2013 H Street, NW / Washington,
DC 20006 / (202) 659-4310
The Americans With Disabilities Act of 1990 (42 USC §§ 12101 et seq.) has been described by its chief sponsor, U.S. Senator Tom Harkin (D-IOWA) as "the 20th-century emancipation proclamation for people with disabilities".
The purpose of the Act is to end discrimination against people with disabilities and to bring them into the economic and social mainstream of American life. Accordingly, the Act gives people with disabilities protection in private-sector employment, state and local government services (including public transportation), public accommodations (for example, theaters, hotels, restaurants, and lawyers' offices) private transportation and telecommunications.
The provisions of the Act are implemented by detailed regulations and standards promulgated by the Equal Employment Opportunity Commission (EEOC) regarding employment protection, the Department of Justice (state and local government services), the Department of Transportation, and the Architectural and Transportation Barriers Compliance Board.
"Disability" is defined in the Act to mean a physical or mental impairment that substantially limits one or more of a person's major life activities, a record of such an impairment, or the perception that one has such an impairment. This is the same definition included in section 504 of the Rehabilitation Act of 1973, and the Fair Housing Amendment Act of 1988. The applicability of the Americans With Disabilities Act (ADA) to sensitive nonsmokers is briefly described in the following paragraphs in relation to employment, government services and public accommodations and services, the main areas regulated affecting nonsmokers.
1. In general
The ADA is one of two federal employment laws which protect the disabled. The other is the Rehabilitation Act of 1973 (29 USC § 794) (RA) which specifically applies to handicapped persons.
The terms "disabled" used in the ADA and "handicapped" used in the RA were described by the Congressional (House) Committee concerned as "comparable". The Committee explained that:
The use of the term "disability" instead of "handicap" and the term "individual with a disability" instead of "individual with handicaps" represents an effort by the Committee to make use of up-to-date, currently accepted terminology. In regard to this legislation, as well as in other contexts, the Congress has been apprised of the fact that to many individuals with disabilities the terminology applied to them is a very significant and sensitive issue.
The decision by Congress to equate these two terms is, however, of great importance to sensitive nonsmokers because the decisions of courts and administrative tribunals which protected nonsmokers by application of the RA are thereby available as precedents for similar protection under the ADA.
Both statutes prohibit discrimination against handicapped or disabled persons and provide that employers must furnish reasonable accommodation unless it would cause undue hardship to the enterprise to do so.
2. Employers to whom laws apply
Generally, the RA applies to the federal government, federal contractors, state and local governments and other institutions receiving federal funds. The ADA applies from July 26, 1992, to employers engaged in an industry affecting commerce and employing 25 or more workers. From July 26, 1994, the ADA will cover employers of 15 or more workers.
Employment agencies, labor organizations and the States are covered by the ADA. It also applies to the U.S. Congress and other legislatures, but they employ internal procedures to enforce the Act.
Some employers, such as some federal contractors, may be covered by both Acts.
3. Employers to whom the ADA does not apply
The ADA does not apply to the federal government, government corporations, Native-American tribes, and tax-exempt private clubs. Also, religious organizations may give preference to their members in offering employment opportunities.
4. Discrimination prohibited
The ADA prohibits discrimination 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.
Both the ADA and the EEOC regulations made thereunder borrow terms from the RA to define a qualified person with a disability. Thus, disability means (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such impairment; or (3) being regarded as having such an impairment.
Physical or mental impairment is, in turn, defined as any physiological disorder or condition affecting one or more of the body systems including neurological, special sense organs, respiratory (including speech organs) and cardiovascular.
The major life activities limited include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.
Under the similar provisions of the RA, and regulations made thereunder, courts and administrative tribunals found that federal employees who were sensitive nonsmokers were entitled to relief (reasonable accommodation or disability retirement) under that Act.
The ADA (Title I) extends the protection of a federal law to a much more numerous class of employees in the private sector so that sensitive nonsmokers may require reasonable accommodation of their disability which may include making facilities accessible by banning smoking, restricting jobs, providing part-time or modified work schedules, reassigning an employee to a vacant position or other reasonable means of providing a sensitive nonsmoker with a workplace in which he or she can function.
If, however, an employer can show that making reasonable accommodations would impose an undue hardship on operating the business, the requirement will not apply. The term "undue hardship" means an action requiring significant difficulty or expense.
Since, providing an area free from tobacco smoke contamination is inexpensive to arrange (just the cost of a no-smoking sign) and employers benefit from considerable economic savings in establishing a smoke-free workplace, any finding that providing reasonable accommodation would impose an undue hardship should be rare in cases where a sensitive nonsmoker is involved.
The ADA incorporates the remedies in sections 705, 706, 707, 709 and 710 of Title VII of the Civil Rights Act of 1964 including injunctive relief and limited back pay.
