ASH's Legal Response To Suggestion in British Columbia
That There is a Legally Protected Right to Smoke


For a PDF version of this document which includes the many footnotes, click on: http://ash.org/BCresponsePDF.pdf

Before the B.C. HUMAN RIGHTS TRIBUNAL
1170 - 605 Robson Street, Vancouver, B.C. V6B 5J3
__________________
Roxanne Stevenson,     )
    Complainant             )
        V                         )        2009 BCHRT        File 6164
City of Kelowna           )
______Respondent__  )

Motion to Intervene Pursuant to Rule 22.1 OR, In the Alternative, to File a Brief Amicus Curiae,
Seeking Reconsideration of the Decision of 02/04/09 Which Declined to Dismiss the Complaint,
AND, In Effect, Added “Status as Smoker” to List of Those Groups Entitled to Special Protection,
OR, In the Alternative, Providing Additional Reasons Why the Complaint Should be Dismissed

Action on Smoking and Health (ASH), America’s first antismoking organization, and one which while serving as the legal action arm of the antismoking community has initiated and/or participated in a very wide variety of legal proceedings involving smoking,  hereby respectfully requests the opportunity to intervene pursuant to Rule 22.1, or, in the alternative, to file this brief amicus curiae on behalf of Respondent. ASH’s arguments for dismissing the complaint are summarized very briefly below, and set forth in somewhat greater detail – with appropriate citations – hereinafter. 

ASH respectfully suggests that the Tribunal cannot indirectly validate a complaint based upon an allegation of non-existent medical condition, and one which would not amount to a “physical disability” in any event, since that would in effect constitute amending the Code to include “status as smoker” or “tobacco user” to the very short and limited  list of protected groups since:
    A. it has not been delegated the legal authority, so any such act would be ultra vires
    B. decisions of fundamental policy like this should be made by legislatures, not agencies
    C. being a smoker is completely different from the other legally protected classes
    D. it is very well recognized that there is no legal or moral right to smoke
    E. such a position would lead to bizarre results and/or intractable problems

Furthermore, ASH respectfully argues that it would be improper to seek to protect smokers as persons with “physical or mental disabilities,” even assuming for the sake of argument that some may have an addiction to nicotine, because:
    F. it would be contrary to laws, regulations, and practices limiting or banning smoking
    G. an addiction to nicotine would hardly constitute a true disability (or handicap)
    H. most smokers who wish to are able to quit, albeit perhaps with some difficulty
    I. those who remain smokers are not addicted to smoking, but rather to the drug nicotine
    J. there are many readily available ways to satisfy a nicotine addiction short of smoking

In short, there is no recognized “medical condition” called “smoking addiction” since the addiction, if it exists here and can be proven, is to nicotine and not to smoking.  Furthermore, any such nicotine addiction does not constitute a “physical or mental disability,” and it can be satisfied in many ways.

    K. Providing protection for those who “reek” of smoke would also inhibit if not prevent employers from protecting those with true physical disabilities from “Thirdhand Tobacco Smoke.”

MOTION TO INTERVENE PURSUANT TO RULE 22.1 OR,
IN THE ALTERNATIVE, TO FILE A BRIEF AMICUS CURIAE

Rule 22.1 provides that: “A member or panel may, at any time after the complaint is filed and on the terms specified by the member or panel, allow any person or group of persons to intervene in the complaint, whether or not that person or group would be affected by an order made by the member or panel under section 37. [emphasis added]

It appears that in promulgating a written opinion holding that any person who alleges that he or she has “an addition to smoking” [p.4] and that they were not hired (or were fired or not promoted, etc.), states a valid claim under the Code to which the respondent must then reply, Tribunal Member Enid Marion may not have fully considered whether such a claim falls with the terms of the Code.  At the very least, there is no discussion of that issue in the precedent-setting opinion.

This in not at all surprising because the Respondent, judging from the opinion, did not seriously raise it.  Respondent’s defense, as recited in the opinion, is that it did not decline to hire Complainant because she was a smoker who “reeked” of smoke.  Rather Respondent argues that she was not hired for other reasons, and that Respondent “has hired numerous smokers in the past, employs persons with disabilities and does not exclude applications because of any perceived or real disabilities.”

This is probably the principal reason why Respondent did not contest the assertion that “an addiction to smoking” exists, and/or that, even if it existed, that it would not constitute a “disability.”  However, in addition, and with all due respect to Respondent’s attorney, it is very unlikely that he would have the requisite medical and legal background to make such an argument in an initial motion to dismiss.  Also, as a matter of strategy and tactics – since Respondent denies that Respondent’s smoking was a factor in refusing to hire her – he may have found it inappropriate to do so at this time.

But a decision opening the door for tens of thousands of smokers to file complaints based solely upon their status as smokers (or as allegedly “addicted smokers”) every time they are not hired, or are fired, or suffer some other alleged slight in their employment condition, would put many employers at risk and forced to respond to such complaints (even if they did not in fact consider smoking status), and would add considerably to the burdens of this agency charged with protecting people suffering very real discrimination upon the very grounds stated in the Code.

Such issues should not be decided without careful consideration and without listening to all arguments and examining all precedents.  Therefore it is respectfully suggested that Movant, with more than forty years of experience with legal proceedings involving smoking, be permitted to intervene for the limited purpose of arguing that such allegations do not present a situation over which this Tribunal has statutory authority or jurisdiction, and in any event that “there is a  no reasonable prospect that the complaint will succeed.” [27.1©] For more information, please see the application for leave to file a brief amicus curiae attached as an APPENDIX to this document.


