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No-smokers rule illegal but not discriminatory

A long-term battle over smoking in the workplace ended with a recent court victory for an employer. The conflict began 12 years ago when Amy Lipson, an acknowledged smoker, applied to the Westbury, Long Island, branch store of Fortunoff Fine Jewelry & Silverware Inc. Her application for a pantry job in the store’s cafe was turned down when she disclosed that she smoked at home. Fortunoff, at the time, had a no-smokers-need-apply corporate policy.
The store also had a no-smoking-at- work policy and claimed its two corporate policies were inextricably linked, that is that employees who smoked at home would be more likely to violate the no-smoking-at-work policy.
Lipson promptly took her case to the New York State Division of Human Rights. Ten years later, after a lengthy evidentiary hearing, the division’s administrative law judge held that For-tunoff had unlawfully discriminated against Lipson because Fortunoff perceived her to be disabled, a perception based on associating disability with ad-diction to smoking.
The division upheld the administrative law judge’s 1994 ruling, thereby avoiding the issue of whether Lipson was actually disabled because of her smoking. The division ordered Fortunoff to pay Lipson $10,000 in compensatory damages. Fortunoff appealed.
This year, the division’s determination was unanimously reversed by a New York Appellate Court. The court noted that the sole issue was whether Fortunoff’s refusal to accept job applications from persons who smoked outside the workplace violated New York’s discrimination laws.
The court upheld Fortunoff’s no-smokers-need-apply policy because it ruled that Lipson was not disabled. She smoked, but no one could seriously argue that all people who smoke are disabled, the court decided. The court said Lipson’s status as a smoker outside of the workplace does not constitute a disability under New York’s law prohibiting discrimination against the disabled.
The court held that Lipson could not simply rest her case on her status as a smoker. To mount a viable disability claim, it ruled, she would have to show that her smoking interfered with a major life activity or similarly restricted her ability to function normally.
The court also held that Fortunoff had not wrongly perceived Lipson as a person with a disability, and that knowing that someone smokes does not create a perception that the person is disabled, since smoking itself is not automatically a disability.
The court ruled that the Division of Human Rights had wrongly altered Fortunoff’s simple perception that Lipson smoked at home to a more complicated perception that Lipson was hopelessly addicted to smoking. When she applied for the pantry job, Lipson had not told Fortunoff she was a compulsive and obsessive smoker. She admitted only that she smoked. She neither claimed to have a disability nor provided Fortunoff with any reason to believe, even incorrectly, that she was disabled. The court’s conclusion that New York’s law prohibiting disability discrimination does not apply to a smoker is correct.
However, in 1992 New York enacted a new law that protects smokers. The Legal Activities Law was passed with the strong support of the tobacco industry to prevent employers, among others, from refusing to hire applicants because of their legal activities (such as smoking) away from the workplace. Fortunoff quickly rescinded its no-smokers-need-apply corporate policy once the Legal Activities Law went into effect.
So, today, if Lipson is still a smoker, she can reapply to Fortunoff with the knowledge that her application cannot be rejected because of her smoking habit. Employers, take note! However, if Lipson is still a smoker and has since moved to a state that does not have a statute like the Legal Activities Law, disclosing her smoker status could keep her in the ranks of the unemployed.
The Division of Human Rights’ determination that all smokers are perceived as persons with disabilities would have opened the disability-discrimination laws to millions of new plaintiffs, even if those plaintiffs smoked one cigarette a day or smoked pipes or cigars without inhaling. But the disability laws were never meant to cover all smokers, and protections for smokers must be found under laws other than the disability-discrimination laws, like the Legal Activities Law.
Although not cited in the court’s written decision, the court’s conclusion closely follows the analysis provided by an Equal Employment Opportunity Commission letter in October 1995. That letter stated that smoking itself “is not a disability” under the Americans With Disabilities Act “because smoking is an activity, not an impairment.” The EEOC noted it had not taken any position on whether nicotine addiction (which “may be an impairment”) is itself covered by the ADA.
With respect to smoking, the EEOC’s letter similarly rejects any perceived disability claim. It states: “The fact that an employer knows or believes that someone smokes does not mean that the employer regards the individual as having an impairment (i.e., addiction) which substantially limits a major life activity. It simply believes the employer knows or believes someone smokes. No ADA coverage would be triggered under these circumstances.”
Lipson’s claim arose many years before the ADA was enacted. However, the ultimate result–a victory for Fortunoff–would have been exactly the same under the ADA. This is good news for employers who would prefer not to provide “reasonable accommodation” (as required by the ADA) for employees who vaguely claim to have an “impairment” simply because they are smokers.
But, should they claim nicotine addiction and should that be found to be an “impairment,” that good news could turn into bad, with a battle over what employers must do to provide those particular smokers “reasonable accommodation.”
(Justin P. Doyle is a partner with Nixon, Hargrave, Devans & Doyle LLP. His partner, John Canoni, assisted with this article.)

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