A Proposal for On and Off work Smoking Ban for Federal Government
Employees
Bradley R. Sidle
J.D. Candidate May 2005
Abstract:
Limitations on
smoking in the workplace have become commonplace. Both private and public employers have either
eradicated smoking from the workplace altogether or placed substantial
limitations on the areas in which smoking can take place. The federal government has restricted smoking
in transportation systems and many government buildings. These policies, although not free from
controversy, have started to gain acceptance as the standard, not the
exception, for workplaces across
However, the movement to curb smoking has not stopped at regulation in the workplace. Employers have also taken a different approach to the problem of smoking: a total ban on smoking by their employees – on and off the job. These so-called “off work” smoking bans are clear departures from previous “at-work” smoking polices. Employees are not only judged by their conduct while at work, but also their conduct in their private lives behind closed doors.
The State of
However, a
federally mandated on and off work smoking ban faces many challenges. First and foremost, such a policy would be
subject to a challenge under the United States Constitution – specifically, the
right to privacy. Although the right to
privacy is not explicitly found in the Constitution, it has been widely
recognized that various provisions of the Constitution guarantee some form of
privacy. The question of whether the
private practice of smoking while off work falls under the protection of the
right to privacy has yet to be addressed by the Supreme Court of the
However, it is unlikely that a challenge to an on and off work smoking ban, based on the grounds that it infringed on an individual’s right to privacy, would be successful. It is doubtful that smoking would be considered a fundamental right like decisions regarding marriage, procreation, contraception, family relationships, child rearing, and education. Therefore, an on and off work ban on smoking for federal government employees would only have to satisfy a rational basis test to pass Constitutional scrutiny. The utility of smoking is next to nothing and therefore, it is easy for competing interests to outweigh the right to smoke. Moreover, the costs of smoking cannot be understated. Given this backdrop, it is easy to articulate a rational basis for an on and off work smoking ban.
Even if the right to smoke were deemed a fundamental right, it would still be possible for an on and off work smoking ban to satisfy the strict scrutiny requirement dictated by the infringement on a fundamental right. Although recent Supreme Court decisions have expanded the right to privacy, it is still doubtful that the smoking status of a federal government employee or prospective employee would fall under the penumbra of the right to privacy. A review of the major cases that have addressed on and off work smoking bans affirms this position.
Additional arguments against a on and off work smoking ban have little merit. First, critics argue that such a ban would lead to a slippery slope of employment regulation – leading employers to take into consideration a number of off work behaviors. This argument is flawed because smoking is not like other off work activities. The harms of smoking are far greater than those presented by other off work activities and smoking is often not an entirely off work behavior. Other critics argue that an on and off work smoking ban would be unpopular. While this may be true, sound policies are often unpopular. The popularity of a policy does not implicate its effectiveness.
There have been
two major cases that have addressed the issue: Grusendorf v. City of Oklahoma City and City of
In an action for declaratory, injunctive, and monetary relief, the plaintiff alleged that the defendant had violated his rights to privacy and due process under the Fourteenth Amendment. The district court granted the defendant’s motion for summary judgment and the Tenth Circuit affirmed. The Tenth Circuit found no right to privacy implicated by the on and off work smoking ban.
Similarly, the
Florida Supreme Court upheld a City of
Although the Florida Constitution grants an explicit right to privacy, the Florida Supreme Court held that the plaintiff’s privacy rights were not implicated under the Florida Constitution. The court went on to address the issue of whether the statute implicated the plaintiff’s privacy rights under the United States Constitution. Again, the court found that the plaintiff’s privacy rights under the United States Constitution were not implicated by the on and off work smoking ban.
An on and off work smoking ban would be a bold statement from the federal government that smoking is not a lifestyle choice which it will condone. Providing a clear, consistent message against smoking is an important step in combating the overall problem of big tobacco and the promotion of smoking in general. Moreover, the benefits of an on and off work smoking ban for federal government employees are particularly appealing. First, such a policy would be justified as a protection of the public fisc. There are numerous studies that show the costs of employing smokers over non smokers: decreased productivity, increased insurance costs, more absenteeism, increased number of accidents, etc. Therefore, an on and off work smoking ban for federal government employees would create a healthier, more effective workforce. This in turn decreases costs to the taxpayers, who end up bearing the costs of employing smokers.