A. THE TRIBUNAL CAN NOT AND SHOULD NOT ADD “STATUS AS SMOKER” OR “TOBACCO USER” OR EVEN “NICOTINE USER” TO ITS VERY LIMITED LIST OF PROTECTED GROUPS, BECAUSE IT HAS NOT BEEN DELEGATED THE LEGAL AUTHORITY, SO ANY SUCH ACT WOULD BE ULTRA VIRES

The Human Rights Code which the agency enforces, and from which it seemingly draws its powers, sets out only a certain number of conditions upon which by law discrimination in employment cannot be based, including, e.g., “race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person . . .”

It is undisputed that “smoker,” status as a “tobacco user,” etc. are not included in the Code as requiring protection.

It is a well recognized and fundamental principle of administrative law that an agency may exercise only those powers delegated to it, and may neither go beyond them nor, but its own action, enlarge its own powers.  As to the first, for example, it is clear that an agency authorized to regulate the safety of airplanes cannot entertain complaints governing children’s bicycles, ships, etc. 

There are, however, a very few limited exceptions to the general rule that an agency may not enlarge its own powers. First, the agency may of course do so if the power to enlarge the scope of its own jurisdiction is granted by the legislature, either expressly or by clear implication (e.g., a strong indication of such legislative intent).  Neither seems to be the case here.

Second, an agency may sometimes be able to slightly enlarge its powers by adopting a broad definition of a term already existing within its statute.  For example, although the term “sexual orientation” is often taken to refer solely to a homosexual or bisexual orientation, an agency might seek to stretch the definition of the term to include persons who are transgendered, transvestites, have an orientation towards pedophilia or bestiality, etc. – although the dangers of such a course should be all too obvious.

However, there is no term within the list of protected conditions or characteristics in the Code into which “smoker,” “status as smoker,” “tobacco user,” “choosing to smoke,” etc., could conceivably fit, and apparently no indication of any legislative intent that this group be singled out from all other possible groups – e.g., users of spit tobacco, nudists, exhibitionists, etc. – for enhanced and special legal protection.  Therefore this agency should not recognize as a protected category those who smoke.


B. THE TRIBUNAL CAN NOT AND SHOULD NOT ADD “STATUS AS SMOKER” OR “TOBACCO USER” OR EVEN “NICOTINE USER” TO ITS VERY LIMITED LIST OF PROTECTED GROUPS, BECAUSE DECISIONS OF FUNDAMENTAL POLICY SHOULD BE MADE BY LEGISLATURES, NOT AGENCIES

The proper role, and distinctions in terms of roles and duties between legislatures and agencies, is clear.  Legislators, as representative of the voters, make policy decisions, although they often must leave the precise implementation of those policy choices to specialized agencies. 

Members and staffs of agencies, in part because they are not directly elected by the voters, take their direction from the legislators and carry out the legislators’ policy decisions, either by adopting rules which “flesh out” the will of the legislative body, or by making individual adjudicative and regulatory decisions (e.g., ruling on initial complaints) to effectuate it.

Thus fundamental decisions, like which groups are entitled to the additional and expanded legal protections afforded by the Code, must be made by the legislative body, not those who simply carry out its mandate.  Several examples illustrate this basic principle.

In the U.S., while some jurisdictions do provide protection for those denied jobs because of their sexual orientation, many for various reasons do not include that category in their civil rights statutes.  Regardless of how those at the agency feel about the decision not to include sexual orientation as a protected category, they clearly are not free to add it to their mission, and protect persons denied jobs because of their sexual orientation, as they do persons denied jobs because of the race, religion, gender, etc.  More specifically, they cannot arbitrarily decide that a person who is homosexual has a “physical or mental disability,” and thus provide this protection indirectly.

Similarly, many states in the U.S. do, in their civil rights states, prohibit hiring decisions which are made on the basis of “smoking,” “tobacco use,” “use of a lawful product,” etc.  But in those states which have chosen not to afford such additional protections, those at the agency level are not free to add it, regardless of their views on the issue, either directly or by arbitrarily deciding that a person who smokes thereby suffers from a “physical or mental disability.”

As a final example, the District of Columbia prohibits discrimination based upon – in addition to the usual categories –  family responsibilities, genetic information, and matriculation.   Since these terms do not appear in the Code this agency enforces, it would not be appropriate for the Tribunal to add these categories to its mandate, just because another jurisdiction has chosen to do so and/or because it seems to personnel at the Tribunal that it is fair or just or reasonable to do so.

C. THE TRIBUNAL CAN NOT AND SHOULD NOT ADD “STATUS AS SMOKER” OR “TOBACCO USER” OR EVEN “NICOTINE USER” TO ITS VERY LIMITED LIST OF PROTECTED GROUPS, BECAUSE BEING A SMOKER IS COMPLETELY DIFFERENT FROM THE OTHER LEGALLY PROTECTED GROUPS

Generally, anti-discrimination statutes provide special legal protection to certain enumerated groups for two basic reasons:  (A) the protected characteristic is immutable, or at least so basic and fundamental to a person that requiring them to change would be outrageous, and (B) society has concluded that basing a decision such as hiring on such a characteristic is totally illogical.

The most fundamental form of discrimination which has been made illegal is that based upon race.  Race (or colour) is an immutable characteristic, so basing a hiring decision upon race is deemed unfair.  Moreover, with very few exceptions (e.g., seeking only White actors to play George Washington, or only Black actors to play George Washington Carver), society has determined that there is no reasonable basis for preferring one race over another in hiring.

The same basic arguments apply to discrimination based upon gender.  Gender is likewise an immutable characteristic.  Also, although there are a somewhat larger number of exceptions due to personal privacy considerations (e.g., seeking only women to help female customers try on bras, or seeking only men to clean men’s rest rooms), society has determined that there is usually no reasonable basis for preferring one gender over another in almost all aspects of hiring.

