May 2000

Grant Results

National Program

Tobacco Policy Research and Evaluation Program

SUMMARY

Between 1994 and 1996, the Tobacco Control Resource Center, Inc., Boston, summarized and analyzed litigation developments involving smoking policies in the workplace, specifically the Americans with Disabilities Act (ADA) and state anti-discrimination laws.

The project was part of the Robert Wood Johnson Foundation's (RWJF) national program Tobacco Policy Research and Evaluation Program.

Key Findings

  • The study found that current disability and anti-discrimination laws can safeguard individuals with respiratory disabilities affected by environmental tobacco smoke (ETS).
  • Because millions of Americans have respiratory and cardiovascular diseases that may be affected by ETS (more than 300,000 children alone have asthma that is attributable to ETS exposure), tobacco control strategists and advocates of smoke-free environments see this area of litigation and education as a very important component of their goal to significantly improve the nation's indoor air quality.
  • A monthly annotated list of past and current legal cases involving disability discrimination claims and ETS was prepared and distributed to attorneys, health officials, and tobacco control advocates.
  • A toll-free number was set up for free information about ETS and the law, logging more than 300 inquiries. The findings were published in The Journal of the American Medical Association, TRIAL, and elsewhere. The principal investigator made numerous presentations.

Funding
RWJF funded this project with a grant of $113,804 between October 1994 and October 1996.

 See Grant Detail & Contact Information
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THE PROBLEM

The 1992 US Environmental Protection Agency's report, Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders, concluded there are proven health risks to all Americans of environmental tobacco smoke (ETS) and declared ETS to be a Group A (or known human) carcinogen for which there is no safe level of exposure. More than 50,000 deaths in the United States are attributed to ETS annually. Individuals with respiratory or cardiovascular disease are especially prone to ETS injury. Many such individuals would be considered disabled under the Americans with Disabilities Act (ADA) and could invoke the legal protection created by the ADA and anti-discrimination laws at both the state and federal levels. The ADA, which took effect July 26, 1992, provides that neither employers nor owners of places of public accommodation can discriminate against individuals with disabilities, effectively outlawing policies that tend to exclude (or limit participation of) these individuals.

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THE PROJECT

The purpose of this project was to analyze the potential of individuals whose disabilities require smoke-free environments to obtain such environments at work, in public buildings, and in places of public accommodation by applying the legal power of the ADA and state anti-discrimination laws to the issues of tobacco control and ETS. Researchers analyzed the ADA's legislative history and the two most relevant predecessor statutes: the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973. They tracked existing ADA claims related to ETS and the way courts have handled analogous ADA claims. Analysis of this research provided the basis for the project's products and publications.

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FINDINGS

  • Several courts have agreed that ETS-related claims may be actionable under the ADA. If ETS prevents an otherwise qualified disabled individual from taking, retaining, or applying for a job, or from entering or making full use of a place of public accommodation, a violation of the ADA has occurred. "Disability" includes "a physical or mental impairment that substantially limits one or more of the major life activities of such individual," which includes conditions that affect the respiratory or cardiovascular systems.
  • The conditions that constitute disabilities cannot be specified or categorized because the biological causes of physical and mental impairments change, as do the social conditions in which people experience the impairments. The determination of disability must be made case-by-case based on the specific physiological and social conditions involved.
  • A careful review of the ADA's application to ETS-related claims shows that such claims neither trivialize the ADA nor impose enormous burdens on American businesses, two of the criticisms of applying the ADA in this way. While individuals filing ETS-related claims may not have a traditional disability, the courts have, in effect, required that their disability be as limiting and as pervasive in its impact as are most traditional disabilities, thereby protecting the concept of disability overall. Furthermore, most accommodations necessary to enable individuals with ETS-related disabilities to work or participate in public activities are modest and low cost.
  • In several cases, the filing of ETS-related ADA claims and lawsuits has resulted in the implementation of a workplace smoking ban by the employer or the designation of a smoke-free environment by the public entity. While the Act states that the ADA shall not be read to afford smokers with any right or claim to smoke, it does not prevent individuals with disabilities from requesting the elimination of smoking as a reasonable accommodation.
  • Lower courts have, in several cases, misapplied Social Security disability standards to ADA claims in the area of employment discrimination on the basis of disability. These decisions mean that claimants are not considered disabled if they are able to find work with another employer. This is contrary to both the spirit and the letter of the ADA, which requires employers to make "reasonable accommodations" to employees who can perform their job with such an accommodation. The project director filed an amicus curiae (friend-of-the-court) brief with regard to this type of case wherein the US Court of Appeals for the Seventh Circuit overturned the lower court's decision.
  • The US Equal Opportunity Employment Commission — the enforcement agency for the employment provisions of the ADA — has not taken action against any employer that permitted smoking in work areas in which an individual with severe ETS-related medical conditions was present, instead issuing "right to sue" letters informing claimants of their right to take their employers to court. Although several claimants have brought suit against their employers, to date none have gone to trial.