Second, the government would be setting an example for private industry to follow. Private industry currently may not realize the costs of employing smokers. As a result, employers may make the myopic decision to hire a smoker without realizing the long-term cost associated with a smoking workforce. Having the federal government spearhead the effort would pave the way for vast acceptance and recognition amongst private industry of the ills of employing smokers.
Finally, an on and off work smoking ban for federal government employees would clearly signal that the costs of hedonistic lifestyle choices with little utility should not be borne by the people of the United States. Smoking is a lifestyle choice – a choice that has been shown to cost tens of billions of dollars a year in healthcare costs and productivity. It is time that the federal government follow what private industry has already started to do: ban smoking both on and off work for its employees. The result will be a healthier and more productive workforce.
I. Introduction:
Limitations on smoking in the workplace have become commonplace. Both private and public employers have either eradicated smoking from the workplace altogether or placed substantial limitations on the areas in which smoking can take place. A number of private employers will refuse to hire smokers.[1] It is commonly accepted that many private employers have smoking policies of some sort. Anymore, it almost goes without saying that cigarettes must be extinguished upon entering an office building.
The federal
government has followed along in the regulation of smokers in the
workplace. The federal government has
restricted smoking in transportation systems and many government
buildings. In fact, the General Services
Administration, which affects thousands of federal buildings and millions of
federal employees, has implemented a smoking policy recognizing the health
hazards of passive smoke on the non smoker.[2] Additionally, the Army has also implemented a
broad smoking policy.[3] These policies, although not free from
controversy, have started to gain acceptance as the standard, not the
exception, for workplaces across
Now, a new breed of smoking regulation has started to emerge: the regulation of off work smoking by employers. This paper looks at the advantages and possible challenges of an on and off work smoking ban at a federal government level. While such a proposal would clearly be a bold step by the federal government, this paper serves to demonstrate that such a policy would not be indefensible. On the contrary, the current legal landscape suggests that an on and off work smoking ban for employees would be completely legally sound and the notable cases on the topic have found challenges to such policies unsuccessful.
Part II of this
paper addresses smoking in the
II. Smoking in the
A. A Brief History of Smoking in the
Tobacco plays a
vital and extensive role in the history of the
The ill effects of
tobacco have been known for a long time.
The regulation of smoking has a long history: in fifteenth century
World War I was an
important catalyst to the fall of the early American anti-smoking efforts. [10] By 1915 much of the broad anti-smoking
legislation was repealed and the assent of tobacco – and more specifically,
cigarette – popularity began.[11] Smoking popularity received a large boost
from World War II as well as the
Lead by advocacy
groups such as A.S.H. (Action on Smoking and Health), what followed was a
series of legislation and litigation that served to make the
Another aspect to
the fight against smoking emerged in the mid eighties: the fight against
secondhand smoke, or environmental tobacco smoke (ETS). In 1986, the Surgeon General of the
Big tobacco sustained another blow in the mid-90’s when documents were leaked from a major tobacco company that suggested the tobacco industry understood and manipulated the addictive nature of tobacco.[17] This brought rise to a relatively successful wave of tobacco litigation which culminated in the testimony before the House Commerce Committee by chief executive officers from major big tobacco companies acknowledging some of the harmful effects of tobacco. The tobacco industry agreed to pay over $200 billion in a historic settlement of lawsuits brought by forty-six states.[18]
More recently, an attempt to make tobacco companies “un-cool” has surfaced. Big tobacco has been vilified through movies such as “The Insider” and ad campaigns such as “the Truth.” Counter culture movements such as the “straight edge” lifestyle have formed in response to the hedonistic popularity of sex, drugs and rock n’ roll. This straight edge counter culture allows youth and adults alike to find identity in the rejection of smoking, drugs, alcohol and other hedonistic pursuits. The days of the cool smoking rebel are losing ground to a generation aware of the evils of smoking.
