Does an employer's failure to provide a smoke-free workplace
constitute discrimination against employees allergic to smoke?
Recently, the federal appeals court with jurisdiction over the
mid-Atlantic region indicated that, generally, the answer is no.
Gupton v. Commonwealth of Virginia, 2 A.D. Cases 1672 (4th Cir.
Betty Gupton was employed by the Virginia Department of
Transportation ("VDOT") as a highway utilities specialist at the
agency's Fairfax office. Gupton, who claimed that she was
allergic to tobacco smoke, requested that she be assigned to a
cubicle in a non-smoking office area. Gupton's supervisor
honored her request, designating an office wing "non-smoking" and
assigning Gupton there. Gupton maintained that she was still
affected by tobacco smoke despite this new office arrangement.
Consequently, she took unpaid leave and did not return to work.
Gupton subsequently sued in federal court, claiming that the
VDOT's failure to provide a smoke-free environment was
discrimination on the basis of disability and violated the
Rehabilitation Act. The trial court dismissed her claim and the
appellate court affirmed that decision.
The federal Americans with Disabilities Act (ADA) and the
Rehabilitation Act (which applies to government contractors and
recipients of federal financial assistance) both prohibit
discrimination in employment against individuals with
disabilities. Both the ADA and the Rehabilitation Act define an
individual with a disability similarly, as "any person who . . .
has a physical or mental impairment which substantially limits
one or more of such person's major life activities," however,
neither the ADA nor the Rehabilitation Act specifically address
whether an allergy to tobacco smoke is a disability.
In deciding this issue, the appellate court reviewed the EEOC's
regulations regarding impairment of "major life activities." The
EEOC has defined "major life activities." Gupton contended that
she qualified as a disabled individual because she showed that
her allergy to tobacco smoke was a physical impairment which
substantially limited the major life activity of working.
Rejecting that claim, the Court noted that other courts have
almost unanimously agreed that for a plaintiff to establish that
she has an impairment that substantially limits her ability to
work, she must show more than merely that the impairment barred
her from one particular job. That is, Gupton had to show her
allergy generally foreclosed her opportunity to obtain the type
of employment involved. Because she failed to demonstrate such a
limitation and she did not assert that her allergy limited any
other "major life activities," the Court found that she was not a
Editor's Note: Neither the ADA nor the Rehabilitation Act
attempts to list every disability intended to be covered, and
courts generally take a broad view when considering whether
someone is disabled. The issue of whether an allergy is a
covered disability is decided on a case-by-case basis, and some
employees have successfully argued that an allergy to tobacco
smoke is a disability.
Notably, the State of Maryland is considering banning smoking by
employees in the workplace as a safety measure. A number of
political subdivisions already have passed laws restricting
smoking in the workplace. Thus, aside from the protections of
disability discrimination laws, permitting smoking in the
workplace could become statutorily prohibited in the future. We
will keep our readers informed of any developments in this area.