Accommodating vulnerabilities to environmental tobacco smoke: a prism for understanding the ADA.

• Author: Parmet, Wendy E.
• Position: Americans with Disabilities Act

1. INTRODUCTION

   Environmental tobacco smoke ("ETS") is the "second-hand" smoke produced by cigarettes. Recent evidence suggests that ETS presents a broad-reaching public health risk.(4) For some individuals, however, ETS presents an especially acute threat. These individuals, many of whom have pre-existing respiratory or cardiac disabilities, find that significant exposure to ETS precludes them from continuing to work or participate fully in public life.(5)

   The danger of ETS could potentially be limited by federal legislation. In June 1997 negotiators representing state attorneys generals who had sued tobacco companies, tobacco manufacturers and lawyers representing class action plaintiffs signed a "Proposed Resolution" of their lawsuits which would require federal legislation.(6) Title IV of this proposal would, if implemented, restrict smoking to ventilated areas of public buildings regularly entered by 10 or more individuals at least one day per week.(7) The proposal, however, would create an exemption for restaurants (other than fast food restaurants), bars, private clubs, hotel guestrooms, casinos, bingo parlors, tobacco merchants, and prisons. To date, the fate of this proposal is uncertain.(8) Moreover, even if some form of the proposal is enacted, it may follow the settlement in not providing any private right of action to enforce the restrictions on public smoking.(9) Similarly, the proposal fails to provide any protection for individuals harmed by tobacco in the various buildings exempt from the restriction. As a result, whether or not some form of the settlement ultimately becomes law, individuals who are significantly harmed by ETS may still look to other federal remedies.(10) Chief among them is the Americans with Disabilities Act ("ADA").(11)

   In recent years, several individuals have used the ADA to challenge smoking policies of their employers or public accommodations. In effect, these individuals have claimed that the refusal to prohibit or limit smoking constitutes a refusal to provide a "reasonable accommodation" necessary to permit them to fully participate in a public accommodation or place of employment. Although these cases have sometimes failed due to their particular facts,(12) several courts have agreed that ETS-related claims may be actionable under the Act.(13) No court has disagreed. A recent jury verdict in which a severely asthmatic prison guard, who claimed to have required more than twenty emergency room treatments post-ETS exposure in the workplace, was awarded $420,300 and reinstatement suggests that the ADA's promise in this area may indeed be fulfilled.(14)

   Judicial acceptance of ETS-related ADA claims should not be surprising. A relatively straightforward reading of the ADA, and its history and regulations, makes clear that in certain instances the refusal to alter smoking policies, just like the refusal to alter any other policy that prohibits individuals with disabilities from working or fully participating in a public accommodation, may be discriminatory.(15) Nevertheless, the use of the ADA to challenge smoking policies raises important questions about the breadth and meaning of the ADA. For some advocates of disability rights, the use of the ADA for such cases may seem an unwarranted extension of the ADA. These advocates fear that such a use may weaken the Act's potential to prohibit "real discrimination" against individuals with traditional disabilities.(16) On the other side of the debate, employers and managers of public accommodations may fear that the application of the ADA to ETS-related claims threatens to "open the floodgates" to judicial review of many employment or business policies.(17)

   This Article explores the use of the ADA to challenge smoking policies and the fears and questions that such a use raises. We argue that a careful appreciation of the ADA's application to ETS-related claims should temper the worries of both those who see such claims as trivializing the ADA and those who worry that such claims may impose enormous burdens on American businesses. Rather, we suggest that the ADA in this instance, as in others, provides a limited but critical vehicle for ensuring that individuals with disabilities may fully participate in public life. We suggest further that the issues raised by the application of the ADA to ETS provides a useful vehicle for reconsidering the meaning and impact of the ADA and dispelling some of the myths that have surrounded its advent.