Despite what seems
to be a growing negative sentiment toward smoking, the tobacco industry remains
an extremely profitable industry.
Tobacco alone accounts for 1 percent of the
B. The Harms of Smoking:
The health consequences of smoking are undeniable and staggering. The Center for Disease Control reported that between 1995 and 1999 smoking caused approximately 440,000 premature deaths annually.[21] To be sure, smoking is the leading cause of preventable death.[22] Smoking is responsible for more deaths than AIDS, crack cocaine, heroin, alcohol, homicides, suicides, and automobile and airplane accidents combined.[23] Cigarette packages themselves are required to display warnings that declare the dangerous nature of the product contained therein.
The health consequences of cigarette smoking are not simply restricted to smokers. As mentioned before, ETS has been classified by the EPA as a human carcinogen. In fact, ETS is more toxic than directly inhaled smoke. This is because inhalation on a cigarette causes the cigarette to burn at a higher temperature resulting in fewer dangerous chemicals.[24] Additionally, many cigarettes contain filters which the smoke is inhaled through by the smoker. On the other hand, side-stream smoke burns at a lower temperature and is not filtered. ETS consists of more than 4,000 chemicals and hazardous compounds.[25] In the EPA’s report classifying ETS as a group A carcinogen, they also reported that there are approximately 3,000 annual non smoker deaths resulting from ETS.[26] Some say the number of non smoker deaths resulting from ETS exposure is as high as 53,000 per year.[27]
The economic costs
of smoking are equally staggering. The
Center for Disease Control estimated that between 1995 and 1999 there was an
average of $157 billon in annual health-related economic losses resulting from
smoking.[28] This included an annual average of over $75
billion in smoking attributable medical expenditures and equally astonishing
$82 billion in smoking attributable productivity costs.[29] The enormity of these collective numbers is
hard to comprehend – it is easier to understand when broken down per smoker. The average annual smoking attributable
economic cost per smoker is $3,391: $1,760 per smoker in productivity costs,
$1,623 per smoker in medical expenditures, and $704 per smoker in smoking attributable
neonatal medical expenditures.[30] The
While the medical
expenses associated with smoking may not come as a surprise, the fact that the
loss in productivity eclipses medical expenditures may be a bit more
surprising. Some estimates actually
place the cost of employing a smoker over a non smoker as high as $4,500 per
worker per year.[31] The cost of employing smokers manifests in a number
of ways: more absenteeism, extra insurance costs, fire losses, smoking breaks,
increased injury rates because of loss of attention, coughing, and other
distractions.[32] Some argue that a smoking habit consumes two
and a half hours a week of a smoking employee’s time.[33] Additional expenses from employing smokers
may come from liability that arises for failing to adequately protect non smokers. The bottom line is that employing a smoker is
not a negligible expense – in fact, it is quite significant.
III. The Regulation of Smoking in and out of the Workplace:
A.
General Regulations:
The regulation of smoking in the workplace is not a new concept. Smoking has long been regulated in industries and circumstances where smoking presents a danger of fire and explosion.[34] The Occupational Safety and Health Act also prohibits smoking under several standards regarding areas where there are combustible or explosive materials.[35]
In addition, many states and municipalities have enacted legislation regulating smoking in the workplace.[36] In fact, restrictions on smoking in the workplace are commonplace. The days of smoky offices and the presumption of being able to smoke wherever are long over. Now, many if not most, offices do not allow smoking at all. Other offices have enacted rules which mandate specific private offices for smoking or segregated areas where smoking is allowed.