Sexual orientation is enumerated in the Charter, apparently because of the view either than it is a completely immutable characteristic which cannot be changed, or that it is so much a part of a person’s history and identity (like religion or political convictions) that it would be outrageous to expect people to change.  In this regard it should be noted that sexual orientation is not included in the anti-discrimination laws of many U.S. states – and transgenderism is not included in most –  usually because of arguments that neither is immutable.

Religion and political convictions are additional examples of virtually immutable characteristics since, while one may choose to change his religion, a person’s belief about God, or their basic political convictions, are deemed fundamental.  For example “freedom of conscience and religion” are “fundamental rights” protected under the Canadian Charter of Rights and Freedoms.

In stark contrast, smoking or the use of tobacco is hardly an immutable characteristic.  Tens of millions of Americans and Canadians who have managed to quit smoking attest to this.  In that regard, choosing to smoke tobacco is more like choosing to chew and spit tobacco (from which the user derives exactly the same satisfaction or relief), choosing to burn incense (which likewise may be pleasurable to the user but releases smoke into the air and onto clothing which others must breathe), choosing not to adequate cover up one’s body according to the norms of the place where the person is (which may be different on a beach than on a public street), etc.

Also, many governments have now made it very clear that – unlike with race, gender, religion, etc. – there are perfectly logical reasons why employers may wish to have a smokefree work force, just as many insist upon a drug free work force.  Employees who smoke, even if they only smoke off the job, cost their employers thousands of additional dollars in costs for health care, disability, time lost from work, and (frequently) time lost during the work day to smoke.  In addition, engaging in the activity of smoking, even off the job, can seriously harm the public image of the employer.

D. THE TRIBUNAL CAN NOT AND SHOULD NOT ADD “STATUS AS SMOKER” OR “TOBACCO USER” OR EVEN “NICOTINE USER” TO ITS VERY LIMITED LIST OF PROTECTED GROUPS, BECAUSE  IT IS VERY WELL RECOGNIZED THAT THERE IS NO LEGAL OR MORAL RIGHT TO SMOKE.

In the U.S., as in Canada  and many other leading countries, the right to have and practice a religious belief is deemed to be a fundamental right, so basing a hiring decision upon this practice is seen not only as unfair, but also contrary to clearly established social policy. That’s why hiring based upon religion is largely prohibited (except for hiring by religious groups where adherence to a religious view or practice may be central).

Similarly, the right to hold and to express political views is likewise deemed fundamental in a democracy, so that hiring based upon political convictions is likewise largely prohibited (except for hiring by political parties where adherence to the party’s views and positions may be central).

 But, and in sharp contrast, smoking is not a legal or moral right, much less a fundamental one. That’s why every court or other legal body of which we are aware has rejected the argument that smoking is even a right – much less a fundamental one – and/or that it should be protected as part of some other fundamental right such as a right to travel, a right to assemble, free speech, etc.

If there were a legal or moral right to smoke tobacco, there presumably would have to be a corresponding legal and moral right to chew and spit tobacco or to burn incense – the two closest analogies – but no reasonable person would make that assertion.

Any argument that there must be a legal right to smoke tobacco from the fact that it is legal to sell the product would lead to the conclusion that there is a corresponding right to use dice to gamble, to ride trail motorcycles and racing cars, to set off fireworks and some explosives, utilize blow-up dolls as sex toys, etc. (because all are lawful products).  But few would argue that such rights exist merely because the sale of a product is not outlawed, and no one would argue that a fundamental right is created simply by a governmental decision not to ban the sale and use of a product.  For example, there is no place in the District of Columbia where one may lawfully ride a trail motorcycle or use a race car, even though such products are readily sold within the jurisdiction.

Courts and legislators have uniformly rejected the idea that there is any inherent legal right to smoke   – even in the home.  For example, in literally thousands of U.S. divorce cases, parents have been forced to sign agreements promising not to smoke in the presence of their children, and the courts’ decisions to impose such orders – or even to remove the children from a smoking parent’s custody if necessary – have been repeatedly upheld.   Similar restrictions are now apparently being imposed in other countries, including, for example, France  and South Africa.

Thus, it appears that in many U.S. states, smoking has been recognized as a factor in custody decisions, and parents have been prohibited from smoking in their own homes not only around children – but often even before they are due to arrive – and/or have lost custody for smoking in their own home when children are present; a clear indication that there is no legal right to smoke, even in one’s own private home, in those jurisdictions. 

Moreover, at least 17 U.S.  states,  as well as several local governments in Canada and the United Kingdom,  have prohibited smoking around foster children, and many more are planning to do so.  Indeed, a growing number of states and jurisdictions in other countries (including Canada) have gone even further, and have banned smoking when children are present in cars.

Likewise, courts are now beginning to hold that smoking, even in a private apartment, is not protected if the smoke adversely affects others (e.g., through drifting or re-circulation)  and many apartment buildings, college dormitories, nursing homes, and other residences have banned smoking even over the objections of smokers who may not have much choice to live elsewhere.

This point is very dramatically illustrated by a very far-reaching decision which occurred recently when a high court in Great Britain was confronted with patients who were involuntary confined to a psychiatric facility where all smoking was prohibited.  They argued that a ban on smoking, in what amounted to their own homes (since they were not free to live elsewhere), violated their rights. 

But the court held that preventing detained mental patients from smoking was not a breach of Article 8 (Right to Respect for Private and Family Life), or Article 14 (Prohibiting Discrimination), of the EU Convention on Human Rights.

