Handling Tobacco-Related Discrimination Cases in the Federal Government

• Author: by Captain Scott D. Cooper
• Pages: 04

1. INTRODUCTION

   There are few things in today's society that can start an argument faster than a lit cigarette When smokers and nonsmokers are in the same room, thenansmakeraaRenobject to beingexposedto thesmoke. Conversely, the smokers object to being told where and when they can smoke.

   Until recently, smokers and nonsmokers had no recourse other than to argue with each other. More and more, however, courts are ree-ognizing a legal "right" to smoke as well as a "right" to a smoke-free environment.' These courts have considered the growing evidence indicating that nonsmokers are harmed by cigarette smoke? as well a8 the smoker's arguments that smoking is a personal activity that should not be regulated by either the government or the courts.

   In recent months, many government agencies, including the General Services Administration, have adopted regulations placing limits on the right of government employees ta smoke tobacco products while

   *Judge Adurnate Dzne~al's Corps. United States Army Currently assigned BS Labor Counselor, Office af the Staff Judge Adwale, Milmn Diatnct of Washmgon. FOR McNalr. District of Columbia A B , Occidental College, 1981, J.0, Washingtan Uni-versity, 1984: LL M , Gemgetom University, 1987 Member of The bars ofthe Srateof Illmla and the Umted States Army Court of MAtary Rev~ew.

   'F'nvate sector employees have no 'hght" to smoke m the workplace See, sa, Dmfenthal v Clvll Aemnaufl~x B o d , 681 F.2d 1039 (5th Cir. 19821: Shmp V. New Jersey Bell Telephone. 145 N J Super 516, 368 A.2d 408 (1876) There 16 still some eontrave1-8~

   81 to whether federal government employee8 have B "right" to smoke onthe lob Smoking polic~es in federal government agencies me, however, negotiable issued See Sa4

   Secvnty Admmmtrstmn. Rcgion 11, F L R.A Case Xo. 2.CA 30014 (Feb 27,19841.1ta.arleast,pasaiblethattheFederalSenicesImpassePanellFSlPlwould give employ^^^ a "nght" tz amoke on the jab At pre~nf.there IS very little

   law in this ares. The only thing that Iclear IS that the Rehabilltatmn Act, 29 USC 1 794aiallll (19821, pmmdes limted protection both to nommakers and smokers See infra text aceompanring notea 174-209. 229-35

   *Despite thsprOtestaofth.tobaccolobby, c o w generally agree thatmgmetie smoke

   IS h d l to nonsmokers See, e.#., B a d V. Federal Communeanom Comm'n, 405

   F 2d 1082 (D C Cir 19681

   at These agencies' reasons for enacting these regulations have included providing a safe working environment for nonsmokers, cut. ring down on tobacco-related illnesses, and protecting business ma. chines.' In drafting regulations limiting the ability to smoke, agencies have tried to balance the interests of both the smokers and the non-smokers W l e this is a noble am, it is probably impassible to achieve Even if the agency strikes what appears to be a perfect balance, some employees will still feel that they are being treated unfairly. This can lead to grie~ances,~unfair labor practice complaints,6 and even

   A growing number of employees are successfully raising claims that the government must provide accommodation for their tobacco-re. lated handicaps Some argue that their ability to work is affected by a smoke sensitivity handicap. Other employees assert that their addiction to tobacco constitutes a handicap. Still other employees claim adverse effects on their careers merely because their superiors have a bias against smokers.

   Handling tobaemrelated handicap discrimination cases present8 special problems for lawyers who are not familiar with administrative labor practice. These cases do not arise in familiar federal court forums; they me heard initially before either the Equal Employment Opportunity Commmsion (EEOC) or the Merit Systems Protection Board (MSPB) EEOC and MSPB procedures differ substantially from

   tort eiaims.7

   19871 TOBACCO-RELATED DISCRIMINATION

   those used in the federal courts. An agency representative also faces a convoluted set of laws and regulations that were not designed to deal with anything similar to tobacco-related cases.

   This article will provide guidance in the handling of tobacco-related handicap discrimination eases. It first will discuss the laws and regulations used in handicap cases. It will set out the steps to follow in presenting a case before the EEOC or the MSPB. The article will then define the key terms used in handicap actions and discuss the proper order of proof. The remainder of the article will discuss the strategies used in handling the three different types of tobacco-related discrimination casea: nonsmokerk accommodation eases, smoker's accommodation cases, and eases involving intentionai discrimination in personnel actions. Both litigation and litigation avoidance strat-egm will be suggested.

