ASH LEGAL COMPLAINT AGAINST TOBACCO SMOKE
RESIDUE NOW KNOWN AS "THIRD HAND TOBACCO SMOKE" PROTECTS PREGNANT WORKER AND HER FETUS
Action on Smoking and Health (ASH)
came to the rescue when a pregnant woman was told by a doctor that her
health, and the health of her unborn child, was being threatened by the
tobacco smoke residue left on the clothing of a fellow worker when he
stepped outside for a smoking break. Her requests that she or the
smoking worker be moved to another office were repeatedly denied, and
she was threatened.
ASH immediate wrote a letter on the
woman's behalf to the employer. Within a day of receipt of the
letter, she was transferred to another office as she had
requested.
A REDACTED COPY OF THE LETTER APPEARS BELOW. A COPY OF THE
REDACTED LETTER IN PDF FORM - INCLUDING THE NUMEROUS LEGAL, MEDICAL AND
OTHER FOOTNOTES - CAN BE FOUND AT http://ash.org/residueletterPDF
In its letter, ASH cited legal
authority for the proposition that people who are sensitive even to the
residue of tobacco smoke ["Third Hand Tobacco Smoke"] are entitled to
legal protection, and can bring legal actions if they do not receive
this protection. It also cited numerous other legal authorities.
ASH's letter also quoted from two
doctors about just how dangerous exposure to even small amounts of
tobacco
residue can be. People considering requesting special
accommodations for their exposure to tobacco smoke residue - including
bringing legal actions - may wish to use these letters as examples.
LETTER ON ASH
LETTERHEAD
Dr. James M. Simmons, President
Lamar University
4400 MLK Blvd., P.O. Box 10009 BY OVERNIGHT DELIVERY
Beaumont, TX 77710
RE: Legal Actions
For Discriminating Against Pregnant Disabled Employee
Dear President Simmons:
I am writing because Action on
Smoking and Health (ASH) – which serves as the legal-action arm
of the antismoking community, and has filed numerous successful
complaints and other legal actions on behalf of nonsmokers [see, e.g., http://ash.org/victories.html]
– has been asked to file legal actions against you individually
and personally, as well as against your university, for seriously
endangering the health of a pregnant employee with disabilities, as
well as the health of her unborn child.
Prior to filing any complaints on her behalf, I wanted to be sure that
you were fully aware of the situation and the probable consequences of
refusing to provide any protection whatsoever for her or her unborn
child, and to respectfully request that you take what we believe is
both the moral and legally correct action of allowing her to work in an
office without smoking office mates.
In making this request, please be advised that individual
administrators who participate in decisions to violate the rights of
employees may be individually liable for monetary damages, attorneys
fees, and other remedies, as well as to the normal burdens of being a
named defendant/respondent in a legal proceeding.
Indeed, you may wish to note that my very recent threat to file only
one legal action against a single administrator at my own university
immediately forced that much larger institution to agree to post signs
limiting smoking outdoors. See, e.g., Thank
You For Not Smoking, http://www.insidehighered.com/news/2006/04/14/smoke
and Giving in at George Washington U.,
http://www.insidehighered.com/news/2006/04/25/smoke
Please note that, as with many of my other legal actions, I will also
not hesitate to share with the media your refusal to take even the
simplest action to protect a pregnant disabled employee – the
easily-ascertained fact that Google has
more than a quarter million listings for me and my many activities
provides clear evidence that my attempts to publicize this matter will
be equally successful.
Please be further advised that, should you and your institution fail to
take appropriate action in response to this letter, you may expect the
filing of:
(A) A formal legal complaint for workplace
discrimination under the Americans
With Disabilities Act (ADA) (which provides for the award of
attorneys fees as well as monetary damages), and applicable state
anti-discrimination statutes;
(B) A formal legal complaint under the federal Occupational Safety and Health Act;
a complaint which by law triggers an investigation of your institution;
(C) A formal legal complaint with the Office of Federal Contract Compliance,
Employment Standards Administration, U.S. Dept. of Labor, for
violation of Sec. 503 of the Federal
Rehabilitation Act (which may impact all federal funding your
institution now receives);
(D) Legal actions in appropriate courts of law.
FACTUAL BACKGROUND
Ms. XYZ has been employed since about September 1, 2005 as a Tech
Support Analyst in the department of XXX. Until very recently she
worked in Room XXX where she had no problems – and made no complaints –
with regard to any health problems.
Recently, she was abruptly ordered by her supervisor XXX – solely for
Ms. XXX’s administrative convenience, according to her damaging email –
to move to Room XXX. Also assigned to work in Room XXX is
ABCDEFG, an employee who smokes outside frequently during the day, and
therefore has on his person and clothing throughout the entire work day
the clearly discernable residue of tobacco smoke and the many toxic
chemicals it contains.
Ms. XYZ has severe documented allergies to tobacco smoke, and is also
pregnant – a condition which heightens her severe allergies to these
chemicals, and also means that exposure endangers not only her own
health, but also the health of her defenseless unborn child.
Indeed, she has two letters from prominent local doctors clearly
attesting to her condition. SEE
IMMEDIATELY BELOW:
“XYZ 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 effect
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.” Dr. XXX.
“Ms.. XYZ 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.” Dr. YYY.