Furthermore, unlike hiring decisions based upon religion and political convictions  – both of which would be contrary to clearly established social policy – there is no social or governmental policy to protect the practice of smoking.  Indeed, and in sharp contrast, many governmental programs exist in Canada as well as elsewhere for the primary purpose of helping people to quit smoking, and/or dissuading them from ever becoming smokers. 

So, unlike the other well recognized and fundamental rights which are protected by the Code, being a smoker or administering nicotine are not rights at all either logically or legally, and certainly not fundamental rights of the kind to which it is appropriate to allocate scarce government resources to protect. 

In deciding to provide legal protection against firings based upon race or gender, for example, governments made a calculated decision that the right being protected was so important that it warranted protection, even though such protection might in some situations deter employers from discharging women or minorities who were poor employees, and even though extending such protection required expenditures of significant governmental resources by agencies and ultimately by the courts.  No such considerations apply to a mere habit like smoking tobacco, chewing tobacco, etc.

In short, smoking tobacco is just an activity like chewing and spitting tobacco, burning incense, hunting, listening to loud music, etc. which, while legal, should not be legally protected – especially since the legislature has chosen not to include it expressly or even by implication in the Code, nor to authorize the Tribunal to add it or to add any other new category.

E. THE TRIBUNAL CAN NOT AND SHOULD NOT ADD “STATUS AS SMOKER” OR “TOBACCO USER” OR EVEN “NICOTINE USER” TO ITS VERY LIMITED LIST OF PROTECTED GROUPS, SINCE SUCH A POSITION WOULD LEAD TO BIZARRE RESULTS AND/OR INTRACTABLE PROBLEMS

If the Tribunal were to rule that a bona-fide antismoking organization could not decline to hire a smoker – even though “smoker” or “tobacco user” is not a protected category under the code – it would be hard to prevent the Tribunal from being required to make even more bizarre rulings.

For example, an animal rights organization which is strongly opposed to hunting, and other activities which in their view needlessly and cruelly harm animals, might have no choice but to hire a person who frequently hunts (e.g., on the weekends).  After all, they would argue, hunting like smoking is not illegal, guns and cigarettes are both lawful products, people can become addicted to hunting, and arguments for a so-called right to hunt are virtually the same as arguments for a so-called right to smoke.

Similarly, a women’s rights organization strongly opposed to what they believe is the exploitation and dehumanization of women through stripping and strip clubs might be required by the Tribunal to hire a women who engages in exotic dancing during her off hours, or a man whose hobby is patronizing strip clubs and/or organizing stripper performances for bachelor parties.

If a refusal by an antismoking organization to hire a smoker is held to constitute illegal discrimination, then presumably a refusal by a strict vegetarian (Vegan) organization to hire someone like Governor Sarah Palin (who eats and hunts her own meat) would likewise be discrimination. 
An organization promoting total abstinence might have no choice but to hire someone who stops at  a bar directly across the street from his office for a couple of drinks every day upon leaving work.
 
On the other hand, a smokers’ rights organization which wishes to hire a smoker to help demonstrate their commitment to the practice, and/or be better able to understand it, might be forced to hire a nonsmoker, and a wine-tasting club or group which promotes the use of wine in moderation might have to hire someone who refuses to drink at all under any circumstances or who drinks to excess, allegedly because of an addiction to alcohol.

A group which opposes what it believes are violence and unnecessarily-violent sports – in favor, for example, of cooperative non-contact athletic activities – could be fined if it refused to hire someone who moonlights as a mixed-martial artist or boxer, or plays football or ice hokey in his spare time. 
In short, the list of absurd results would seem to be almost endless, since many organizations have and actively seek to promote a wide variety of different views, some of which are contrary to the views and desires of millions of people who both want to engage in activities which are contrary to an organization’s mission and to obtain employment from them at virtually any cost.

Some may try to argue that while a nonsmokers’ organization should not be forced to hire a smoker – just as an anti-hunting organization should not be required to employ hunters, or a smokers’ rights organization should be free to advertise for “smokers only” – the freedom not to hire persons because of these and similar characteristics should be limited to those organizations for whom the hiring criteria is directly related to the central or core mission of the group.  Some might also suggest that such criteria should  be permitted only where they constitute a ‘bona fide occupational requirement.”

But trying to make this distinction – protecting smokers, nonsmokers, hunters, meat eaters, etc. from alleged discrimination in hiring unless the criteria for hiring were directly related to the mission of the organization – would likewise result in trying to make difficult if not bizarre distinctions.

If an organization dedicated solely to nonsmokers can decline to hire smokers (i.e., because it is held to be a “bona fide occupational requirement”), does the same apply to the American Cancer Society, American Lung Association, and the American Heart Association – all of whom have very strong positions on smoking, spend millions of dollars, and play a significant role in the area.  But the key difference is that antismoking activities are only a relatively small part of these organizations’  total mission, and require only a small portion of their total budget.  Moreover, most of their employees are not directly involved in antismoking activities.

An even stronger argument can be made that organizations like the American Medical Association should be required to hire smokers, since the group’s primary purpose is to represent and protect the interests of physicians, not to fight smoking.  Yet the AMA and many similar organizations have very strong positions on the issue of smoking, likewise spending millions of dollars on the problem, and the effectiveness of their programs as well as their public image would be very severely compromised if (for example) a senior official were observed smoking in public, or even in private.

If there is agreement that a stop-smoking clinic should be able to advertise only for nonsmokers, would not the same logic apply to a clinic or hospital which has a major smoking cessation program.  A contrary answer would undermine their image, the ability to promote their program, etc., since people would wonder why someone working for a clinic or hospital with an effective smoking cessation program would continue to smoke, even if only off the job.

