DISPARATE TREATMENT OF INDIVIDUALS WITH DISABILITIES CAUSED OR
EXACERBATED BY TOXIC TOBACCO SMOKE UNDER THE ADA
Under the Americans with Disabilities Act (ADA), in Raytheon v. Hernandez,1 the U.S.
Supreme Court held that:
Both disparate-treatment and disparate-impact claims are cognizable under
the ADA.2
And, under the ADA, the U.S. Department of Justice (DOJ) has interpreted 28 C.F.R.
part 36, the DOJ regulations for public accommodations, as prohibiting disparate
treatment.
The DOJ interpretation of 28 C.F.R. § 36.301 states:
The wishes, tastes, or preferences of other customers may not be asserted
to justify criteria that would exclude or segregate individuals with
disabilities.3 (emphasis added).
Also, the U.S. Equal Employment Opportunity Commission (EEOC) has interpreted its
regulations for employment, 29 C.F.R. § 1630, as prohibiting disparate treatment.
The EEOC has issued a How to Comply with the Americans with Disabilities Act: A
Guide for Restaurants and other Food Service Employers.4 In its Guide, example 5, the
EEOC states:
An employer cannot claim undue hardship based on customer’s (or
employees) fears or prejudices about a person’s disability.
The interpretation of disparate treatment by the DOJ and the EEOC, under the ADA, is
consistent with the interpretation of disparate treatment by the federal courts under the
Rehabilitation Act of 1973 and under Title VII of the Civil Rights Act of 1964.
Under § 504 of the Rehabilitation Act, in School Board of Nassau County, Florida v.
Arline,5 the U.S. Supreme Court held that:
Congress’ desire to prohibit discrimination based on the effects a person’s
handicap may have on others was evident from the inception of the
[Rehabilitation] Act.6
1
540 U.S. 44, 124 S.Ct. 513 (2003).
540 U.S. 53. See also, 42 U.S.C. § 12101(a)(5).
3
28 C.F.R. part 36, App. B, pages 222-223 (DOJ, September 15, 2010) (The 1991 Section-by-Section
Analysis remains relevant to the extent it is not contradicted by the amendments to the rules or it provides
guidance on provisions of the rules unchanged by the revised 2010 ADA regulations).
4
http://www.eeoc.gov/facts/restaurant_guide.html
5
480 U.S. 273, 107 S.Ct. 1123 (1987).
6
480 U.S. 282, note 9.
2
Disparate treatment
Page 2 of 6
And, under Title VII of the Civil Rights Act of 1964, the U.S. Supreme Court made it
extremely clear that discrimination based on third party preferences is prohibited.
In Franks v. Bowman Transportation Co.7 the U.S. Supreme Court held that:
If relief under Title VII can be denied merely because the majority group
of employees, who have not suffered discrimination, will be unhappy
about it, there will be little hope of correcting the wrongs to which the Act
is directed.8
Also, under Title VII of the Civil Rights Act of 1964, in Lam v. University of Hawaii,9
the U.S. Court of Appeals for the Ninth Circuit held that:
The existence of . . . third party preferences for discrimination does not, of
course, justify discriminatory . . . practices.10
Furthermore, under Title VII of the Civil Rights Act of 1964, in Ames v. Cartier, Inc.,11
the U.S. District Court for the Southern District of New York held that:
While pandering to customers’ discriminatory preferences could very well
effectuate a sale, employers nevertheless “may not discriminate on the
basis of their customers’ preferences.”12
Therefore, it is well-settled that the ADA prohibits discrimination against individuals
with disabilities caused or exacerbated by Toxic Tobacco Smoke by employers, public
entities and public accommodations because of the effects of their disabilities on
smokers.
Next, here is the interpretation of “reasonable modification” under Title III of the
ADA by the U.S. Supreme Court.