   11. AVAILABLE FORUMS

   Under the Civil Service Reform Act of 1918,s all handicap discrim. ination cases begin In one of two forums. If a case involves an "adverse action"s taken against a nonprobationery competitive service or preference eliable employee,10 the MSPB may hear the case.ll Examples of this type of case include: an employee fired for smoking in a nom smokingarea or; a nonsmoker firedforinabilitytoworkwithcigarette

   T u b L so 95.454.42 Stat. 1111

   5 C F R $ 1201 8 11986)

   IoFor the pwpor of MSPB iunsdietmn, "employse" 18 (AI an individusl in the competitive s e r r i ~ ~ who 1s aervmg aprobstmnw

   or tnal period under an initial appointment 01 who has completed 1 year afcvrrent Continuous emplowent under otherthan a temporary appmnt. ment iimited ta 1 ye" OT lese, and

   5 US.C 8 7911(al(l) (19821

   "5U.S C $7911(al(lI11982l Th~MSPBwpscr~atedwheatheCinlServiesRaform

   Act split the Clvd %mes Commlmon (CSCI The Mce of Personnel Management aasvmsd CSC'e management huletlon8, 5 U.S C. S5 1101-1105 f1982l, and the MSPBthe atwdiratorj fundma, 6 U S C IS 7701-7103 11982l. The p-se ofthis change was fo have appeals handled by an agency independent of the agency responsble for settmg federal government PF~OMBI policy

   smokers. The EEOC hears all other c a w l2 Examples of these types of eases include: a nonsmoker eamplammg that exposure to tobacco smoke is affecting his work, a smoker complaining about not being able to smoke at his workplace, or an employee complaining that he did not get promoted merely because he is a smoker. While the applicable law and strategies in handicap cases are the same before both the MSPB and the EEOC,I3 the procedures are different.

   A. APPEALS TO THE EEOC

   The EEOC appeal procedure comprises five stages' precomp1ar.t and settlements, investigation, formal hearing, appeal to the EEOC, and appeal to Federal District Court."

   Stage 1. Precomplamf and Settlement

   An employee or applicant far employment mtiates the complaint pmess by contacting an EEO counselor for informal munseling within thirty calendar days after the effective date of the alleged discnml-nation in Most tobacco.related cam involve the enforeement of regulations and are classified as continuing violations,lb for which the thirty-day time limit is not applicable.

   The EEO counselor listens to the employee's or applmnt's corn. plaint and, as appropriate, contacts management Officials regarding possible settlement or resolution of the complaint."

   T h e EEOC has jurisdiction af all federal emPIowe diamrmnatm clslms thsi cannot be brought before the MSPB The MSPB bnd the EEOC have wncment JY- nsdistion of '"mixed

   -8'' that deal wlth bath dmnmmatmn and adverse mtms taken aiainit employee. S R ~ D

   No 969 95th Cons, 2d Sea8 56-60 mmtd tn

   c m ~ t o ~ a pattern of discnminatov conduct, ;de mnducf 18 a continuing v m l ~ f m urd

   the chargeneedonlybehled~thm30 days ofthe laat adion Sc~Blackman

   Y. McLueas.

   18 Far Em01 Prae Caa IB N A > 654 (D D C 19761 '.'&e infra notes 263-87 and accompanying texl

   19871 TOBACCO-RELATED DISCRIMINATION

   stage 2: Inuest,gat,an

   Ifthe EEO counselor 1s unable to rewlve the complaint &r twenty-one days, the employee or applicant may file B formal complaint. The formal complaint mu6t be filed within fifteen days of the close Of counseling.I8 The agency must accept the complaint unless it is un-tmely,lg already filed before the MSPB,2O "not within the purview of regulations",2I or if the employee has rejected an offer of settlement that would provide all relief requested?%

   The agency then forwards the complaint to an investigator, who may be an agency employee or an employee of an outeide investigative agency. The investigator looks into the charge in one of two ways. He may obtain statements from pertinent witnesses as well as the complainant and any alleged discriminating officials, and then obtain any pertinent documents directly from the complainant or the agency. The investigation may also take the form of an informal hearing. At these informal hearings, witnesses testify under oath in front of the investigator, the complainant, the complainant's counsel, and the agency counsel. Alleged discriminating officials are usually not allowed to be present during testimony of other witnesses.

   At the close of either form of investigation, the investigator issues a report to the agency. The agency then issues a proposed agency disposition. If the complainant accepts the proposed disposition, the process ends." If not, the agency often makes another attempt to settle the case. If this fails, the complainant may either request a final agency decision and proceed directly to federal court (stage 5)*' or request a formal hearing. The complainant must request a formal

   "29 C.F R 8 1613 213 (19361

   >*Id D 1613 215.' I d 0 1613.405 If the agency receive^ an EEOC complamt rrlaflng to an aetm that is the avbjet of B pr8v~ously Bled MSPB complamt, the agency must reject the eomphnt and refer the complainant to the MSPB. 6 C F R 9 1201 155 (1986). If aRer a~cepfing a complaint, an agency learn that the eomplamant filed en eppal m i the MSPB before filing the formal EEOC eomplamt, the EEOC complaint muat be cancelled 29 C F.R. 5 1613 4 0 W (19861 See mfm notes 46-48 for a dlruaamn of...