quebecresponse

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

Below is a brief amicus curiae (including appendix describing ASH) filed with the Quebec Commission on Human Rights
For a PDF copy which includes footnotes, please click on: http://ash.org/quebecresponsePDF.pdf

February 9, 2009    BY OVERNIGHT DELIVERY

Quebec Commission on Human Rights
360, Saint-Jacques Street, 2nd floor
Montréal (Québec) H2Y 1P5

RE: BRIEF AMICUS CURIAE Opposing Previously-Filed Complaint Against Ad by Quebec Council on Tobacco and Health Seeking an Employee Who is Not Currently a Smoker

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 submit this letter in the nature of a brief amicus curiae in a proceeding involving the right of an antismoking organization to advertise for employees who are not current smokers.

It has been reported in the media that a complaint has been filed by “a website dedicated to smokers' rights” [ mychoice.ca,] against the Quebec Council on Tobacco and Health about an advertisement for a webmaster which stated that the applicant must be “either a non-smoker or an ex-smoker.”

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 Commission 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:
    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 disabilities (or handicaps), 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 handicap or disability
    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 nicotine
    J. there are many readily available ways to satisfy a nicotine addiction short of smoking.

A. THE COMMISSION 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 Charter of Human Rights and Freedoms 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 cannot be based, including, e.g., race, religion, gender, sexual orientation, etc. It is undisputed that “smoking,” status as a “tobacco user,” etc. are not included in the Charter 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 issue regulations governing children’s bicycles, ships, etc.

There are, however, a very few limited exceptions to the latter 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 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 Charter into which “choosing to smoke” fits, 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 legal protection. Therefore this agency should not recognize as a protected category those who smoke.

B. THE COMMISSION 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. Bureaucrats in 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 to effectuate it.

Thus fundamental decisions, like which groups are entitled to the additional and expanded legal protections afforded by the Charter, 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.

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.

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 Charter this agency enforces, it would not be appropriate for the Commission to add these categories to its mandate, just because another jurisdiction has chosen to do so and/or that it seems to personnel at the Commission that it is fair or just and reasonable to do so.

C. THE COMMISSION 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, civil rights statutes include groups to which a special protected legal status should be provided 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 Blacks 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 other women fit 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, because of arguments that neither is immutable.

Religion and political convictions are additional examples since, while one may choose to change his or her religion, a person’s belief about God and religious requirements or their basic political convictions are deemed fundamental.

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 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.

D. THE COMMISSION 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, 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.

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.

Indeed, 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 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 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 Charter, 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 short, smoking tobacco is just an activity like chewing and spitting tobacco, hunting, 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 Charter, nor to authorize the Commission to add it or to add any other new category.

E. THE COMMISSION 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 Commission were to rule that a bona-fide antismoking organization could not decline to hire a smoker – even though smoking is not a protected category under the Charter – it would be hard to prevent the Commission 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, 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 Commission 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 rounds 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 under any circumstances or drinks to excess.

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 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.

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, 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 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 the 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, 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.

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 when their physicians and surgeons are observed while they are smoking.

The World Health Organization (WHO), a massive organization 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 Commission 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.

F. IT WOULD BE IMPROPER TO SEEK TO PROTECT SMOKERS AS PERSONS WITH HANDICAPS OR 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 major effect or consequence on employees or visitors who are smokers than on those who are nonsmokers. 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, smokers might be able to demand a “reasonably accommodation” because of their alleged status as disabled people.

Thus, recognizing any such claim 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 HANDICAPS OR 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 HANDICAP

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.

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 “handicapped” or “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 to be a legally-protected disability, it would have to be so severe that most employment opportunities were foreclosed. Similarly, although many persons may lack the concentration, ability to work under pressure, 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.

But 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 “handicap” or “disability” even if the other criteria for a “handicap” or “disability” could be met.

H. 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 MOST SMOKERS WHO WISH TO ARE ABLE QUIT, ALBEIT PERHAPS WITH SOME DIFFICULTY

Tens of millions of persons have quit smoking. This means either that they were not truly addicted, or that they were able to quit despite their addiction. In either event, then, it is hard to argue that they had a “handicap” and/or “disability” since there could – if they wished – apply for employment even if its 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 are have no addictions.

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 managed to quit. In much the same way, the great majority of smokers can, if they try hard enough, can quit smoking, despite their addiction.

The reason for this apparent contradiction is that the strength of an addiction can vary, and in most cases a person with an addiction can quit, albeit with some medical assistance. This is true even of substances which many believe are more addictive than nicotine, such a heroin or cocaine. 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 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 of with outside assistance.