The following are examples of cases where a court or federal agency accepted that a sensitive non-smoker was a disabled (then termed "handicapped") person who was eligible to ask for reasonable accommodation under the RA. Such cases are precedents for similar requests under the ADA.
a. Parodi v Merit Systems Protection Board 690 F2d 731 (9th Cir. 1982)
The U.S. Court of Appeals for the 9th Judicial Circuit held that a sensitive Federal Government employee who suffered from exposure to tobacco smoke in the workplace, was entitled to disability benefits unless the Government could show that an
appropriate substitute position was available.
As no appropriate position was available, the case was settled on the basis of the employee receiving a disability retirement pension plus a $50,000 lump sum payment .
b. Vickers v Veterans Administration 548 F. Supp.85 (1982)
A federal District Court held that a federal government employee whose hypersensitivity to tobacco smoke limited his capacity to work in any environment which was not completely smoke-free was a "handicapped person" for the purpose of the R.A., but that his employer, had, in fact, made reasonable accommodation.
c. Flaniken v Office of Personnel Management. U.S. Merit Systems Protection Board, Dallas Field Office. No. DA831L10001, (1980)
The MSPB found that a sensitive federal government employee was entitled to a disability retirement annuity where she had contracted chronic laryngitis caused by cigarette smoke and environmental pollution.
d. Pletten v Department of the Army U.S. Merit Systems Protection Board Nos. CH07528010099, CH01520 2901 (1981)
The MSPB found that a tobacco-smoke sensitive civilian, Army employee was a "handicapped person" for the purpose of the RA and that he was accordingly entitled to reasonable accommodation of his handicap. NOTE Although this Opinion was challenged (on other grounds) in subsequent E.E.O.C. proceedings it was affirmed by a further Board Order and was subjected to further challenges (on other grounds) in proceedings in the U.S. District Court, Eastern District of Michigan.
5. Can a smoker be a disabled person under the ADA?
Although a person addicted to tobacco may have some claim to sympathy (especially if he or she became addicted as a child before the legal minimum age for smoking) such person would not appear to be entitled to the benefits of the ADA.
The Act specifically provides (42 USC § 12201 (b)) that "Nothing in this Act shall be construed to preclude the prohibition of, or the imposition of restrictions on, smoking in places of employment covered by title I-----, in transportation covered by titles II or III, -----, or in places of public accommodation covered by title III ----."
There is therefore no intention of requiring an employer or other proprietor to arrange for the accommodation of a smoker's habit in the workplace, in public places or on transportation.
In the words of Nancy Lee Jones (Legislative Attorney with the Congressional Research Service of the Library of Congress) ADA provisions relating to Clean Indoor Air Acts appear "to be aimed at the protection of nonsmokers from passive smoking."
Under Title II of the ADA, no qualified person with a disability may be discriminated against by state and local governments.
As well as a general prohibition against discrimination Title II includes specific requirements applicable to public transportation provided by public transit authorities, commuter rail authorities and Amtrak.
These provisions, which incorporate the enforcement methods of section 505 of the RA make good deficiencies in the protection of sensitive nonsmokers who, before passage of the ADA, were exposed, with little redress, to health-threatening conditions on public transportation.
For example, ASH's files are full of complaints from sensitive nonsmokers who have had great problems travelling with Amtrak (particularly in relation to the fact that smoking in sleeping cars is permitted) and whose complaints seldom receive the attention they deserve.
Under Title III, disabled persons must not be discriminated against in the full and equal enjoyment of the goods, services, facilities, privileges and advantages of any public accommodations provided by private individuals or organizations.
The Act includes restaurants, hotels, doctors' offices, pharmacies, grocery stores, museums and homeless shelters.
This Title also may be cited to support a sensitive nonsmoker's right of access to these public facilities. To such a person, a cloud of tobacco smoke contamination constitutes as great a barrier to access as flights of stairs present to a disabled person in a wheelchair.
Any person subjected to discrimination on the basis of disability, may bring a civil action for injunctive relief.
Under Title V of the ADA, the courts and administrative agencies may award reasonable attorney's fees in any action or administrative proceeding under the Act.
The Act also encourages the use of alternative means of dispute resolution in cases arising under the Act, including settlement negotiations, conciliation, mediation, fact-finding and arbitration.
The ADA may be used to uphold the rights of sensitive nonsmokers, as persons with disability, in areas where there has, until now, been a dearth of remedies.
Persons who suffer from a severe sensitivity to tobacco smoke deserve to have their livelihoods protected, and to be allowed access to the public and private facilities of a free society.
The ADA recognizes and enforces their right to be integrated into the economic, social and cultural mainstream of society.
NOTE: This leaflet, which is distributed as a public service, contains general information for your interest. If you have any legal problems related to smoking you should consult an attorney who will be able to advise you as to the law applicable in your jurisdiction. AM 9/92
2013 H Street, NW / Washington,
DC 20006 / (202) 659-4310