Many health insurance companies decline to hire smokers because they do not wish to undermine the image and effectiveness of their smoking-cessation programs and other efforts.  Many hospitals have taken steps because of the embarrassing image created when their physicians and surgeons are observed while they are smoking.

The World Health Organization (WHO), a massive body whose anti-smoking efforts are only a very small part of their overall health programs and budget, nevertheless has long had a policy of refusing to hire smokers.  A growing number of other companies also have such policies.

Thus, just as the Tribunal should not force antismoking organizations to hire smokers (or smokers’ rights organizations to hire nonsmokers), it should not seek to prevent other organizations and companies who wish to adopt such a policy from doing so since – as the examples above indicate –  it would be virtually impossible to make principled decisions regarding the precise scope of the protection.

F. IT WOULD BE IMPROPER TO SEEK TO PROTECT SMOKERS AS PERSONS WITH “PHYSICAL OR MENTAL DISABILITIES,” EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT SOME MAY HAVE AN ADDICTION TO NICOTINE, BECAUSE IT WOULD BE CONTRARY TO LAWS, REGULATIONS, AND PRACTICES LIMITING OR BANNING SMOKING

A few people have suggested that, even if smoking itself is not a right, smokers should nevertheless be given special legal protection because they are disabled (or handicapped) people.  But aside from many other factual and legal flaws in that argument, it would be clearly contrary to many laws, regulations, and practices which already exist which limit or ban smoking.

Most laws aimed at preventing discrimination recognize that a rule or practice may be discriminatory –  even if it is not discriminatory on its face – if it has the effect or consequence of adversely affecting a protected class. 

For example, a rule which prohibited the wearing of high heels, or which gave preference in hiring to people who do not wear high heels, is neutral on its face as written because it does not mention gender, and because women obviously do not need to wear high heels.  But it would probably be held to constitute illegal gender discrimination because it obviously has a much greater effect or consequence in our society on women than on men, since many women (and virtually no men) may wish for whatever reason to wear high heeled shoes. 

A rule which prohibited the wearing of a brassiere in the workplace would be even more likely to be held to constitute illegal gender discrimination since the need or desire of women to wear such an article of clothing is probably far stronger than a need or desire to wear high heels, and the impact of such a rule on male employees would be de minimus.

In the same way, a ban on smoking in an office or other workplace would clearly have a much greater effect or consequence on employees or visitors who are smokers than on those who are nonsmokers.  Many would probably maintain that it would be very difficult to go without smoking during the entire workday or even between breaks, especially at companies which no longer permit smoking anywhere on their property.  If smokers therefore could demand special protection because they are allegedly disabled (or handicapped) persons, such bans would be subject to challenge.

More specifically, although such total bans on smoking in workplaces and places of public accommodation are becoming increasingly widespread bordering on universal in many countries – especially since such protection is now mandated by the Framework Convention on Tobacco Control and the Guidelines for Section 8 –  smokers might be able to demand a “reasonable accommodation” because of their alleged status as disabled people. 

Thus, recognizing a claim based upon smoking status could lead to absurd results, since smokers on long-distance flights might then be entitled to a special smoking area on airplanes.  Similarly, students taking stressful tests at universities, prospective employees taking difficult and taxing civil service exams, and even persons seeking tests (both written and behind the wheel) for a driver’s license (operating permit) could demand separate testing facilities where smoking is permitted.

G. IT WOULD BE IMPROPER TO SEEK TO PROTECT SMOKERS AS PERSONS WITH  “PHYSICAL OR MENTAL DISABILITIES,” EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT SOME MAY HAVE AN ADDICTION TO NICOTINE, BECAUSE AN ADDICTION TO NICOTINE WOULD HARDLY CONSTITUTE A TRUE DISABILITY.

Even if many smokers are in fact addicted to nicotine, this would not constitute a “handicap” or a “disability” as those terms are generally understood and applied – in both common parlance and in legal situations – to require a very significant impairment of the ability to be employed and/or to engage in other major life activities.

Millions of people with typical “bad backs” have trouble lifting heavy objects and therefore are unable to work as fire fighters, lumberjacks, constructions workers, etc. But they would hardly be regarded as “disabled” because of this condition alone, since the number and percentage of positions closed to them because of these conditions are small.  For a back problem to cross over the line and become a legally-protected disability, it would have to be so severe that most employment opportunities were foreclosed or many everyday activities could not be carried out. 

Similarly, although many persons may lack the concentration and hand-to-eye coordination required for various occupations (e.g., air traffic controller, sports referee, etc.), this inability hardly rises to the level of a “handicap” or “disability” since such people are still able to function satisfactorily in most employment situations, as well as in carrying out most major life activities.

Since smokers are able to refrain from smoking for long periods of time when their employment situation requires it – e.g., on long coast-to-coast airline flights or even flights abroad, when smoking is banned on the premises where they work and/or smoking breaks are not available – it is clear that being a smoker cannot be truly termed a “disability” even if the other criteria for a “disability” could  somehow be met.

If it could, then people who are gum chewers, or even addicted to chewing gum, could likewise claim a special privileged status, even though they are obviously able to engage in virtually all normal activities, and even though only a very few employment opportunities are closed to them because they chew: e.g., working in a “clean room” making semiconductors, employment as a teacher in schools where gum chewing might be prohibited., etc.