I. 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 THOSE WHO REMAIN SMOKERS ARE NOT ADDICTED TO SMOKING, BUT RATHER TO 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 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” working with semiconductors, etc.).

But, even the small percentage of smokers who are addicted, and whose addiction is so strong that they cannot quit, are addicted not to nicotine but rather than to the act of smoking – a vital difference 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) derived from smoking.

In short, no one has even been found to be addicted to smoking, 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 acts like smoking, shooting up, drinking, snorting, etc.

J. 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 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 Charter to cover a new classes – and against providing protection based upon a “handicapped” or “disabled” status for one who is addictive – are rejected, the complaint at issue should still be dismissed as unfounded for several reasons.

First, it appears that the complainant has not alleged – much less offered to prove – that he 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 his 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 “spitless” chewing tobacco. Thus a ban on people who smoke would not preclude any smokers 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 than continuing to administer nicotine by smoking.

Since the purpose of all such bans on smoking off the job is to reduce an employees 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 intervention, 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 inconvenience and/or lack of enjoyment are reasons to establish a new legal right, and compel antismoking organizations and others to hire someone who simply desired to continue smoking.SUMMARY AND CONCLUSION

ASH respectfully suggests that the Commission can not and should not purport to add a new category to the Charter to protect nonsmokers because:

A. The legislature not been delegated (expressly or by implication) any such authority to the Commission to do so, 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

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 religious or the expression of political convictions, every court of 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 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 in so more a “handicap” or a “disability” than addiction to caffeine or to noontime jogging since it doesn’t significantly interfere with employment prospects.

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 protected status related to smoking and addiction must be limited to those who are truly addicted to nicotine, and not to those not addicted who simply want to continue smoking.

J. Even nicotine addicts should not be protected since any addition to nicotine can be treated by administering nicotine through patches, gums, and chewing tobacco.

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 F. Banzhaf III, Chief Counsel

APPENDIX

EXCERPT FROM MOTION SEEKING LEAVE TO FILE A BRIEF AMICUS CURIAE

I. MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

        John F. Banzhaf III, Executive Director of Action on Smoking and Health (ASH) respectfully files this motion for leave to file a brief amicus curiae, together with the attached Brief Amicus Curiae, all in the strongest possible support for the proposed settlement.
        This motion for leave to file a brief amicus curiae will first provide the court with basic biographical information about the Movant, especially with regard to many other public interest areas of law in which he has been active and served without compensation. It will then provide more detail about his 30 years of experience and contribution to the war on smoking generally, and then to the novel aspect which he and his organization originated: the battle to protect the rights of nonsmokers, especially on airplanes.

