SMOKERS ARE NOT ENTITLED TO LEGAL PROTECTION

An appellate court in New York State has just issued an important opinion holding that smokers are not entitled to legal protection either as "addicts" or as "disabled people."

The case is Matter of Fortunoff Fine Jewelry, NY Appellate Division, Second Department. The unsigned opinion was joined by Justices O'Brien, Santucci, Joy, and Florio.

The following is the text of a press release ASH issued describing the decision.

TEXT OF PRESS RELEASE FOLLOWS:

Smokers Are Not Entitled to Protection As "Addicts" or "Disabled," Court Rules

Even Off-The-Job Smoking Is Not Protected Unless Covered by Specific Statute

A New York appellate court has ruled unanimously that smokers are not entitled to protection against discrimination as "addicts" or as "disabled persons," even if they only smoke in their own homes and not on the job.

The ruling reversed an order requiring the Fortunoff department store chain to pay $10,000 to a job applicant who smoked at home.

The court said that the defendant's status "as a smoker outside the workplace," standing alone, is not enough to establish a disability under state anti-discrimination law. The court's decision was also based upon:

  • an opinion issued by the U.S. Office of Contract Compliance, the agency responsible for enforcing the federal Rehabilitation Act, that a smoker is not a ''handicapped'' person;
  • the New York State Attorney General's position in another suit that, under the anti-discrimination statute, smokers are not disabled;
  • a separate statute designed to cover this specific situation.

    Action on Smoking and Health (ASH), a national nonsmokers' rights organization, hailed the ruling, saying that it may help put an end to claims that there is some kind of right to smoke þ whether the smoking occurs in public, in a private office, or even in the home þ or that there is some requirement that smokers be protected or accommodated.

    ASH helped to develop the legal principle under which nonsmokers who are susceptible to tobacco smoke are entitled to protection from secondhand tobacco smoke as "disabled persons."

    As evidence has continued to mount that many smokers are addicted to the drug nicotine, some commentators have speculated that smokers could be classified as "addicts," and therefore entitled to protection under various anti-discrimination statutes.

    However, ASH notes, smokers are not addicted to smoking. Rather, some smokers are addicted to nicotine, but they can now satisfy that addiction without smoking.

    Nicotine is now available to those who are addicted to it in the form of nicotine patches, nicotine gum, and even nicotine inhalers, and nicotine gum is now available over the counter without the need for a prescription.

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