A Massachusetts wrongful termination case may be the first court test of whether a private employer's policy of refusing to employ smokers is an unreasonable intrusion into the personal lives of employees.
Unlike 29 states and the District of Columbia, Massachusetts does not have a “lifestyle discrimination” law protecting smokers from employer interference in their habit. But Scott Rodrigues, 30, is suing a lawn-care company under the state's privacy statute.
The Scotts Co. fired Rodrigues in September for violating its no-smoker policy by testing positive for high levels of nicotine. A growing number of companies around the country, citing the need to reduce healthcare costs and increase productivity, have adopted similar policies.
“[T]his case challenges the right of an employer to control employees' personal lives and activities by prohibiting legal private conduct the employer finds to be dangerous, distasteful or disagreeable,” Rodrigues' complaint, filed in Suffolk Superior Court, says.
To prevail, Rodrigues will have to show that Scotts intruded into an area of life in which he has a legitimate expectation of privacy and, if it did, that the scrutiny of his smoking was “unreasonable, substantial or serious.” The precedent of similar public-sector cases, however, suggests that is a tall order.
“Given that individuals must reveal whether they smoke in almost every aspect of life in today's society, we conclude that individuals have no reasonable expectation of privacy in the disclosure of that information when applying for a government job,” the Florida Supreme Court said in City of North Miami v. Kurtz, 653 So.2d 1025 (1995).
According to Rodrigues, he only smoked away from his job as a “lawn service technician” and had cut back from a pack of cigarettes a day to about half a dozen when he failed a urine test for nicotine. Scotts fired him before its no-smoker policy had even officially taken effect.
"I don't think anybody ought to be smoking cigarettes, but as long as it's legal, it's none of the employer's business as long as it doesn't impact the workplace,” Rodrigues attorney Harvey A. Schwartz told the Boston Globe.
In another public-sector case, the 10th U.S. Circuit Court of Appeals upheld the firing of a firefighter for smoking. “[G]ood health and physical conditioning are essential requirements for firefighters,” it noted in Grusendorf v. City of Oklahoma City, 816 F.2d 539 (1987).
Rodrigues could certainly argue that such qualities are not essential for lawn care workers. But lesser job requirements made no difference in Kurtz, which involved an applicant for a clerk-typist position, and Scotts' interest in cutting healthcare costs should outweigh any privacy interest that employees have in smoking.
In the Florida case, the city of North Miami estimated the cost of each smoking employee at as much as $4,611 a year -- which is certainly an impact on the workplace. “What we're really saying is we're not willing to underwrite the risks associated with smoking," a Scotts spokesman said.
By Matthew Heller
12/3/06
A middle school official took a “substantial step” toward molesting a boy when he solicited sex from him over the telephone, a divided federal appeals court has ruled in granting a new trial on another boy's civil rights claims.
The John Doe plaintiff claimed Brady Smith, dean of students at Franklin Middle School in Champaign, Ill., repeatedly molested him, but a jury found no liability on his claims after the trial judge excluded evidence of Smith's prior conviction for indecent solicitation.
In a Nov. 28 opinion, the 7th U.S. Circuit Court of Appeals reversed, with Judge Ann Claire Williams writing for a 2-1 majority that the solicitation “constituted an attempt to commit a sexual offense against a minor.” Smith was convicted of offering to pay another middle schooler for sex in a recorded phone conversation.
Judge Kenneth F. Ripple warned in a dissent that the majority opinion “could very well have a deleterious effect on this court’s criminal jurisprudence” since, under its reasoning, “solicitation of a murder over the telephone would constitute attempted murder.”
Under the Federal Rules of Evidence, “evidence of [a] party’s commission of another offense or offenses of sexual assault or child molestation is admissible” in civil cases. Such offenses include an attempted assault or molestation.
The 7th Circuit had not ruled before on whether soliciting a crime amounts to attempting to commit a crime. But noting the “inherent risk of exploitation when an adult solicits sex from a minor,” Williams held that
a defendant attempts to sexually assault a minor -- that is, takes a substantial step toward committing the crime -- when he solicits the child’s complacency.
Smith's “conduct went beyond thinking about or planning to have sex with a minor,” she observed.
Ripple, however, said the evidence in the record showed Smith did nothing more than “talk salaciously with and solicit a minor over the telephone -- and words alone do not rise to the level of being legally sufficient to constitute a 'substantial act' in furtherance of the crime of sexual assault.”
The majority's ruling, he argued, “would represent an unwarranted expansion of criminal law, for the Supreme Court has long defined an attempt as requiring an 'overt act' in furtherance of a crime.”
By Matthew Heller
12/3/06