A. BASIC BIOGRAPHICAL BACKGROUND — NOT RELATED TO SMOKING

        John F. Banzhaf III received his B.S.E.E. degree from the Massachusetts Institute of Technology (M.I.T.) in 1962. He has two U.S. patents, and has authored almost a dozen technical papers. He received his Juris Doctor degree magna cum laude from Columbia Law School in 1965 where he was an editor of the Columbia Law Review.
        While still at the law school he became the first person to demonstrate the viability of using copyright law to protect computer programs by successfully registering two copyrights on computer programs he wrote. This in turn also led to a prize-winning law review article, see Banzhaf, Copyright Protection for Computer Programs, 64 Colum. L. Rev. 1274 (1964). Thereafter he successfully asked Congress to amend the copyright law to deal expressly with data processing, and published one of the first articles on the legal problems created by computers. Banzhaf, When a Computer Needs a Lawyer, 71 Dick. L. Rev. 240 (1967).
        Also while still in law school, Prof. Banzhaf developed a new mathematical methodology -- now generally known as the "Banzhaf index" -- to measure voting power under systems of weighted voting, and then persuaded New York State's highest court to adopt it as a requirement for approving so-called weighted voting reapportionment plans, Iannucci v. Board of Supervisors, 229 N.E. 2d 195 (1967). See generally, Banzhaf, Weighted Voting Doesn't Work: A Mathematical Analysis, 19 Rutgers L. Rev. 317 (1965). Subsequently this technique of mathematical analysis was extended, and applied to the Electoral College (for electing the president), multi-member districting, and other voting systems. See Banzhaf, 3.312 Votes, A Mathematical Analysis of the Electoral College, 13 Villanova L. Rev. 303 (1968); Banzhaf, Multi-Member Electoral Districts -- Do They Violate the "One Man, One Vote" Principle?, 75 Yale L. J. 1309 (1966); Banzhaf, One Man, ? Votes: Mathematical Analysis of Voting Power and Effective Representation, 36 Geo. W. L. Rev. 808 (1968). In the intervening years Prof. Banzhaf has also used his background and abilities to assist in the analysis of other legal problems, including discrimination.
        In short, Prof. Banzhaf's educational background and experience provides him with special insights into problems of proof involving epidemiological matters; e.g., the problems of causation in situations involving secondhand tobacco smoke,
        For more than 25 years Banzhaf has served as a Professor of Law at George Washington University, teaching courses in torts (including product liability), administrative law, law and the disabled (a category he opened up to sensitive nonsmokers), and public interest law. Some of his major accomplishments in this latter area include:
    ■ Established legal "standing" for individuals and organizations to challenge harmful environmental actions which affect many or all individuals, and expanded the reach of the National Environmental Policy Act (NEPA) to reach governmental actions only indirectly affecting the environment. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973).
    ■ Brought legal actions to persuade the Federal Trade Commission to adopt the new remedy of "corrective advertising," under which a manufacturer found guilty of deceptive advertising may be required to confess his deception to the public in future ads, and to persuade the agency to provide funding for public interest participation. See Campbell Soup Co., 77 F.T.C. 664 (1970); Firestone Tire & Rubber Co., 81 F.T.C. 398 (1971).
    ■ Helped obtain a Special Prosecutor (now called "Independent Counsel") to investigate former president Richard Nixon and Attorney General Edwin Meese, and almost obtained one to investigate "Debategate," Banzhaf v. Smith, 588 F. Supp. 1489 & 1498, rev'd on other grounds, 737 F.2d 1167 (DC Cir. 1984).
    ■ Initiated the unprecedented law suit in which citizens, over the objection of the state, successfully sued former Governor and former Vice President Spiro Agnew to recover the money he unlawfully received in bribes. Agnew v. State of Maryland, 446 A.2d 425 (1982).
        For many years Prof. Banzhaf has been listed in "Who's Who," "Who's Who in American Law," and other biographical publications, and he has lectured and/or been quoted on a wide variety of legal topics both in the United States and around the world.
        In short, he has been an active participant in many different areas of public interest law, and his abilities have been widely recognized.