Indeed, unlike obesity – which is a medical condition which in extreme cases may constitute a disability – smoking (regardless of the underlying reasons for engaging in it) – is still only a behavior.  This distinction is well recognized by the U.S. Government in a decision which is not controlling here but provides valuable precedent and expert interpretation.  The ruling noted in approving higher health insurance rates for smokers that: “While being a smoker is a behavior, not a health status, arguably the condition of obesity is a health status.”  [emphasis added]

H. IT WOULD BE IMPROPER TO SEEK TO PROTECT SMOKERS AS PERSONS WITH “PHYSICAL OR MENTAL DISABILITIES,” EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT SOME MAY HAVE AN ADDICTION TO NICOTINE, BECAUSE MOST SMOKERS (EVEN ADDICTED ONES) WHO WISH TO ARE ABLE TO QUIT, ALBEIT PERHAPS WITH SOME DIFFICULTY.

Tens of millions of former smokers have quit smoking.  This means either that they were not truly addicted, or that they were able to quit despite any addiction they might have.  In either event, then, it is hard to argue that they had a “disability” since they could – if they wished – apply for employment once they had quit, even if the position is listed as for nonsmokers only.

Although nicotine is an addictive drug, this certainly does not establish that most smokers are addicted to nicotine.  For example, it is also well known that alcohol is an addictive drug.  But the overwhelming majority of people who use alcohol, even very frequently, are clearly not alcoholics who are addicted to the addictive drug alcohol.  In much the same way, many smokers also are not addicted to nicotine (or to any other substance, or to an activity such as smoking).

Moreover, even among the small percentage of the population who are addicted to alcohol (i.e. alcoholics), it is also well known that many of them are able to refrain from drinking, despite their addiction to alcohol.  The same is also true of persons who had (or still have) an addiction to heroin, cocaine, and other clearly additive drugs who have nevertheless managed to refrain from using them.  In much the same way, the great majority of smokers can, if they try hard enough, quit smoking, despite their addiction.

The reason for this apparent contradiction is that the strength of an addiction can vary, and in many cases a person with an addiction can quit, albeit with some medical or other assistance.  Indeed, a very recent study showed that simply offering a modest monetary reward can provide sufficient additional motivation for many smokers to quit  – thereby undercutting the argument that smokers are doomed by their addiction to continue smoking.

This is true even of substances which many believe are more addictive than nicotine, such a heroin or cocaine, where many users, despite clear and strong addictions, were in fact able to quit.  It certainly is true of addictions of nicotine, just as it is true for the small percentage of the population who are addicted to caffeine.

All of this makes for a very powerful argument against automatically labeling all smokers as “addicted” (much less “handicapped” or “disabled”), since many are not in fact addicted, and many of those who are have only a weak addiction which can be overcome either on their own or with outside assistance.

I. IT WOULD BE IMPROPER TO SEEK TO PROTECT SMOKERS AS PERSONS WITH “PHYSICAL OR MENTAL DISABILITIES,” EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT SOME MAY HAVE AN ADDICTION TO NICOTINE, BECAUSE THOSE WHO REMAIN SMOKERS ARE NOT ADDICTED TO SMOKING, BUT RATHER TO THE DRUG NICOTINE

As noted above, the overwhelming number of smokers either are not addicted, or have an addiction which is not so overwhelming in strength that they cannot break it. As to those, the argument of a need for special protections from employment “discrimination” based upon a claim of addiction has no basis. 

Their unwillingness to give up smoking then is more akin to persons who become “addicted” to sleeping late (and are therefore ineligible for many positions), or to jogging in the middle of the day (which might make various employment positions untenable), or to chewing gum (which could make it impossible for them to work in “clean rooms” with semiconductors, etc.), or to engaging in very risky sports like base jumping (which could make them so injury prone that some employers might not employ them in key positions).

But, even the small percentage of smokers who are truly addicted, and whose addiction is so strong that they cannot quit, are addicted not to the act of smoking but rather to the drug nicotine – a vital distinction in terms of legal protection as “handicapped” or “disabled.”

Even in those rare cases in which a person may have such a strong addiction to nicotine that he or she cannot overcome it – even with drugs and other medical intervention –  the addiction is not to the act of smoking, but rather to the addictive substance (nicotine) delivered into the person’s body by the act of  smoking.

In short, no one has even been found to be addicted to smoking – an alleged medical condition which simply does not exist – any more than traditional addicts are addicted to shooting up heroin, smoking crack, or snorting.  Rather, in each case, any alleged addiction is to a specific substance – nicotine, alcohol, heroin, cocaine, caffeine, etc.  – rather than to methods of delivering or ingesting it like smoking, shooting up, drinking, snorting, etc. 

Thus the Tribunal should not uphold and sustain a complaint which alleges “an addition to smoking” [p.4] since no such condition in fact exists or has been recognized by any reputable medical authority or organization.  To do so could easily besmirch the Tribunal’s reputation and hold it up to ridicule and scorn,  and thereby undermine its ability to protect many people with real “physical and medical disabilities” of the type recognized and documented by modern medical science. [SEE K.]

J. IT WOULD BE IMPROPER TO SEEK TO PROTECT SMOKERS AS PERSONS WITH “PHYSICAL OR MENTAL DISABILITIES,” EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT SOME MAY HAVE AN ADDICTION TO NICOTINE, BECAUSE THERE ARE MANY READILY AVAILABLE WAYS TO SATISFY A NICOTINE ADDICTION SHORT OF SMOKING.

Even assuming that all of the prior arguments against expanding the Code to cover a new class – and against providing protection based upon a “handicapped” or “disabled” status for one who is truly addicted to nicotine – are rejected, the complaint at issue should still be dismissed as unfounded – “there is no reasonable prospect that the complaint will succeed” [ 27.1C], for several reasons.

