Saturday, December 02, 2006

Massachusetts Man Who Was Fired for Smoking Off-the-Job Files Lawsuit Under Massachusetts Privacy Statute

According to an Associated Press article, a Massachusetts man who was fired by the Scotts lawn and garden company after having cotinine (a break-down product of nicotine) detected in a urine sample he was forced to submit has 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."

As I revealed here in The Rest of the Story last December, Scotts Miracle-Gro implemented a policy of firing smokers, even if they smoke only off-the-job in the privacy of their own homes, in order to reduce health care costs. At the time the policy was announced, employees were given one year to quit smoking completely or be fired.

Scott Rodrigues of Bourne claims 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.

According to the article: "The lawsuit asks for unspecified damages and lawyer's fees. "In more general terms, this case challenges the right of an employer to control employees' personal lives and activities by prohibiting legal private conduct the employer finds to be dangerous, distasteful or disagreeable," the lawsuit said."

"The Scotts Co., a subsidiary of Scotts-Miracle Gro Co. of Marysville, Ohio, instituted a policy early this year forbidding smoking to promote healthy lifestyles and hold down insurance costs. In the 20 states that allow it -- including Massachusetts -- the company refuses to hire smokers and tests all new employees for nicotine, said Jim King, Scotts' vice president for corporate communications and investor relations. King refused to comment specifically on Rodrigues' case because the company's lawyers hadn't reviewed it, but said all new employees are told they must be tobacco-free and are told they will be tested for nicotine." ...

"Rodrigues' lawyer, Harvey Schwartz, said companies can require drug tests if they believe their employees are using the substances at work or if drug use would seriously interfere with the job. Neither of those are true in this case to justify a test for nicotine, he said. "Being compelled to provide a urine sample and the information that the sample contains is a violation of his privacy, where it has no relation to his job," Schwartz said. Schwartz also said the case goes beyond smokers' rights. If this practice stands, employers could dictate other aspects of their workers' lives, he said. "They can say you don't exercise enough. We want every employee to attend a health club, and we're going to check your attendance record there," Schwartz said."

The Rest of the Story

This is potentially an important case for two reasons. First, it is the first case I am aware of that specifically addresses whether a company can intrude into the privacy of an individual's lawful off-the-job behavior in the employee's home by requiring invasive biological testing. Previous cases have established the right of employers to implement a smoker-free workplace, but this may be the first lawsuit since the recent proliferation of these policies and the expansion of the scope off these policies to include firing existing employees and requiring invasive biological testing of bodily fluids.

Second, this case is filed not simply under employment law, but under a specific state privacy statute. Thus, the lawsuit asks not merely whether or not employment law allows an employer to hire and fire at will (as long as anti-discrimination statutes are not violated), but whether monitoring of an employee's urine for cotinine (to detect lawful smoking off-the-job) represents an undue intrusion of privacy that is barred under the state's privacy statute.

I want to make it clear that I strongly condemn these type of employment discrimination policies against smokers, whether they are legal or not. The fact that discrimination against smokers in hiring and firing may be legal does not make it right. Anti-smoking groups, in my view, should loudly oppose such policies in no uncertain terms. Of course, so far not a single U.S. anti-smoking group has done so, and several groups have actually expressed strong support for these policies.

Nevertheless, if the policy is found to violate privacy law, it will have a huge dampening effect on the widespread proliferation of these discriminatory policies. It may also help to bring national attention to this problem, and may help garner public opposition to these policies, which would make it more difficult for employers to implement this form of discrimination.

Furthermore, it may ultimately convince a number of states to enact statutes that specifically protect the rights of employees against discriminatory hiring practices that are not currently protected by anti-discrimination statutes.

Regardless of the outcome of this case and whether or not it inhibits the spread of these type of policies, there is one sure-fire way to stop this nonsense. And that is for anti-smoking groups to condemn the practice.

That's not going to happen, both because I don't think anti-smoking groups really care about the welfare of smokers and because those that do are afraid to speak out because of the McCarthyist nature of the current anti-tobacco movement.

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