B. GENERAL BACKGROUND RELATED TO SMOKING

        Just after graduating from law school, John Banzhaf filed a petition with the Federal Communications Commission (FCC) regarding smoking. As a result, the agency ruled that all radio and TV stations broadcasting cigarette commercials must devote a significant amount of time -- free of charge -- to so-called anti-smoking messages. The ruling made it possible, for the first time, for such anti-smoking messages to be broadcast on radio and TV, and resulted in an estimated $200 million dollars worth of broadcast time for them. He then successfully defended that decision, Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir. 1968).
        The ruling in turn led several years later to a total ban on all cigarette commercials, causing Reader's Digest to profile him as "The Man Behind the Ban on Cigarette Commercials." When the constitutionality of that law was challenged, he was asked by the Court to serve as amicus curiae, and in this capacity was successful in defending the legislation, see Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (DC 1971), aff'd 405 U.S. 1000 (1972).
        In 1967 Prof. Banzhaf founded a non-profit tax-exempt scientific and educational organization known as Action on Smoking and Health (ASH). The purpose of ASH -- one which was unique at the time -- was to use the tremendous but largely untapped power of legal action against a major social problem: smoking. As a result, for more than 30 years, ASH under Prof. Banzhaf has served as the legal-action arm of the antismoking movement: bringing, assisting in, and encouraging legal actions directed against the many problems of smoking.
        Below is a partial list of some of the major victories he and ASH have achieved in the war on smoking generally -- NOTE that this section does NOT include many successful actions aimed at secondhand tobacco smoke and nonsmokers' rights:
    ■ 1968: ASH files a complaint with the FTC charging the Tobacco Institute with ghost writing and deceptively promoting pro-smoking articles in True and
National Enquirer. FTC upholds complaint, and urges a ban on cigarette
commercials.
    ■ 1972: ASH files a petition with the Department of Justice charging that television ads for "Winchester," a so-called "little cigar," violates the ban on cigarette advertising. The ads are eventually discontinued in February 1973.
    ■ 1974: ASH legal action forces the long-delayed release of HEW's report on smoking and health.
    ■ 1975: An ASH petition sparks an investigation by the National Institutes of Health into the dangers of carbon monoxide in cigarette smoke.
    ■ 1975: The FTC, in response to ASH's petition, sues the six major cigarette manufacturers concerning their billboard ads.
    ■ 1972 ASH assists a worker to obtain the first injunction ever issued against smoking in a workplace, Shimp v. New Jersey Bell Telephone Company, 368 A.2d 408 (1976);
    ■ 1976: Responding to an ASH petition, the FTC announces the beginning of a probe into the tobacco industry. The probe eventually results in the release of secret tobacco industry surveys.
    ■ 1977: An ASH petition results in strong warnings about the dangers of smoking while taking birth control pills.
    ■ 1981: An ASH-inspired lawsuit brought by the FTC against the six major cigarette manufacturers was settled with the companies agreeing to increase the size of warning notices on cigarette billboards.
    ■ 1983: ASH petitions the Federal Aviation Administration (FAA) to require smoke detectors in airplane lavatories. The rule is eventually adopted in 1985.
    ■ 1984: ASH helps persuade the National Association of Insurance Commissioners (NAIC) to call for higher health insurance premiums for smokers, a move which eventually results in this change by several companies.
    ■ 1989: ASH helps to defeat a "smokers' rights" bill in Maryland, a bill seen as the first step in a new tobacco industry strategy to give smokers the right
to sue on the basis of alleged discrimination.
    ■ 1989: ASH assists Congressman Tom Luken in documenting how tobacco companies pay producers to feature cigarettes and smoking in movies.
    ■ 1994: ASH used legal action to force the U.S. Park Service to discontinue permitting cigarette promotions in U.S. parks, see ASH v. Lujan, Civ. Aer. No. 91-0357 JGP (D.D.C. 1991).
        Of more recent interest, the Food and Drug Administration based its decision to regulate cigarettes primarily upon a new legal principle established in Action on Smoking and Health v. Harris, 655 F.2d 236 (D.C. Cir. 1980). Moreover, the tobacco industry's unsuccessful complaint against the FDA in court charges that ASH's "threats," "pressure," and "a carefully orchestrated public relations campaign" were behind the agency's action.
        Prof. Banzhaf has lectured and been widely quoted on topics related to smoking. Several months ago he presented -- at the special request of the 10th World Conference on Tobacco OR Health in Beijing -- a paper on the topic of litigation against the tobacco industry. He also presented four other papers -- a conference record.
        Professor Banzhaf was selected to serve on the so-called Koop-Kessler Committee on Tobacco Policy and Public Health, and fully participated in their proceedings. He was especially active on the subcommittee concerned with Environmental Tobacco Smoke, and helped to fashion the Committee's position on that issue.   In short, for more than 30 years, Prof. Banzhaf and ASH have been active and successful in the war on smoking, and are thus very familiar with many of the problems relating to that fight.

