First of all, let me just say, it may not be a good idea to add yet another disability that employers have to pay for in some way. As I mentioned earlier, I was just interested in exploring the ideas/possibility.
"And that's pretty much the death-knell for that claim here in the U.S."
Yes, a smoker's ability to function mentally and physically is a big hurdle.
I suppose I was thinking of it from an evidentiary perspective. It would be difficult to show that a particular individual suffered severe impairment, but perhaps a case can be made by looking at the aggregate, by showing that the population of smokers as a whole has a reduced ability to function (respiratory problems, etc.). It may or may not be a convincing case.
Also, did you see Wolfie's link in #110? That discusses U.S. law.
You have a lot of knowledge on this--are you a lawyer? :)
Well, no. They're supposed to interpret the laws as written, not try to create new ones based on what they think the law should be. That's pure judicial activism.
So that if they do that sort of thing, they can be removed by the people in the next election?
Then why bother having a legislature at all? Why not just have judges fulfill both roles? Judges are generally not permitted to campaign on specific issues -- violates judicial canons. So when people elect a guy, they're not supposed to consider whether or not he thinks a law like that is a good idea, and a judge often isn't even permitted to comment on it. That's because its not a judge's job to decide what the law should be -- its his job to decide what it is.
Also, how do you feel about jury nullification, where a fellow is guilty of a law, as written, but the jury considers the law unjust and simply won't convict?
That's not nearly as dangerous because only judges set precedent. A jury verdict only has a legal effect on that particular case, whereas a legal decision issued by a court has some precedential/persuasive effect beyond that case.
You have a lot of knowledge on this--are you a lawyer? :)
Yup. I practice employment law, lecture on it, etc., and am very familiar with the ADA. The problem with the ADA, as with other employment laws, is that most people only think of the egregious cases where most of us can agree that something "wrong" happened. But there are tons of other cases where a broad reading of the statute can create horrible problems for employers who are acting reasonably. You have to consider the unintended conequences of such a law before advocating its expansion.
The ADA does contain some restrictions on the right of an employer to conduct medical examinations of its employees, regardless of whether or not the employee is disabled. So that already provides employees with some degree of protection.