Another aspect of smoking regulation and the workplace has begun to unfold. Now, employers are increasingly refusing to employ smokers altogether. This is significant because these regulations encompass activities and lifestyles that are outside of working hours. While these policies may seem invasive at first, as outlined above, the cost of employing a smoker is substantial. As a result, even as long as a decade ago, approximately 6,000 employers refused to hire smokers.[37]
In response to such moves, many states have enacted legislation that prevents employers from refusing to hire or retain smokers.[38] This legislation has varied from specific prohibitions of discriminating against smokers to the regulation of employers considering the use of “lawful products” or participating in “lawful activities” during non-work hours in employment decisions.[39] In a way, these statutes protect smokers as if they were a special needs group.
This begs the question of whether smokers deserve such protection. Some argue that smoking is an addiction over which the individual has no control. While, there is certainly an addictive component to smoking, personal autonomy is not entirely out of the picture. Individuals choose to start smoking. Individuals choose to not utilize resources to quit smoking. Individuals engage in the deliberate action of smoking itself. To say that the individual is entirely without fault ignores the reality of smoking.
It is also important to note the invasive nature of smoking. Smokers do not simply inflict damage upon themselves; instead, other people are significantly affected as well. As outlined above, ETS causes thousands of non smoker deaths every year. Additionally, the economic harms caused by smoking are borne by smokers and non smokers alike. The decision to smoke is not an isolated, individual decision; it is one that affects the individual and community alike.
B.
The
Under
Governor Michael Dukakis, the
Subsequent to January first, nineteen hundred and eighty-eight, no person who smokes any tobacco product shall be eligible for appointment as a police officer or firefighter in a city or town and no person so appointed after said date shall continue in such office or position if such person thereafter smokes any tobacco products. The personnel administrator shall promulgate regulations for the implementation of this section.[40]
When implemented, one of the stated
goals of the statute was to “decrease the mortality and morbidity rates among
the general public from accidents and diseases for which risk factors can be
identified.”[41] The
Perhaps
surprisingly, there has been relatively little litigation surrounding the
The Supreme Judicial Court of Massachusetts vacated the Civil Service Commission decision and upheld the town’s decision to fire Ms. Rossborough.[49] The court reviewed the Commission’s finding that Ms. Rossborough had been terminated without just cause and found that the statute in question mandated the termination unlike similar statutes which provided for discretionary termination.[50] In upholding the decision to fire Ms. Rossborough, the court also noted one of the policy interests behind the statute: preventing police officers and firefighters from increasing their risk of hypertension and heart disease by smoking.[51]
While the legitimacy of the statute itself did not play a central role in the court’s decision, the court did address the constitutionality of the statute in footnote 4. The court stated that the Civil Service Commission had determined that §101A was constitutional “because there was a rational connection between the statute and the legitimate public purpose of promoting the health and safety of police officers and fire fighters who, by reason of their employment, are particularly susceptible to hypertension and heart disease.”[52] The court also cited cases which have upheld similar smoking bans but noted that the constitutionality of §101A was not at issue.[53]
The
only other published case to address §101A is Howcroft v. City of Peabody.[54] In Howcroft
the plaintiff, a police officer, was terminated after complaining about his
superior’s smoking habits and subsequent harassment. Howcroft
is largely a First Amendment case, but did brush on the constitutionality of
§101A. the court stated that “[i]t is
beyond dispute that secondhand tobacco smoke, and its effect on the health of
the public, is a matter of deep and abiding public interest.[55] In footnote 19, the court again revisited the
constitutionality of §101A. Citing
C.
A Synthesis
A look at the general history of smoking regulation seems to show that smoking regulation is becoming increasingly restrictive. The once tolerant attitude toward smoking that was seen around the World War I and World War II had given way to an age of awareness of the hazards of smoking. Increasingly, non smokers’ rights are being asserted both on the legal front and in the fabric of society.
The workplace has been no exception to this trend. Increasingly, workplaces have decided to adopt smoking policies which place restrictions or flat out bans on smoking. The recognition of the costs of employing smokers has lead states, municipalities, government agencies and private companies to take a stand against smoking. Now the regulation of smokers by employers has taken on another face: the regulation of off work smoking as well.