C. INVOLVEMENT WITH THE PROBLEMS OF SECONDHAND SMOKE

        In 1969 Prof. Banzhaf began what has now become known as the nonsmokers' rights movement -- especially as it pertains to airlines -- by petitioning the Civil Aeronautics Board (CAB) to provide separate no-smoking sections on aircraft. These efforts and other public pressures persuaded the major airlines to provide such sections even before the ASH-inspired CAB rule requiring them went into effect.
        Very shortly thereafter ASH followed up this initial success by obtaining nonsmokers' rights laws in the states of Arizona and South Dakota. Since that time Prof. Banzhaf and ASH have continued to lead the fight to protect the rights of nonsmokers -- especially in airplanes -- as the following list of principal successes indicates:
    ■ 1971: Responding to a request from ASH, United Airlines becomes the first carrier to institute smoking and no-smoking sections.
    ■ 1971: ASH publishes Tobacco and the Nonsmoker: Hazards of Smoke in the Air, the first major report on the hazards of ambient tobacco smoke. The first such report by HEW is issued by the Surgeon General in January 1972.
    ■ 1971: Secretary Elliott Richardson of the HEW accepts ASH's proposals to adopt the first restrictions on smoking in federal buildings.
    ■ 1972: The US Supreme Court agrees with ASH's brief and affirms that the law banning cigarette commercials is constitutional.
    ■ 1972: Led by ASH Trustee Betty Carnes, Arizona becomes the first state to pass a comprehensive law protecting nonsmokers.
    ■ 1972: ASH's John Banzhaf defends the Interstate Commerce Commission's (ICC) rule restricting smoking on buses before the US District Court. The rule is upheld in January 1974.
    ■ 1975: An ASH petition sparks an investigation by the National Institutes of Health into the dangers of carbon monoxide in cigarette smoke.
    ■ 1975: ASH reports to the Third World Conference on Smoking and Health that major antismoking organizations permit smoking in their own offices and meetings. The body condemns the practice.
    ■ 1976: With help from ASH, Donna Shimp, an office worker allergic to smoke, gets an injunction prohibiting smoking in her office.
    ■ 1976: Allegheny Airlines agrees to pay an $8,000 penalty and changes its no-smoking policy to settle complaints filed by ASH with the CAB.
    ■ 1976: The ICC responds to an ASH petition by strengthening its rules restricting smoking on trains by banning smoking entirely in dining cars and designated no-smoking cars.
    ■ 1977: An ASH request results in a ban on smoking aboard mobile lounges at Dulles International Airport.
    ■ 1978: ASH attorneys successfully assist in the defense of a Dade County, Florida no-smoking statute. The court says its constitutional.
    ■ 1979: Responding to a petition by ASH, the CAB requires special segregation for pipe and cigar smokers on planes. Shortly thereafter, many airlines ban pipe and cigar smoking entirely.
    ■ 1979: ASH negotiates settlement whereby TWA and Eastern Airlines are forced to pay large fines and provide more protection for nonsmokers. ASH complaints at the CAB yield additional settlements with three more airlines, bringing total fines to over $24,000.
    ■ 1980: Both TWA and Pan Am adopt new seating configurations to provide substantially increased protection for nonsmoking passengers, an action
triggered by complaints filed by ASH
    ■ 1981: ASH asks major air carriers to protect nonsmoking passengers from exposure to tobacco smoke while in airports. All the major carriers, except Eastern, eventually comply.
    ■ 1981: The Merit Systems Promotions Board of the Civil Service and the Dept. of Labor rule, in a proceeding in which ASH provided legal assistance, that employers must make reasonable accommodations to persons sensitive to tobacco smoke, see Pletten v. Department of the Army, U.S. Merit Systems Protection Board Nos. CH0 7528010099, CHO 1520 2901 (1981).
    ■ 1981: ASH takes the CAB to court to challenge the new rules which reduce the protection provided for nonsmoking passengers.
    ■ 1983: The US Court of Appeals unanimously rules in ASH's favor and orders the CAB to reinstate three previously effective anti-smoking regulations it rescinded in 1981, see ASH v. CAB, 699 F.2d 1209 (D.C. Cir. 1983);
    ■ 1985: ASH assists the Indian Health Service in creating a nationwide smokefree environment in their facilities.
    ■ 1985: ASH holds First World Conference on Nonsmokers' Rights in Washington, DC.
    ■ 1986: ASH attorneys assist Florida in successfully defending the
constitutionality of the Florida Clean Indoor Air Act.
    ■ 1987: ASH joins the American Public Health Association and the Public Citizen Health Research Group in asking the Occupational Safety and Health
Administration (OSHA) to ban smoking in common workplaces.
    ■ 1988: ASH helps defeat a law suit against the Metropolitan Transit Authority (MTA) in New York for eliminating all smoking cars.
    ■ 1989: ASH plays a major role in persuading Congress to ban smoking on domestic airline flights. The ban goes into effect in 1990.
    ■ 1990: The ICC, in response to an ASH petition, votes unanimously to ban smoking on all regular and special routes of interstate buses.
    ■ 1991: ASH Freedom of Information Act request forces EPA to release the technical compendium to its ETS report, a document which includes an estimate that ETS kills more than 50,000 Americans each year.
    ■ 1992: ASH attorneys provide new information and documents to the National Institute for Occupational Safety and Health (NIOSH). In its finalized report NIOSH concluded that ETS meets the criteria of OSHA for classification as a potential occupational carcinogen.
    ■ 1993: As a direct result of ASH pressure, several fast-food restaurant chains either experiment with or completely ban smoking in their outlets.
    ■ 1994: As the result of a rule-making proceeding initiated by ASH, and a law suit against the agency also filed by ASH, OSHA formally proposes a rule to ban smoking in the workplace. ASH was also instrumental in obtaining adoption of such a rule in Maryland.
        In short, Prof. Banzhaf and ASH have been the major leaders in all aspects of the nonsmokers' movement for more than 25 years, and have worked to develop many of the major legal theories to protect the rights on nonsmokers. Prof. Banzhaf has frequently been asked to testify, make speeches, appear in broadcast news features, and debate on the issue of nonsmokers' rights.

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