSOURI, et al., PETITIONERS v. SHRINK MISSOURI GOVERNMENT PAC et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT [January 24, 2000]

Justice Stevens, concurring.

"I make one simple point. Money is property;"

Enforcement and implementation of the ADA requirements takes money from private property owners.

For the ADA law to be constitutional, taxpayer's are require to compensate private property owners for the money needed to line the parking lot for disabled, alter doors and add ramps for disable, etc.

In addition, the jurisdiction of the ADA law is dubious as well.

Federal jurisdiction within the boundaries of sovereign state for regulation of business is always assumed to be the "commerce clause."

Article I, Section 8, Cl 3:

"To regulate commerce with foreign nations, and among the several states, and with the Indian tribes:"

How did a private property owned business become either a "foreign nation(s)...state(s)...Indian tribe(s)?

As private property owner of a small business I make the rules. If you wish to work for me you abide by the rules or take a hike.

And if I think that your lifestyle outside of my business is detrimental to my business and thus require you not to participate in certain lifestyle behaviors or lose your job, that is my call and my call only.

That is what "Free(per)" do.

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