Municipalities and
states alike are already instituting bans on smoking that extend to both on and
off work behavior. As discussed above,
the
As previously noted, thousands of private companies have already instituted bans on hiring smokers – smokers who smoke at anytime, even during non-working hours. On first glance this may seem a little drastic and intrusive, but the bottom line is that it makes economic sense. Employing smokers cost more; plain and simple. The private sector has already recognized the value of not employing smokers and it is time that the federal government leads this trend and realizes the same benefits.
The federal government has already made incredible inroads on progressive smoking policies. The Army implemented a wide-ranging ban on smoking and the General Services Administration has implemented similar smoking restrictions. However, the federal government has yet to take the next step – the federal government has not established a comprehensive smoking policy. The federal government has not taken the step of recognizing the harm of employing smokers occurs not only during the working hours, but in the off work hours of smokers’ lives as well.
The sheer
magnitude of federal government employment bears noting. The federal government employs over 2.7
million employees.[58] This makes the federal government the largest
employer in the
The federal
government should harness its unique position as the nation’s largest employer
and implement an on and off work ban on smoking. As stated before, employing smokers create an
economic burden: the burden of higher insurance premiums, more absenteeism,
more medical problems, and more accidents at work.[60] The federal government currently sustains the
costs of employee smokers and passes the costs on to the taxpayer. Ultimately, it is the taxpaying citizens that
most foot the bill for the federal government’s decision to employ
smokers. Why should the taxpayers of the
The benefits of an on and off work ban on smoking are undeniable. Not only would the economic costs of employing smokers be recovered to the taxpayers, but a more productive and healthier workforce would be the lifeblood of the federal government. Additionally, the federal government would be making bold strides as the nation’s largest employer in promoting healthy lifestyle choice and progressive workplace standards – a model to the private industry and local government alike.
IV. The Leading Cases:
There has been
relatively little litigation regarding on and off work ban on smoking. As mentioned above, the
A.
Grusendorf v. City of
The only federal court of appeals case to address an on and off work ban on smoking is Grusendorf v. City of Oklahoma City.[61] Grusendorf has become the starting point for assessing the legitimacy of on and off work bans on smoking. The facts of the case are relatively straightforward. In October of 1984 Greg Grusendorf was hired on as a firefighter trainee by the Oklahoma City Fire Department.[62] Upon being hired Mr. Grusendorf signed off on a form which indicated that he had read, understood, and agreed to abide by the Fire Department’s on and off work smoking ban for firefighter trainees.[63] While employed as a firefighter trainee, Mr. Grusendorf took three puffs from a cigarette while on an unpaid lunch break from his position with the Oklahoma City Fire Department.[64] The incident was reported to the Fire Department by another city employee.[65] Upon questioning by the fire chief, Mr. Grusendorf admitted he had smoked the cigarette.[66] Because of this admission, the fire chief terminated Mr. Grusendorf.[67]
Grusendorf
filed suit in the district court for the Western District of Oklahoma “claiming
his Constitutional rights of liberty, privacy, property and due process had
been violated.”[68] The district court granted the City of
On appeal, Mr. Grusendorf argued that the no smoking requirement for firefighter trainees infringed on his Constitutional rights of liberty and privacy.[70] The court pointed out that the rights of liberty and privacy, which Mr. Grusendorf was relying on, are not specifically articulated in the Bill of Rights.[71] Rather, such interests stem from “’penumbras’ emanating from the Bill of Rights.”[72]
Little textual guidance is given in the Bill of Rights to help determine the boundaries the protections that privacy and liberty provide. The court noted that the right to privacy has been extended to cases involving fundamental rights relating to marriage, procreation, contraception, family relationships, child rearing, and education.[73] In regards to whether there was a fundamental “right to smoke,” the court stated, “[t]hough we agree with the defendants that cigarette smoking may be distinguished from the activities involving liberty or privacy that the Supreme Court has thus far recognized as fundamental rights, we are not confident that this observation effectively disposes of the [sic] Grusendorf’s claim.”[74]
Citing
Carey v. Population Services
International,[75]the
court went on to say that the outer bounds of what privacy entails have yet to
be determined.[76] Thus, the court followed the approach in Kelley v. Johnson[77] in
which Justice Rehnquist assumed the liberty interest in question existed under
the Fourteenth Amendment of the United States Constitution.[78] As such, the court assumed arguendo that the right to smoke existed
under, or encompassed rights protected under, the Fourteenth Amendment.[79] Through this framework, the court evaluated
the
Even
after assuming a liberty interest in the right to smoke, the court stated that