Although Ms.XYZ has complained several times that this new arrangement
threatens her health and that of her child, her supervisor has been
unwilling even to discuss the matter. Indeed, in a very telling
email, she termed the new arrangement “an official directive not open
for discussion.”
Moreover, we understand that you and your office also refused, through
your secretary, Ms. XXX, to even discuss this problem with her,
as did Ms. XXX of your university’s human resources office, who told
her – incorrectly and contrary to the clear law – that she would have
to work out the matter with her supervisor (who may well be unaware of
the legal requirements).
Needless to say, you and your institution’s failure not only to make a
reasonable accommodation to an employee whose extreme sensitivity to
tobacco smoke residue qualifies her (as well as her unborn child) for
protection under the ADA, but to also refuse even to discuss the matter
and seek to work out a mutually satisfactory accommodation (as the law
requires) compounds the problems, and makes your conduct and that of
your institution even more egregious.
In any event, Ms. XYZ has now exhausted her legal and administrative
remedies, and has fully and forcefully brought this matter to the
attention of all relevant administrative officials. This letter
puts you on clear legal notice of these facts and requests immediate
action.
BRIEF LEGAL ANALYSIS
Many courts and agencies have found, often in legal proceedings
initiated or assisted by ASH, that persons who are especially
sensitive to tobacco smoke and its many constituent chemicals are
entitled to protection as handicapped or disabled persons, provided
that the sensitivity and exposure significantly affects their breathing
– a “major life activity.”
As such, the law requires their employer to make a reasonable
accommodation to their condition so that they can continue working
without adversely affecting their health. An accommodation is
unreasonable only if it would impose an "undue hardship" on the
employer. 42 U.S.C. §
12112(b)(5)(A) – something which clearly is not the case in the
instant situation.
Please note that 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, and that
employers who fail to provide it can be held liable for damages and
attorney fees. See, e.g., Service v.
Union Pacific Railroad Company, 153 F. Supp. 2d 1187 (E. Dist.
CA 2001).
The law provides that formal legal complaints may be filed under the
“general duty clause“ of the OSHA Act [29
USC § 654(a)(1)] which requires that “each employer shall
furnish to each of his employees employment and a place of employment
which are free from recognized hazards that are causing or likely to
cause death or serious physical harm to his employees,” and OSHA’s
regulations provide that an inspection must be made if a valid
complaint is received. [CPL 02-00-140].
In literally dozens of legal proceedings, both public and private
entities have been found liable for medical problems caused by
creating, maintaining, or permitting conditions which exposed
nonsmokers to the chemicals in tobacco smoke, often even when the
amounts of exposure were minimal. Indeed, the U.S. Supreme
Court has upheld a wrongful death verdict in favor of the estate of a
nonsmoker exposed for only several hours to drifting tobacco
smoke. Several courts have held that knowingly causing the
exposure of another to tobacco smoke can constitute the intentional
tort of battery, thereby opening the door to
potential punitive damage awards, and possibly removing any qualified
immunity for state employees.
In a recent law suit which has already resulted in a $300,000,000
settlement, the major tobacco companies have stipulated – and now
publicly admit on their web sites and in widely-broadcast television
ads – that secondhand tobacco smoke and the many chemicals in it are
linked to a wide variety of serious medical problems including cancer
in nonsmokers; a concession – and now common knowledge – which
plaintiffs/complainants can rely upon in any legal action.
RELIEF RESPECTFULLY REQUESTED FOR Mrs.
XYZ
For all of the reasons set forth above, it is respectfully requested
that Lamar University take one of the two very simple and reasonable
actions suggested below:
1. Immediately transfer Ms. XYZ to an office to
which a smoker who smokes during the day is not also assigned.
Room 110, where she worked initially, appears to be satisfactory.
2. Immediately transfer Mr. ABCDEFG, a male employee
who smokes outside frequently during the day, to an office other than
the one to which Ms. XYZ is also assigned.
Since Ms. XYZ’s original transfer, according to her supervisor’s email,
was made solely for the administrator’s convenience, it appears
virtually certain that Lamar University cannot claim – much less
establish – that either step would impose an "undue
hardship." Indeed, under all the circumstances – and
express requests by two eminent local physicians that, to protect her
health, she be assigned to an office without a smoker – either action
would seem to be a most reasonable accommodation, especially for her
brief remaining period of employment prior to giving birth.
Please be reminded that failure to take very prompt action in response
to this letter will result in legal action and adverse publicity.
It may also make the university liable not only for her own health
problems caused and/or exacerbated by on-the-job exposure to the
chemicals in tobacco smoke, but also for any birth defects, premature
and/or underweight birth, etc. of her soon-to-be-born child.
We thank you for your cooperation, and trust that we will receive a
very prompt written response.
Yours truly,
Law Professor John F. Banzhaf III
Executive Director and Chief Counsel
http://banzhaf.net
CC: Annette Thompson, Assoc. VP for Human Resources;
Brian Sattler, Director, Public Relations; John Whittle, Director, Risk
Management – Lamar University
Charles R. Matthews; Chancellor; Dr. Fernando Gomez,
Esq., Counsel; Dr. Charlotte A. Sullivan, Special Assistant to the
Chancellor; Peter Graves, Assoc. Vice Chancellor for Contract
Administration – Texas State U. footer
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.
All donations are fully tax deductible.