First, it appears that the complainant has not alleged – much less offered to prove – that she is one of the small class of smokers who have a pharmacological addiction to the substance nicotine, rather than a mere psychological habituation (or desire) to continue smoking.  In our estimation, this would be a very difficult fact to establish to a reasonable medical certainty.

Moreover, the complainant would have to show that there was no method other than smoking by which the complainant could satisfy her alleged addiction to the substance nicotine.  But this would be virtually impossible to establish.

Nicotine is now widely available in a wide variety of products to satisfy whatever addictive desires a true nicotine addict can have.  Nicotine is generally available in gums which can be chewed, in patches which can be placed on the body, in oral medications, and even in the form of both chew-and-spit and “spitless” chewing tobacco.  Thus a ban on people who smoke would not preclude any true nicotine addicts from applying for the job since they could, if desired, satisfy their addictive craving for nicotine in various way,

We are not aware of any company which has advertised only for people who do not use nicotine, rather than for those who do not smoke (now increasingly common in the U.S.) for a very simple reason.  While the administration of nicotine is not completely safe since it can continue an addiction and cause a small health risk, the use of nicotine in the form of gums, patches, chewing tobacco, etc. is much less dangerous to the user than continuing to administer nicotine by smoking. 

Since a major purpose of such bans on smoking off the job is to reduce an employer’s costs of health care, disability, time lost from work due to illness, etc., the employer has little reason to go beyond a ban on smoking to achieve these objectives.  From the prospective of the potential employee, a ban on smoking can be complied with either by quitting (something which can be done by all persons who are not pharmacologically addicted to nicotine, or whose addiction is not so strong that it cannot be overcome by a variety of medical interventions, including a variety of drug therapies) or by self-administering nicotine with gums, patches, chewing tobacco, etc.

Obviously, while some smokers will claim that obtaining nicotine from gums, patches, and smokeless tobacco is not as convenient or enjoyable as from smoking, it is virtually impossible to argue that mere inconvenience and/or lack of enjoyment are reasons to establish a new legal right, and compel antismoking organizations and other companies to hire someone who simply desired to continue smoking.

K. PROVIDING PROTECTION FOR THOSE WHO REEK OF SMOKE WOULD ALSO INHIBIT IF NOT PREVENT EMPLOYERS FROM PROTECTING THOSE WITH TRUE PHYSICAL DISABILITIES FROM “THIRDHAND TOBACCO SMOKE.”

Upholding as valid a complaint of discrimination (allegedly on the basis of physical or mental disability) by a smoker who reportedly “reeked” of tobacco smoke (as the opinion noted) would deter if not prevent employers from providing protection to workers who really need it because they are especially sensitive to that which causes the “reek” – tobacco smoke residue, often called “thirdhand tobacco smoke.”

This is far from a hypothetical problem.  ASH recently assisted a women who worked in a smokefree office, but had an officemate who smoked outside the office.  Because she had a diagnosed sensitivity to the components of tobacco smoke, both of her physicians submitted written statements that this exposure to tobacco smoke residue endangered not only her own health, but also the health of the unborn child she was then carrying.  Here is what each physician stated.

“[Patient] is currently under my care for her pregnancy.  She is extremely sensitive to the chemicals in tobacco smoke and her breathing is adversely affected in the presence of someone who has recently smoked and has the tobacco smoke residue on his clothing.  The smoke residue lingers on a person’s clothing long after they have finished smoking.  Smoking and second hand smoke has known effects on the placenta that carries nourishment to the baby.  Therefore, to protect her health and the health of her baby, she should not be assigned to an office with someone who smokes during the workday, even if that person doesn’t smoke in that room.” Doctor A [emphasis added]

“[Patient] is so extremely sensitive to chemicals in tobacco smoke that her breathing is adversely affected in the presence of someone who has recently smoked.  Her sensitivity is also to the tobacco smoke residue on the person or clothing of a smoker, not just the smoke in the air.  Therefore, to protect her health, especially during her pregnancy, she should not be assigned to an office with someone who smokes during the work day.” Doctor B [emphasis added]

Many courts and agencies in the U.S. have found, often in legal proceedings initiated or assisted by ASH, that persons who are especially sensitive to tobacco smoke and its many constituents are entitled to protection as handicapped or disabled persons, provided that the sensitivity and exposure significantly affects – as it did for the patient above – their breathing; a “major life activity.”

It is well established that persons who are sensitive to the residue of tobacco smoke, as well as to tobacco smoke itself, are entitled to protection and to a reasonable accommodation, under the Americans With Disabilities Act [ADA].  Indeed, in one case which resulted in a court decision, it was held that the mere fact that the plaintiff could use mitigating measures (such as inhalers and hot showers) or that the asthma attacks which resulted from exposure to tobacco smoke residue were temporary, did not defeat his claim of entitlement under the ADA.

If – in this case and in the situation previously described involving a pregnant worker – the smoking employee who caused this problem with his own smoking could have himself claimed protection under an anti-discrimination statute (as an “addicted smoker”), it certainly would have inhibited each employer from providing the worker sensitive to tobacco smoke residue the protection he or she so clearly needed, and to which they were so clearly entitled.