“both the state and federal governments, as employers, have interests
sufficient to justify comprehensive and substantial restrictions upon the
freedoms of their employees that go beyond the restriction they might impose on
the rest of the citizenry,” again citing Kelley.[80] Thus, because of the heightened interest the
federal and state government has in regulating its employees, and even
considering an assumed liberty interest in the right to smoke under the Fourteenth
Amendment, a no smoking regulation is presumed to be valid.[81] Under the light of a presumption of validity,
the court addressed whether the smoking ban adopted by the City of
First, pointing to
the widely known health hazards of smoking, the court then stated that “good
health and physical conditioning are essential requirements for firefighters.”[83] Therefore, a prima facie rational basis for
the regulation had been established.[84] Once it is recognized that there was a
rational basis for the regulation, the burden shifts to the plaintiff to show
that the regulation is irrational or arbitrary.[85] As the court explained, Mr. Grusendorf failed
to make such a showing.[86] Rather, Mr. Grusendorf erroneously contended
that the defendants had an obligation to justify the regulation.[87] The court concluded, “[a]s we have seen in Kelley, however, the burden is upon
Grusendorf to prove that the regulation is irrational and arbitrary. The initial burden is not upon the defendants
to justify the rule.”[88] Therefore, the Tenth Circuit Court of Appeals
unanimously affirmed the district court’s grant of summary judgment against Mr.
Grusendorf.[89]
B.
City of
In 1995, the Florida Supreme
Court addressed the question “[d]oes Article I, Section 23 of the Florida
Constitution prohibit a municipality from requiring job applicants to refrain
from using tobacco or tobacco products for one year before applying for, and as
a condition for being considered for employment, even where the use of tobacco
is not related to job function in the position sought by the applicant?”[90] The City of
The city estimated that the cost of employing a smoker over a non smoker was as high as $4,611 per employee per year.[96] This figure was calculated in 1981 dollars.[97] Adjusting this figure for inflation, the cost of employing a smoking employee over a non smoking employee in 2005 dollars would be a jaw-dropping $10,317.50.[98] The city argued that since it was self-insured, the extra medical costs of employing a smoker over a non smoker were passed on in totality to the taxpaying public.[99]
Arlene
Kurtz, a smoker, applied for a clerical position with the City of
The trial court ruled against Ms. Kurtz on a motion for summary judgment.[104] Article I Section 23 of the Florida Constitution states:
Right of privacy – Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.[105]
The trial court recognized that Ms. Kurtz had a right to privacy, but that there was no expectation of privacy in employment and therefore, the city regulation did not violate either the Florida Constitution or the United States Constitution.[106]
The Third District Court of Appeal reversed the trial court stating that the regulation violated Ms. Kurtz’s privacy rights.[107] Although the district court recognized the city’s interest in saving taxpayers’ money and increasing productivity, the district court felt that these interest were not sufficient to justify an intrusion into Ms. Kurtz’s privacy.[108] The district court further stated that Mrs. Kurtz’s status as smoker had no relevance to the performance of her clerical duties.[109]
In a 5-2 decision, the Supreme Court of Florida reversed. The Court discussed the implication of Ms. Kurtz’s privacy rights both in terms of the Florida Constitution and the United States Constitution. As noted above, the Florida Constitution grants a specific right to privacy against government intrusion. The Florida Supreme Court noted that this right was not absolute.[110] According to the court, there must be a “legitimate expectation of privacy” for the freedom from intrusion to attach and even if there is such an expectation, that can be overridden by a compelling state interest.[111]
The court determined that no reasonable expectation of privacy existed.[112] Simply put: a person’s status as a smoker was not deemed to be within the scope of privacy protected by the Florida Constitution. The court explained, “[i]n today’s society, smokers are constantly required to reveal whether they smoke.”[113] Citing examples of revealing smoking preferences in circumstances such as seating preference in a restaurant, renting a room in a hotel or motel, and renting cars, the court concluded, “[g]iven 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 and, consequently, that Florida’s right of privacy is not implicated under these circumstance.”[114]
After
determining that Ms. Kurtz’s privacy rights under the Florida Constitution had
not been implicated, the court turned to the issue of privacy under the United
States Constitution. The court initially
noted that “
Noting that, unlike the explicit right to privacy in the Florida Constitution, the United States Constitution only has an implicit privacy provision, which extends to a limited number of fundamental interests such as “marriage, procreation, contraception, family relationships, and the rearing and education of children.”[116] Citing Grusendorf, the court stated that the “right to smoke” clearly falls outside of the penumbra of fundamental rights protected by the United States Constitution.