7
424 U.S. 747, 96 S.Ct. 1251 (1976).
424 U.S. 775.
9
40 F.3d 1551 (9th Cir. 1994).
10
40 F.3d 1560 note 13. Citing Diaz v. Pan American World Airlines, Inc., 442 F.2d 385, 389 (5th Cir.
1971) (holding that customer preference for female flight attendants does not constitute a “bona fide
occupational qualification” under Title VII [of the Civil Rights Act of 1964]; C. Sunstein, Three Civil
Rights Fallacies, 79 Cal.L.Rev. 751, 760-61 (1991) (economically “rational” discrimination has powerful
reinforcing effect on ordinary prejudice).
11
193 F.Supp.2d 762 (S.D.N.Y. 2002).
12
193 F.Supp.2d 769.
8
Disparate treatment
Page 3 of 6
Although reasonable modification is not available as a defense to a charge of disparate
treatment under the ADA, reasonable modification should be reviewed at this time.
In PGA Tour, Inc. v. Martin, the U.S. Supreme Court held that:
42 U.S.C. § 12182(a) sets forth Title III’s general rule prohibiting public
accommodations from discriminating against individuals because of their
disabilities. The question whether petitioner has violated that rule depends
on a proper construction of the term “discrimination,” which is defined by
Title III to include “a failure to make reasonable modifications in policies,
practices, or procedures, when such modifications are necessary to afford
such goods, services, facilities, privileges, advantages, or accommodations
to individuals with disabilities, unless the entity can demonstrate that
making such modifications would fundamentally alter the nature of such
goods, services, facilities, privileges, advantages, or accommodations.” §
12182(b)(2)(A)(ii).13 (emphasis in original).
And, in his Report: The Health Consequences of Involuntary Exposure to Tobacco
Smoke, A Report of the Surgeon General,14 Preface, the Surgeon General states:
Today, massive and conclusive scientific evidence documents adverse
effects of involuntary smoking on children and adults, including cancer
and cardiovascular diseases in adults, and adverse respiratory effects in
both children and adults.
Exposure to hand [toxic tobacco] smoke causes excess deaths in the U.S.
population from lung cancer and cardiac related illnesses.
As this report documents, exposure to secondhand smoke remains an
alarming public health hazard. (emphasis added).
Restrictions on smoking can control exposures effectively, but technical
approaches involving air cleaning or a greater exchange of indoor air with
outdoor air cannot.
Surely, it cannot be said that removing a public health hazard from a public
accommodation would fundamentally alter the nature of the goods, services, facilities,
privileges, advantages, or accommodations of the public accommodation.
Now, let us review the interpretation of “reasonable modification” in the amicus
curiae brief that the DOJ submitted in Martin v. PGA Tour, Inc.
In Martin v. PGA Tour, Inc.,15 the DOJ submitted an amicus curiae brief16 in support of
Martin, in which the DOJ stated:
13
14
532 U.S. 681-82.
Department of Health and Human Services, 2006.
Disparate treatment
Page 4 of 6
It is the plaintiff’s burden to establish that he is an individual with a
disability, that it is necessary for the defendant’s policies to be modified to
afford him equal enjoyment of privileges or services offered, that he
requested a modification, and that the modification was “reasonable.”
. . . the court determined that the requested modification was reasonable
“in the general sense, that is in the general run of cases.” Although the
court’s conclusion is correct, we believe that the reasonableness inquiry
should focus on whether the requested modification would effectively
provide the plaintiff with access to the services and privileges offered, so
that innovative solutions to problems faced by individuals with disabilities
are not excluded from consideration.17 (emphasis added).
Thus, under Title III the PGA must make the requested modification
unless it meets its burden of establishing that the requested modification
would fundamentally alter the nature of its program.18 (emphasis added).
Simply put, if an individual proves that he is an individual with a disability, that a
reasonable modification is necessary, that he requested a modification, and that the
requested modification is reasonable “in the general sense, that is in the general run of
cases,” then the public accommodation must make the requested modification.
