Tobacco Documents Online

fUOw.La~ s... tas7. JoIR' l. IiAwRS. [II.. pAk[iL t. APOIQl. sZ l ~!', J. ~ ~+L'ZlS.tlrl or. •, nOmRA:fRC!'~. Ai ~, aal!{f. lr'. prricC* ~ o:r' BFt!OMtNE & KAHIM . lOo. rppT~o!Orco" ' 1VnCC'r~ TtLlT••SOR 3AN IlAACIlQ'O f1"04 ' /"31 4a3-OOis2 October 18. 1954' City Cduncilman, Marvin Braud,e LOS ANGELES CITY HALL 2010 North Spring Street. Los Ang,eles, CA 90012 Attn: Glen Barr RE: Proposed Ordinance Regarding Smoking IniThe Workplace Dear Mr. Barr: At the request of Califorians for Nbn.-Smoke & Rightsl/ , we are submatting1this letter in order to address certain issues a raised in the currently proposed Los Angeles Ordinance concerning •!`,: rights af'smokers and'non-smokers in the workplace. In particular, we have been asked to address'aiclause in the proposed Ordinance wliieh1would prohibit employers from discharging or discriminating against employees where thwdominant intent of such discharge or discrimination is in retaliation for the employee''s. (or prospective e:nployee"s) exercisi'ng his or her, rights under the Ordinance. Fbr, the reasons set forth in this letter, we feel that such a clause!is appropriate and necessary to protect the rights of non-smokers under the new Ordinance. Browne s Kahn ha&, from! time to time, been involved': in , 1/Please be advised that we neither represent Californians for Non-Smokers Rig,hts nor are we being compensated for writingi this letter. we feell that the issues raised in this letter are'importa:It social issues, and we are submitting our oDinions--and they are opi~nions.only--'as a public service. 0CT.' 2 iS84 Gc..l

BnowwE & SAmrr City Councilman Marvin Braude October 18, 1!9184 Page.2 - f litigation regarding the smoking,/non-smoking: issue. Most notably, we were involved in the landmark decisionof Parodi v. Merit Systems Protection Board (1982)~, a.case in which an employee with the Defense Logistic Agency of the Qnited~States Government was able to show that a total disability (for which, a disability pension is.available) can occur merely because of adverse reactions to cigarette smoke. Most recently, we have been invol!ved in the well-publi~cized case of Claudia, Marshall v. Landsberg & Associates, Inc., San Francisco Superior Court Action No. 823711, wherein Ms. Marshall has alleged a wrongful discharge under law,, based upon the fact that she.was terminated from her employment not because of unsatisfactory performance but merely because of the fact that she exercised her rights under San. Francisco Municipal Ordinance No. 2981-83 requiring accommodations e%f non-smokem in the workplace in San Francisco. ~. Despite these cases,' and a number of~ minor cases on g smoking/non-smoking, issues, this developing, area of'the law, i~s not a major part of our, law practice. The truttn is that it is impossible for a small law firm such as ours to take many cases in, this area, of the law, as they are rarely financially profitable or cost-ef'fective from, a business standpoint. Even when the plaintiff/eanployee prevails, such cases often result infinancial losses for the employee orthe law firm. The common law and.the civil justice system~alone, tt'Qerefore, do not protect the non-smoking, employee who has been the victim of retaliatory action. ~ ~ TO illustrate, we believe that the victims of.'smoking discri'mination" in the workplace are,for the most part, in, the (A ~ '.5,000-530,000 range. Oftentimes.they are clerks or secretaries ~ Go' GG-2'

BROVr.NE & KAffiM City Councilman Marvin Braude .~ October 18', 1984 ® •ge 3 I ••because of a discriminatory firing, can ill-afford to pay a private attorney on an hourly basis for the legal services required to conduct wrongful discharge litigation in civill courts. Justice under common law in civil courts of this state is slow and expensive--prohibitively so for victims of this type of discrimination. Browne & Kahn, as an example, can agree to represent only a small percentage of the many persons who callour who work in crowded, poorly ventilated'office areas. Most of'ten, the problem arises because other clerks or secretaries in the near vicinity smoke, creating a difficult working environment for that empl'oyee. Under common law, these employees work at the discretion of the employer. Even if we can show that an employeee was terminated wrongfully because of a complaint, he or she must attempt to •mitigate" his or her damages by f inding another, jjob immediately. Therefore, as a practical matter, actual damages for loss of wages (absent punitive damages, emotional distress or other relief available) are usually below 510,000. While this may be a life savings to the employee, it is not nearly enough, to finance a full litigation and trial in civil court.-Y As a result, we believe that most attorneys w31l not t .cept smoking discrimination cases on a contingency basis, except \ as part of their gro bono portfolio. Conversel'y, anlemployee whoo earns $15, 0i00i-S310, 000 per year, and is currently unemployed i ?/There are, of' course, exceptions. Oftentimes, when employees are discharged, they suffer great emotional distress, loss of earning, capacity, sicitness, family problems, or, other malady directly attributable to the presure of being, unemployed and the humiliation of'being,firedf While recovery can be made under common lawfor these additional consequences of discrimination, proving such damages through litigation can be xtremely time consuming and very expensive. GG~-3'.

c 3R OWME &' RAS N City CouncilmamMarvin Braude October, 18', 1984~ . •ne 4 offices who either suffer from allergies from exposure to cigarette smoke in the~workplace or have been treated wrong,fwlly because of their complaints about workplace ssnoke.. For these reasons, we feel that an Ordinance prohibiting discriminat3on or discha ge based, upon exercise of a non-smoker's right to a safe and'healthful work environment would be both beneficial and'just. It would be alvery strong deterrent to discriminatory actiom, particularly because employers would be aware that immed'iate sanctions by public authorities, rather than slow and'ineffective civil actions by the victimized ezaployee,, would be the cost of'denyingi an employee his or her right to a smoke-free working environment. The employee would have~an accessable means of obtaining at least a partial remedy for Z ingful discrimination by an employer. For many employees-- .eed most employees--such access to justice does not currently exist. We hope that the foregoing information will assist you in developing and implementing,an ordinance protecting non-smokers in the workplace in Lcs Angeles. We~believe that the San Francisco ordinance has had'a positive effect on the business community in here in the Bay Area. We thank you.for the opportunity to present our opinion on this matter.. S'incer ely, 6 PAUZ..tr! DUB1tASICB PN'Dzmj'b e GG-4'