Using Federal Anti-Discrimination Laws to Promote Smokefree Air

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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:

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:

For more information contact the following individuals.

Complaint Process:
Timothy Brooks
Kentuckians for Freedom to Breathe
8800 Park Laureate Dr., #202
Louisville, KY 40220
502-495-0047

Legal Issues:
Mark Gottlieb
Tobacco Products Liability Project
Northeastern Univ School of Law
400 Huntington Ave.
Boston, MA 02115
617-373-2026

Resource Binder:
Lynn Carol Birgmann
Kentucky ACTION
4100 Churchman
Louisville, KY 40215
502-363-2911

General:
Todd Warnick
Kentucky Dept. for Public Health
HS1C-B, 275 East Main St.
Frankfort, KY 40621
502-564-7996

This information is for educational purposes only and is not intended to serve as legal advice.

© 1998, 2001 American Nonsmokers’ Rights Foundation