Smoking bans are the only reasonable modifications under the ADA
Under Title III of the ADA, in PGA Tour, Inc. v. Martin,19 the U.S. Supreme Court held
that:
. . . the ADA was enacted to eliminate discrimination against “individuals”
with disabilities, 42 U.S.C. § 12101(b)(1), and to that end Title III of the
Act requires that any “policies, practices, or procedures” of a public
accommodation be reasonably modified for disabled “individuals” as
necessary to afford access unless doing so would fundamentally alter what
is offered, 12182(b)(2)(A)(ii). To comply with this command, an
individualized inquiry must be made to determine whether a specific
modification for a particular person’s disability would be reasonable under
the circumstances as well as necessary for that person, and yet at the same
time not work a fundamental alteration. 20
Therefore, since the U.S. Supreme Court has held that the ADA “requires without
exception” that any policies, practices, or procedures be reasonably modified “as
15
No. 98-35309 (204 F.3d 994 (9th Cir. 1999)).
Amicus Curiae Brief of the United States, http://www.justice.gov/crt/about/app/briefs/martin.htm
17
Amicus Curiae Brief of the United States, page 26, note 19.
18
Amicus Curiae Brief, page 26. (citing Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 10591060 (5th Cir. 1997).
19
532 U.S. 661, 121 S .Ct. 1879 (2001).
20
532 U.S. 688.
16
Disparate treatment
Page 5 of 6
necessary,” smoking policies and smoking bans are not excepted from the protection of
the ADA.
And in Martin v. PGA Tour, Inc., the DOJ interpreted a reasonable modification as a
modification that is reasonable “in the general sense, that is in the general run of cases.”
Therefore, we shall look to the U.S. Supreme Court to determine if a smoking ban is
reasonable “in the general sense, that is in the general run of cases.”
Under Title III of the ADA, in Bragdon v. Abbott,21 the U.S. Supreme Court held that:
In assessing the reasonableness of the petitioner’s actions, the views of
public health authorities, such as the U.S. Public Health Service, CDC
[Centers for Disease Control], and the National Institutes of Health, are of
special weight and authority. The views of these organizations are not
conclusive, however. A health care professional may refute it by citing a
credible scientific basis for deviating from the accepted norm.22 (citations
omitted).
According to Bragdon v. Abbott, the views of public health authorities are of special
weight and authority and their views may only be refuted by citing a “credible scientific
basis for deviating from the accepted norm.”
And, the prevailing consensus of public health officials is that second hand [toxic]
tobacco smoke is a public health hazard that cannot be controlled by separation of
smokers and non-smokers or by air cleaning or mechanical air exchange.23
Also, under Title I of the ADA, in U.S. Airways, Inc. v. Barnett,24 the U.S. Supreme
Court held that:
An ineffective “modification” or “adjustment” will not accommodate a
disabled individual’s limitations.25 (emphasis in original).
U.S. Airways, Inc. v. Barnett makes it extremely clear that a modification is not
reasonable unless the modification is effective, and it is the consensus of public health
officials that a ban on smoking is the only reasonable accommodation or modification.
Therefore, under the ADA a public accommodation must make the requested
modification that bans smoking unless the public accommodation can demonstrate that
making the modification would be a fundamental alteration. And, to demonstrate that a
smoking ban would be a fundamental alteration, the public accommodation would have
to cite a credible scientific basis for deviating from the accepted norm that second hand
toxic tobacco smoke is a public health hazard.
21
524 U.S. 624, 118 S.Ct 2196 (1998).
524 U.S. 650.
23
See note 14.
24
535 U.S. 391, 122 S.Ct. 1516 (2002).
25
535 U.S. 400.
22
Disparate treatment
Page 6 of 6
IN CONCLUSION
Wherefore the Agency must ban smoking at government buildings as a
reasonable resolution due to the endangerment caused by Toxic Tobacco Smoke.