Tobacco Documents Online

EC PASSPORT TO ARG %OLA !>149AnLG!>? By Colleen Zimmerman Blackard J ohn Hasnas, J.D., Ph.D., LL.M., J does not smoke. There's no self- interest involved. Hasnas, an attorney and assistant professor at Washington, D.C.'s Georgetown University, simply believes the tobac- co issue is fascinating-from an aca- demic standpoint. He's a business ethicist, after all, and he revels in the angles. The impli- cations. Still, the lanky university professor would never have guessed his intellec- tual ponderings would land him deep in the "what ifs?" of the tobacco debate. THE EDITORIAL. Hasnas works out of a small office on Georgetown's cam- pus, in a stately; stone-front building. One wall of his office is completely covered by a bookcase, and each shelf is loaded with academic books. Books that ask philosophical and ethical questions. Books that delve into-the law. "I haven't read them all," he admits, "but I know what's in each one of them." He knew well the ideas in his edito- rial, too, which he mailed to The Washington Post last August. But, he concedes, he almost didn't write the article. He thought it might be too mundane. Too obvious. On the contrary. In his opinion piece, penned in his irony-laden style, Hasnas pointed out that if government believes nicotine is a drug and cigarettes are a drug deliv- ery device, smokers may well argue that they fall under the Americans with Disabilities Act (ADA), a federal law that guarantees a disabled person may not be discriminated against on the job, or regarding hiring, promotion or firing, because of their "disability." The Washington Post ran the edito- rial in a single column; at first glance it was ordinary among the other opin- ion letters. But it found its wav to the newswire. And other newspapers picked it up. One newspaper in New York state ran the editorial prominently with a blaring, misleading headline to the effect that President Clinton declares smokers disabled. Other local newspa- pers across America featured the piece in following weeks. Hasnas started receiving telephone calls from around the country. It seems few people, including law- makers, employers, insurance execu- tives and employment specialists, among others, had ever given the issue thought. Hasnas was baffled. "The most surprising thing to me is that they say they've never thought about it," he says. TNE ADA. So what do smokers have in common with the ADA? Well, nothing, if the issue is never raised in a court of law. And perhaps nothing, still, if a court does not determine smokers are disabled. Indeed, whether or not smokers are disabled is an issue for the legal sys- tem. Since there is no legal precedent, if a case does come forward, attorneys will call it a "test case." 110~ AA T*f tMtnhar 14Q5

In that test case, a smoker would have'to prove to the court that he or she is "disabled." DISABILITY'S THREE-PRONG TEST. There's a three-prong test that deter- mines whether a person is disabled. Criteria include: • A physical or mental impair- ment that substantially limits a major life activity. Are smokers impaired? "The FDA has spent more than a year trying to prove smokers are addicted to a drug," Hasnas says. "Smokers can probably say they are. "For example, say a person with emphysema who has a job as a fire- fighter says he can't 02 aFFENSiV'E. breathe well. That's a major life activi- ty, and when it directly affects his work...." Some courts have ruled that if a person is somehow limited in gaining employment, this person should be induded under the act. "That means smokers have a fairly reasonable case to make for protection under the ADA," Hasnas says. "My judgment is there's a 50-50 chance whether the courts will buy it." • A record of such impairment. • Regarded by others as having an impairment. "Smokers may not be impaired," Hasnas says, "but if they are regarded by others as impaired, then for pur- poses of the ADA, they are." How so? The Supreme Court decid- G MQLOY E25 WOULP 56 LEGALLY 05LiGA7'61? 7"0 Su??Ly (AN 6NVi2.ONME(VT' couldn't be a social or casual smoker," Hasnas warns) via the legal system, they could not be discriminat- ed against by employers or potential employers. "Smokers are often discriminated against, for the understandable reason that they tend to drive up health care costs," Hasnas says. When hiring, an employer could not ask whether a potential employee smokes if smokers are legally dis- r,PAr 15 Mor 4~oSME ed on a landmark case, commonly known as "Arlene," interpreting the 1973 Rehabilitation Act. In its judg- ment it said that negative reactions of others are sufficient to render a handi- cap and provide protection under the act. The ADA was written to work with the Rehabilitation Act. "It says that if society's accummu- lated myths and fears result in nega- tive reactions from others," the per- son on the receiving end of the nPga- tive reactions is considered dis a ~a. "Here is where smokers hav.• -i real- ly good case, and they can quote a Supreme Court decision," Hasnas says. THE IMPLICATIONS. If smokers estab- lish they are disabled (but "you fire you because you're a smoker." More fascinating to Hasnas, though, is that smokers would get the same protec- tion all minority groups receive on the job. "Employers would be legally obligated to supply an environment that is not hostile or offensive. "My observation of nonsmokers' attitudes toward smokers is they think it's open season. Smokers are subject to all kinds of derogatory comments. People are always coming up to them with gratuitous advice. "If smokers have protection under the ADA, it's the employer's legal obligation to prevent co-workers from harassing smokers because they are smokers." Hasnas laughs. "I can just see poli- abled. "They couldn't ask for that kind of information," Hasnas says. "And they can't cies going into effect to protect smok- ers!" Most people who read Hasnas' arti- cle seem to focus on another implica- tion: reasonable accommodation. Under the ADA, disabled people must be reasonably accommodated. But the ADA also states that smoking can be restricted or prohibited on the job. As far as smokers are concerned, no one knows what "reasonable accom- modation" means. "The only way we'll know will be through the out- come of lawsuits," Hasnas says. IRONIC, ISN'T IT? "Dr. Kessler and the FDA have spent more than a year building a case for smokers," Hasnas says. "In October 1995, if a smoker wants to walk into a court, he or she can produce an FDA report that 'proves' they are addicted. The federal government spent a lot of taxpayers' money building the plaintiff's case for them. "Kessler is the devil to smokers, right? Well he shouldn't be. He's their savior." Hasnas says that, politically, he has libertarian leanings. And he seems mildly amused with tobacco's possible turn of events. "When you base legislation on political consideration, you don't get a logical result," he says. "You get a lot of inconsistent and unintended con- sequences. "This is, perhaps, a very contempo- rary, humorous example." For the record, Hasnas does not personally encourage smokers to stake a claim under the ADA. "We didn't go from a society that valued rugged individualism to a society of whiners overnight," he says. "And the number of people who have read [my editorial] and have said, 'Oh, yes-I can be a victim, too!' shows we're not going to change back to one of individual responsibility quickly. "The person who likes the idea of protection under the ADA is saying, 'I'm not in control of myself. Please pity me. Give me a break.' Personally, if I was a smoker, I wouldn't like to think of myself that way." Isn't it ironic, then, that John Hasnas' article might inspire just such a scenario? "Yes," he says. "It is." 'iTi *t~ Ie 101w f1-1-L , d r • -