Although that would have been enough to do away with Ms. Kurtz’s claim of protection under the United States Constitution, the court went on to say that even assuming arguendo “that some protected interest under the federal constitution were implicated so as to require a rational basis for the regulation we would still find the regulation to be constitutional.”[117] The court reiterated the rational basis the city had for enacting the regulations: reducing health costs and increasing productivity.[118] For these reasons, the court concluded that the city had a compelling state interest in instituting the regulation and that the regulation was narrowly tailored.[119] Thus, even under strict scrutiny, such a regulation would pass muster under the United States Constitution.
In a dissenting opinion, Justice Kogan, joined by Justice Shaw, stated that the fact that employees, once hired, could began smoking showed that the regulation was a “a speculative pretense” and therefore unconstitutional under the right of due process.[120] The dissenting opinion seemed to disregard the evidence cited by the majority that “a high percentage of smokers who have adhered to the one year cessation requirement are unlikely to resume smoking.”[121] Additionally, the dissent’s equal protection complaint would seemingly be answered by a uniform enforcement of the smoking ban after the applicant was hired, as is advocated in this paper. Although such a regulation would be “more intrusive” because of its ongoing effects, it would eliminate the “concession” on which Justice Kogan based his dissenting opinion.
The dissent goes on to make a “slippery-slope” argument – essentially arguing that if smoking status is allowed to be used as an employment criterion, there would be no telling what else could be considered appropriate on which to base employment decisions. The “slippery-slope” argument will be addressed in Part VI of this paper.
In
the wake of the Kurtz decision, the City
of St. Cloud,
V. An On and Off Work Smoking Ban and Privacy:
The main argument against an on and off work smoking ban, evidenced by the cases that have addressed the issue, is the argument that such a ban infringes on the individual’s right to privacy. While the Fourth Amendment provides the right to be free from unreasonable searches and seizures, the general right to privacy is not explicitly stated in the United States Constitution. However, a limited right to privacy has been inferred from a penumbra of several provisions of the Constitution, most notably the due process provisions.[124] In Griswold v. Connecticut, Justice Douglas explained, “[s]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.”[125] However, this right is not absolute and as discussed below, the smoking status of an employee does not fall under the privacy protection of the United States Constitution.
The decision to smoke is not a private decision. First, the effects of smoking affect other people. As noted above, the estimates on yearly deaths resulting from secondhand smoke are as high as 53,000 deaths per year. The fact that thousands of innocent lives are lost every single year as the result of peoples’ decision to smoke, makes that decision decidedly public. A similar analogy can be drawn to drunk driving. While the decision to drive drunk may itself be a “private” choice, the public risk that drunk drivers pose makes the decision a decidedly public decision – one deserving the punishment of the law. Similarly, when the effects of the “private” decision to smoke kills tens of thousands of people every year, the private nature of the decision is eclipsed by the very public effects of the decision to smoke.
Along the same lines, the yearly economic cost smoking imposes on society is a staggering $157 billion.[126]