January 18, 2001
The cumulative experience of communities throughout the U.S. provides conclusive evidence that the strongest protections for nonsmokers from the dangers of secondhand smoke are achieved through enacting local clean indoor air ordinances. Experience also indicates, however, that it is not always possible or feasible to enact such local regulations. For example, some states have preemptive tobacco control laws that preclude local communities from passing their own ordinances. In other instances, elected officials—even after public education has promoted a high level of support for local action—may stubbornly oppose smoking restrictions. In such cases, federal anti-discrimination laws, including the Federal Rehabilitation Act of 1973 (FRA) and the Americans with Disabilities Act (ADA), can be powerful tools—used alone or in conjunction with other policy initiatives—to help clear the air for nonsmokers. From Louisville, Kentucky to Hartford, Connecticut, individuals and organizations have been using the anti-discrimination statutes to free workplaces, restaurants, transportation facilities, public buildings, recreational facilities, and other venues of tobacco smoke.
The FRA and ADA can be used by individuals or organizations to:
- force reluctant employers to implement effective clean indoor air policies
- clear smoke from public accommodations
- educate the public about the dangers of secondhand smoke
The Rehabilitation Act of 1973 (RA)
The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors. There are several relevant sections to the Act that may be used by those who are especially sensitive to secondhand smoke, most particularly Sections 501 and 504. Section 501 requires nondiscrimination in employment by the agencies of the Executive Branch. Section 504 prohibits discrimination in any program or activity that receives Federal funding.
The 1990 Americans With Disabilities Act (ADA)
The ADA is divided into three main sections. Title I protects the disabled in places of employment. Under Title II, no person with a disability may be discriminated against by state or local governments. Title III is designed to ensure that the disabled have full and equal access to public facilities, such as restaurants, hotels, shopping malls, movie theaters, concert halls, and sporting facilities. The ADA does not apply to the federal government, government corporations, Native-American tribes, churches, or tax-exempt private clubs.
Under both the RA and the ADA, a “disability” is any condition that “substantially limits a major life activity.” These include walking, seeing, speaking, breathing, working, and learning. It is now well established that a sensitive nonsmoker may qualify as a person with a disability and is entitled to the civil rights protections under these statutes.
All people, of course, are endangered by secondhand smoke, but all are not afforded the protections of the federal anti-discrimination laws. To qualify, a person must suffer from heart or breathing impairment (e.g., asthma, severe bronchitis, cystic fibrosis, emphysema), severe allergies, or a variety of other lung, heart, and circulatory condition.
Limitations to the Strategic Use of Federal Anti-Discrimination Statutes
Both the Rehabilitation Act and the Americans With Disabilities Act can be extremely powerful tools to win protections for those with demonstrable sensitivities to secondhand smoke. It is important to keep in mind, however, that the broader strategic use of these statutes to clear the air is no substitute for enactment of effective and comprehensive local clean indoor air ordinances. The following limitations should be kept in mind:
- The strategy requires the identification of an affected individual willing and able to undertake a challenging and, sometimes, lengthy endeavor. Filing an administrative complaint, and perhaps a lawsuit, can place heavy demands on the complainant.
- Employers and owners of public accommodations must be approached one by one. Winning in one instance does not directly transfer to other similar venues.
- The public may misinterpret the action to mean that only some individuals are threatened by secondhand smoke. Thus, it is important that the issue of secondhand smoke always be framed as a public health problem for the entire community which places persons with certain disabilities at extreme risk.
For more information contact the following individuals.
Kentuckians for Freedom to Breathe
8800 Park Laureate Dr., #202
Louisville, KY 40220
Tobacco Products Liability Project
Northeastern Univ School of Law
400 Huntington Ave.
Boston, MA 02115
Lynn Carol Birgmann
Louisville, KY 40215
Kentucky Dept. for Public Health
HS1C-B, 275 East Main St.
Frankfort, KY 40621
This information is for educational purposes only and is not intended to serve as legal advice.
© 1998, 2001 American Nonsmokers’ Rights Foundation