2. BACKGROUND ON ETS

   The dangers of cigarette smoking have long been well established. The risks that cigarette smoke, an environmental pollutant containing over 4,000 chemicals,(18) poses to nonsmokers, however, have only recently been well documented. In 1986, then Surgeon General C. Everett Koop released a report on passive smoking and health, which concluded, among other things, that ETS causes lung cancer as well as a host of other respiratory problems in nonsmokers.(19) The report further found that the simple separation of smokers and nonsmokers within the same airspace does not eliminate the risks posed by ETS.(20)

   The evidence establishing the dangers of ETS was more fully reviewed in the 1993 US Environmental Protection Agency (EPA) report on the respiratory effects of ETS, Respiratory Effects of Passive Smoking: Lung Cancer and Other Disorders.(21) Summarizing the scientific literature through 1992, the report concluded that involuntary smoking leads to the death of 3,000 non-smoking Americans each year by lung cancer.(22) Based on this finding, the EPA declared ETS to be a Group A (or known human) carcinogen for which there is no safe level of exposure. Other important conclusions were that:

   ETS causes as many as 300,000 lower respiratory tract infections in infants each year resulting in as many as 15,000 hospitalizations;

   ETS causes fluid buildup in the middle ear, the most common cause of hospitalization and surgery for American children; and

   ETS exacerbates and may in fact help to cause new cases of asthma.(23)

   Although ETS poses a generalized health risk to all individuals exposed to it, its impact may be especially severe for some individuals with particular disabilities. For example, individuals prone to asthma may be highly vulnerable to the effects of ETS.

   Asthma is a disorder triggered by a number of events, including exposure to allergens, sneezing, physical activity (running, etc.), or other causes which create stress on the respiratory system to increase air intake.(24) Once triggered, asthma restricts air intake by inflaming the bronchial tubes, thus narrowing the passages through which the air must travel. In some instances, attacks may be triggered by exposure to cigarette smoke.(25)

   Much of the research on asthma and ETS examines the effects on the four million children in the U.S. with asthma.(26) The 1992 EPA report reviewed ten studies published after 1986 (when the Surgeon General's report found no "consistent relationship" between ETS exposure and asthma).(27) The EPA found that the newer evidence revealed an association and suggested the possibility of a causal link between ETS exposure and asthma in children.(28) A recently published meta-analysis of studies examining ETS and asthma estimated that somewhere between 307,000 and 522,000 cases of asthma among children under 15 years old are attributable to ETS exposure.(29)

   Studies have also found a relationship between ETS and adult asthma. A recent Swiss study found that non-smoking adults exposed to ETS at work or home were at higher risk for physician-diagnosed asthma. The study also suggested a dose-dependent increase in asthma symptoms related to hours of ETS exposure.(30)

   In both adults and children ETS exposure can aggravate asthma in two ways. First, long term exposure can trigger bronchial hyperreactivity, which means that exposure to certain airborne substances results in decreased lung performance. Second, a short exposure to ETS can result in an almost immediate decrease in lung function of similar magnitude.(31) Either way, exposure to ETS can result in a serious health risk and prevent an individual from engaging in his or her normal life activities.

   Individuals with other respiratory disabilities face similar ETS-related risks. Chronic obstructive pulmonary disease (COPD), covers a group of diseases which have symptoms including chronic cough and expectoration, shortness of breath, and progressive reduction in lung function. Two of the more common diseases to fall under the COPD designation are emphysema and chronic bronchitis.(32) COPD is often caused by active smoking.(33) For former smokers with COPD, ETS can exacerbate the condition, decrease lung function and make it difficult for such individuals to work.(34)

   Studies have examined the effect of ETS on pulmonary function in adults and found that exposure results in a significant drop in lung function.(35) These studies reported a drop in forced expiratory flow, forced expiratory volume, and vital capacity. This means that ETS exposure can reduce one's ability to inhale, exhale, and hold air in the lungs. ADA claims brought by persons with COPD would likely focus on this decrease in pulmonary function as they already suffer from permanently diminished lung capacity.

   Less well known respiratory conditions can also make an individual especially sensitive to ETS. Individuals with systemic lupus erythematosus(36) and cystic fibrosis(37) suffer from diminished lung capacity, and thereby particular vulnerability to ETS. Individuals with multiple chemical sensitivity(38) and some persons with severe allergies, may also be vulnerable.(39)

   While the harm that ETS causes those with respiratory problems appears most obvious, ETS is actually thought to affect far more people with heart disease. Recent studies provide evidence to support the link between ETS exposure and heart disease.(40) A paper in the Journal of the American Medical...