Several recent studies have drawn attention to the problems that tobacco smoke residue on the breath and clothing of smokers can present to nonsmokers forced to inhale it.  For example, a recent study published in the journal Indoor Air reported on the dangers parents who smoke only outside the home nevertheless present to their children.  If ordinary children can be affected, it is reasonable to conclude that adult employees with special sensitivity to tobacco smoke would likewise be put at risk.  A report of the study said:[The researchers] found that even if parents only smoked outside, the levels of respirable suspended particles, including nicotine, were significantly higher in their homes. Lead researcher Dr Krassi Rumchev, says the findings are important because they indicate that smoking outdoors may not be enough to safeguard kids from the effects of environmental tobacco smoke, reports ABC Online. "According to the study, smoking outdoors seems inadequate to protect children," she said. "[The] results demonstrate clearly that if parents want a smoke-free environment for children, they need to stop smoking." A reason for the levels of respirable particles in the homes, says Dr Rumchev may be that smokers disperse pollutants into the home when they return after taking a drag. "When people come inside they're still breathing out smoke and it contaminates the air. It's enough to do harm," Rumchev says. "Nicotine attaches to the hair and body, and pollutants are dispersed into the air off clothes, because small particles can attach to clothes." [emphasis added]

Even more attention to this problem has resulted from a new study published in the journal Pediatrics.  The study provided a new name for the problem – Thirdhand Tobacco Smoke – which the New York Times described as “the invisible yet toxic brew of gases and particles clinging to smokers’ hair and clothing, not to mention cushions and carpeting, that lingers long after second-hand smoke has cleared from a room” in a 1/2/09 article entitled “A New Cigarette Hazard: ‘Third-Hand Smoke’” which described the harmful effects and risks.

Although the full extent of the dangers from the substances given off by a smoker who “reeks” of smoke, and the number of people (adults as well as children) who are especially sensitive to these dangers, are still being studied, it is clear that the problem is a significant one.  As Scientific American explained:
* The level of toxicity in cigarette smoke is just astronomical when compared to other environmental toxins [such as particles found in automobile exhaust]," quoting Stanton Glantz, director of the Center for Tobacco Control Research and Education at the University of California, San Francisco.
* Why is third-hand smoke dangerous? The 2006 surgeon general's report says there is no risk-free level of tobacco exposure…. There are 250 poisonous toxins found in cigarette smoke.

Thus, if smokers whose habit caused them to “reek” of tobacco smoke smell in the workplace could protest any “term or condition of employment” under Section 13(b) of the Code, it would inhibit if not prevent employers from protecting employees whose sensitivity to thirdhand tobacco smoke clearly classifies them as deserving of protection because of their well-recognized medical disability.

Indeed, it could well require employers on the one hand to totally disregard whether or not an employee smokes in determining where and in which offices they work [a “term or condition of employment” under Section 13(b)] while they faced conflicting claims from those especially sensitive to tobacco smoke residue for protection from those fellow employees who do smoke.
 
Here it must be noted that each employee’s claim relates to smoking off-the-job: the smoking employee who could claim discrimination if he is assigned to a different office or to a different location in a given office because he smells of tobacco smoke from his own outdoor smoking, and the sensitive office worker who asserts that the smell of tobacco smoke from the outdoor smoking of her officemate is adversely affecting her health.  Thus, simply banning smoking in the workplace would do nothing to solve this conundrum.

ASH respectfully suggests that while those who are especially sensitive to one or more of the  many chemicals found in tobacco smoke residue – which includes cyanide, arsenic, ammonia, many known carcinogens, etc. – are clearly entitled under the Code to protection from involuntary exposure to this toxic brew, those who by their own actions create these chemicals and release them into their air from their clothing and breath are not entitled to protection under the Code.

SUMMARY AND CONCLUSION

ASH respectfully suggests that the Tribunal can not and should not purport to add a new category to the Code to protect nonsmokers because:
    A. The legislature not been delegated (expressly or by implication) any such authority to the Tribunal to add new categories directly or indirectly, so such an act would be ultra vires
    B. Decisions of fundamental policy – e.g., whether to prohibit “discrimination” based up smoking status, sexual orientation, transgenderism, matriculation (as in DC) – should be made by legislators and not by unelected members of an agency
    C. Smoking status is very different from race, gender, etc. because it is not an immutable characteristic nor a fundamental right, and because there are logical reasons behind such bans
    D. Unlike the practice of religion or the expression of political convictions, every court or other body which has considered the issue has concluded that there is no legal or moral right to smoke
    E. Recognizing for the first time a right to smoke (or to engage in other activities) would produce bizarre results like animal rights groups forced to hire hunters, feminist groups required to hire strippers and patrons of nude bars, and smoker organizations required to hire nonsmokers.

Furthermore, ASH respectfully argues that it would be improper to seek to protect smokers as persons with disabilities (or handicaps), even assuming for the sake of argument that some may have an addiction to nicotine, because:
    F. Providing legal protection to smoke would be contrary to laws banning smoking in workplaces and public places, and even to some restrictions now spreading into homes.
    G. Addiction to nicotine is no more a “disability” than addiction to caffeine or to noontime jogging since it doesn’t significantly interfere with employment prospects or major life activities.
    H.  Smokers are not prevented from seeking employment by companies insisting upon a smokefree work force since they can quit like tens of millions of other former smokers.
    I. Any classification related to smoking and addiction must be limited to those who are truly addicted to the drug nicotine, and not to those not addicted who simply want to continue smoking.
    J. Even nicotine addicts should not be protected since any addiction to nicotine can be treated or at least satisfied by administering nicotine through patches, gums, and chewing tobacco.

Finally, ASH notes that protecting those who actions cause them to “reek” of tobacco smoke residue would inhibit if not prevent employers from protecting those sensitive to this very “reek.”  In short, ASH respectfully suggests that the complaint be dismissed.

Respectfully submitted,    Action on Smoking and Health (ASH)
    2013 H St., N.W.,Washington, DC 20006
    (202) 659-4310 // http://ash.org/
Prof. John Banzhaf, Chief Counsel

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Action on Smoking and Health (ASH)
701 4th St. NW / Washington, DC 20001 / (202) 659-4310
A national nonprofit, scientific and educational organization founded in 1967.
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