A U.S. District Court judge for the District of Massachusetts ruled last week that there are sufficient legal grounds for a lawsuit filed by a smoker against The Scotts Company to proceed. The plaintiff - Scott Rodrigues of Bourne, Massachusetts - was fired by Scotts after failing a urine cotinine test.
The company instituted a new policy in December 2005 by which it fires smokers. At the time the policy was announced, employees were given one year to quit smoking completely or be fired. Scott Rodrigues claimed that he was fired from a job with Scotts that he held for just a few weeks after a required urine cotinine test turned up positive for cotinine. As I reported here in December 2006, Rodrigues filed a lawsuit against the company, claiming that the company unduly violated his privacy and civil rights. The suit was filed primarily under Massachusetts privacy law, which "bars the unreasonable, substantial or serious interference of privacy."
The District Court ruled that there are sufficient grounds to proceed with the case to determine whether Rodrigues' firing violated Massachusetts privacy law. It also found that the suit may proceed based on a second legal claim: that Scotts violated ERISA (Employee Retirement Income Security Act) by interfering with his attainment of benefits for which he would have been eligible if not for having been fired.
The District Court did dismiss two of the legal grounds in the case: it ruled that the case cannot proceed on the basis that Scotts violated the Massachusetts Civil Rights Act or that Rodrigues was wrongfully terminated under Massachusetts common law.
The case will now proceed to the discovery phase on the privacy and ERISA claims.
The Rest of the Story
As I opined last December, the meat of this lawsuit is really the privacy contention.
The common law claim was never going to go anywhere, since Massachusetts has at-will employment and the firing did not fit into any category protected under federal or state law. The Massachusetts Civil Rights Act claim was also very weak.
In addition, I believe that the ERISA complaint will be quickly dispensed with, since it requires that it be shown that the employer specifically fired Rodrigues in order to interfere with his attainment of ERISA benefits, which is quite clearly not the case (although Judge O'Toole ruled that the facts need to be formally presented and litigated).
The invasion of privacy complaint, however, may well have legal merit. As Judge O'Toole points out: "Section 1B of Chapter 214 of the Massachusetts General Laws provides: “A person shall
have a right against unreasonable, substantial or serious interference with his privacy.” The right is broadly stated and it has been left to the courts to determine its scope. It has been held that the statute “proscribe[s] the required disclosure of facts about an individual that are of a highly personal or intimate nature when there exists no legitimate, countervailing interest.”
The lawyers for Scotts will argue that the company's interest in saving health care costs by not hiring smokers outweighs the interference with privacy entailed by requiring a prospective employee to submit to a urine cotinine test. However, my personal feeling is that there is simply no relationship between an employee's smoking status and his or her bona fide qualifications for employment with the Scotts Company. Thus, in my mind, the countervailing interest in this case is not legitimate, or at least, it does not outweigh the invasion of privacy regarding the lawful conduct of the employee in the privacy of his or her own home.
A ruling in Scotts' favor would open the door to all kinds of intrusive medical testing of prospective employees that has no relationship to bona fide job qualifications. If saving health care costs is found to be a large enough countervailing interest to justify intrusive medical procedures that require testing of bodily fluids, then all kinds of other intrusive medical testing are justified, not only cotinine testing.
For example, how about requiring diabetics to submit to a hemoglobin A1C blood test to make sure that their blood sugar is under control? How about requiring people at high risk of sexually transmitted diseases to provide specimens for testing to make sure they are not infected with various microbial agents? How about requiring female employees to submit to an HPV test to make sure they are not at risk for cervical cancer?
Now of course such tests would be precluded under the Americans with Disabilities Act. However, that fact alone does not alter the balancing equation that should be employed here. If not for the ADA, this type of testing would indeed be legitimate if the Court rules that an employer's interest in controlling health care costs is sufficient to require intrusive bodily testing.
One final point that I think is critical. Scotts will likely argue that Scotts has a legitimate business interest in not hiring smokers, in that smoking affects business productivity. However, it can hardly be argued that health care costs are related to business productivity. Some of the most productive workers, namely young people with children, have the highest health care costs because their children make them sick so often. Moreover, while smoking in the workplace has been shown to relate to business productivity, Scotts' policy is not to ban smoking in the workplace, but to ban smokers. I'm aware of no evidence that a smoker, per se, is less productive (having dismissed the issue of taking smoking breaks on the job, since if Scotts' interest were in preventing smoking breaks on the job, the company could simply prohibit smoking breaks on the job).
I think the key to the case will be arguing that health care costs must be considered separately from business productivity, and that the degree of intrusion of privacy that is legitimate in terms of protecting business productivity is far higher than what is legitimate in terms of protecting a business' health care costs.
This would be my argument were I presenting to the District Court. I will report back when any ruling is issued in the case.
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