Workplace Labor Update - Smoke Allergy – July 1994

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. 1994). 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 disabled individual. 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.