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AFTER THE GRANT

The tobacco control research center (TCRC) has ongoing efforts to track and analyze ETS-related ADA litigation and to develop strategies to use the powers of the ADA to improve indoor air quality. Project director Richard Daynard, J.D., Ph.D., (president of the TCRC) has received a RWJF grant (ID# 031610) under the substance abuse policy research program to conduct an empirical study of effective responses to the tobacco industry's legal challenges to local tobacco control.

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GRANT DETAILS & CONTACT INFORMATION

Project

Analysis of the ADA's Implications for Environmental Tobacco Smoke Policy

Grantee

Tobacco Control Resource Center, Inc. (Boston,  MA)

  • Amount: $ 113,804
    Dates: October 1994 to October 1996
    ID#:  024787

Contact

Richard A. Daynard, J.D., Ph.D.
(617) 373-2026

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BIBLIOGRAPHY

(Current as of date of this report; as provided by grantee organization; not verified by RWJF; items not available from RWJF.)

Books and Reports

Gottlieb MA. Amicus Curiae brief of the Tobacco Products Liability Project in support of the appellant to the US Court of Appeals for the Seventh Circuit in Homeyer v. Stanley Tulchin, Inc. Tobacco Products Litigation Reporter. 11.2: 3.204–3.206.

Gottlieb MA. "Re: Accessibility for Persons with Respiratory Disabilities." Comments submitted to the US Department of Transportation supporting rulemaking designed to create a smoke-free path to aircraft throughout the United States. Docket No. OST-96-1880.

Book Chapters

Carlson R, Sweda E and Gottlieb M. "ETS and the Law." In press, Smoke-free Air Everywhere. New Jersey GASP and the American Cancer Society.

Articles

Gottlieb MA and Daynard RA. "Blowing Smoke Out of the Workplace." TRIAL, 32(8): 24–29.

Parmet WE, Gottlieb MA, and Daynard RA. "Accommodating Vulnerabilities to Environmental Tobacco Smoke: A Prism for Understanding the ADA." Cleveland-Marshall College of Law Journal of Law and Health, Spring 1997.

Parmet WE, Daynard RA and Gottlieb MA. "The Physician's Role in Helping Smoke-Sensitive Patients To Use the Americans with Disabilities Act to Secure Smoke-Free Workplaces and Public Spaces." Journal of the American Medical Association, 276(11): 909–913, 1996. Abstract available online.

Sweda EL. "ETS Disability Discrimination Cases." Boston, Mass.: Tobacco Control Resource Center. Updated monthly.

Yurdin SM. "Smoking Restrictions Under the ADA — Clearly Permitted, Sometimes Required." Mealey's Litigation Reports: Tobacco, 9(8): 1995.

Brochures and Fact Sheets

Gottlieb MA. "The Americans with Disabilities Act (ADA): How It Can Protect You from Second-hand Smoke." Brochure produced for distribution to the American Lung Association, 1996.

Presentations and Testimony

Richard Daynard, "A review of the project's ADA/ETS research," at the Tobacco Products Liability Conference, 1994; Tufts Medical School Conference on Environmental Tobacco Smoke, 1994; Stop Teenage Addiction to Tobacco (STAT) Conference, 1995; a meeting of the Tobacco Advocacy Institute, University of North Carolina, 1995; and the Tobacco Control Resource Center Special Attorneys General Conference, 1995.

Press Kits and News Releases

A news release, "US Court of Appeals Allows Nonsmoker to Use Americans with Disabilities Act to Clear the Air in Restaurants," was issued by the Tobacco Control Resource Center through PR Newswire, April 8, 1995.

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Report prepared by: Beth Brainard
Reviewed by: Janet Heroux
Reviewed by: Marian Bass
Reviewed by: Molly McKaughan
Program Officer: Robert Hughes
Evaluation Officer: Marjorie Gutman

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