TAKE YOUR CHOICE: SMOKING OR EMPLOYMENT

St. Luke’s hospital in Bethlehem, PA announced a new policy of hiring only non-smokers and screening all applicants for employment for nicotine. The reasons for this new policy are obvious. The hospital can potentially lower the cost of health insurance by improving the health of employees, and internal conflict over smokers in the workplace (and their numerous smoking breaks and odor) can be eliminated.

Smoking applicants can be expected to see this as impermissible discrimination, but it probably is not. Michigan, for example, passed a progressive civil rights statute in 1976 known as the Elliott-Larsen Civil Rights Act. That Act bars discrimination relating to places of public accommodation based on religion, race, color, national origin, age, sex, or marital status. MCLA 37.2302. There are even more restrictions placed on employment decisions because an employer cannot discriminate on the basis of religion, race, color, national origin, age, sex, height, weight, or marital status. MCLA 37.2202.

In addition to Michigan’s Elliott-Larsen Civil Rights Act, Congress passed the Civil Rights Act of 1964, which also bans discrimination based on an individual's race, color, religion, sex, or national origin. 42 U.S.C. s 2000e-2. Neither the state or federal statute prohibits discrimination based on smoking.

In 1990, Congress passed the Americans with Disabilities Act. 42 USC 12102 et seq. Generally speaking, the term “disability” means, with respect to an individual. a physical or mental impairment that substantially limits one or more major life activities of the individual. Michigan has a similar statute called the Handicappers Civil Rights Act, MCLA 37.1101 et seq. In 1995, the Michigan Court of Appeals decided a case under this Michigan statute where a hospital employee complained that the psychiatric unit had not banned smoking altogether. Smoking by patients was restricted to certain areas of the hospital, but the hospital had concluded that a ban of smoking altogether would impose an undue burden on mental patients. The complaining employee, on the other hand, claimed that she had asthma and was entitled to “accommodation” under the Handicappers Civil Rights Act, meaning that smoking should have been banned altogether at the hospital to accommodate her. The Court of Appeals did not agree, and she lost the lawsuit. Hall v Hackley Hosp, 210 Mich.App. 48 (1995).

It certainly appears that an employer may condition employment on verification that the employee applicant is a non-smoker. This is not prohibited by the civil rights act. An employee might argue that he/she is entitled to “accommodation” under the state or federal disabilities acts; however, an employer can defend against this action if it can prove that accommodating one person would result in an undue burden on another or result in an unreasonable expense. In the Hall v Hackley Hosp case, the court accepted the hospital’s claim that mental patients often “have a very intense craving to smoke, and denying them cigarettes can lead to increased assaultive behavior, acute withdrawal, or profound depression resulting in further mental and physical deterioration. The decision to permit the patients to smoke reflects the center's desire to first control the patient's psychotic episode before addressing the patient's tobacco addiction.” In short, these cases require a court to decide where one person’s nose starts and another person’s nose ends.

It is likely that more and more employers will consider policies that encourage better health for employees. Not only is health becoming a national issue, but the cost of providing health care for all Americans will be astronomical if Americans continue to consume poor diets, avoid exercise, and smoke. In the case of smokers who are also hospital patients and may have their treatment compromised if all smoking is banned, the hospital may decide to accommodate its patients by permitting smoking in certain areas while still banning smoking by any of the hospital’s own employees.

Stop Bullying My Child!

With the growing incidence of bullying at school and related student suicides, many people are concerned that there is not enough teeth in the law to protect students from this conduct. While efforts have been made in Michigan to pass anti-bullying laws, there has been much resistance to that in the Legislature.

One frustrated family decided to take a different path when their son continued to experience bullying throughout middle school and into high school. The bullying affected his grades and his self-esteem. He was sexually assaulted at school. He was certified as “emotionally impaired” and offered special education services. While the school did some investigation and made some attempt to intervene, it was not enough to protect this student. The parents finally decided to sue in federal court Title IX, the federal statute that provides that no student may “be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance....” 20 U.S.C. § 1681. The United States Supreme Court developed a three part test for Title IX cases in Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999), and the Sixth Circuit adopted that test in Vance v. Spencer County Public School District, 231 F.3d 253 (6th Cir.2000). In the Davis case, the Supreme Court held that IX may support a claim for student-on-student sexual harassment when the plaintiff can demonstrate the following elements:

(1) the sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school;

(2) the funding recipient had actual knowledge of the sexual harassment, and

(3) the funding recipient was deliberately indifferent to the harassment.

In Patterson v. Hudson Area Schools, 551 F3d 438 (Mich. 2009), the Sixth Circuit held that the student had offered sufficient evidence to avoid dismissal of the case, and the case was remanded for a jury trial. While school had made some effort to intervene, support the student, and enforce its anti-sexual harassment policy, the court held that this was not enough to avoid the claim that it had been, in fact, “deliberately indifferent to the harassment.”

It is a pity when parents are forced into federal court to protect their children from bullying. Michigan should criminalize this behavior. It should not just be treated as a civil matter, especially when the bullying itself is often a crime and the bullying often leads to academic failure, social stigma, and often suicide.