Once again, a court has upheld an employer's right to deny employment to a smoker.

Some states do give some protections to smokers when it comes to employment. But in this Massachusetts case – Rodrigues v. EG Systems d/b/a/ Scotts LawnService – the U.S. District Court dismissed the lawsuit filed by Scott Rodrigues against Scotts LawnService.

Rodrigues claimed Scotts denied him employment when the company learned of his smoking, violating his right to privacy... and violating the Employee Retirement Income Security Act (ERISA) that protects an employee's right to employee benefits.

Can Employers Legally  Discourage Smokers? Anti-smoking crusader and law professor John F. Banzhaf III is vehement in arguing that employers can safely refuse to hire persons who smoke. Banzhaf discounts state laws that to some degree or another are understood to protect smokers from job discrimination. Says Banzhaf: "Some [state] laws are poorly written. They may protect a person from hiring discrimination, but they do permit paying a difference in wages and charging smokers more [health insurance] premium." Banzhaf is a professor of Public Interest Law at George Washington University Law School and executive director of Action on Smoking and Health (ASH), which describes itself as the legal arm of the non-smoking population. He cites the policy enforced at Kimball Physics located in New Hampshire where a state law prohibits employers from denying employment to smokers and firing smokers... simply because they smoke off the job. Kimball Physics doesn't expressly deny employment to smokers. But the company does prohibit anyone from coming on to its premises if they emit "characteristic tobacco odors." Here's the key paragraph in the Kimball Physics policy: "No tobacco-residuals emitting person, article of clothing, or other object is allowed inside any Kimball Physics building. This restriction also applies to anyone or anything emitting characteristic tobacco odors. Anyone who has used a tobacco product within the previous two hours is automatically to be turned away, unless measures have been taken such that residuals-sensitive persons are not exposed." As a practical matter, then, according to Banzhaf, the Kimball Physics policy "means that any smoker would have to bathe and shampoo his or her hair, change clothing, and use a mouthwash between the time they smoke a single cigarette and try to enter the company's property." Says Banzhaf, the restrictive Kimball Physics approach makes employment of a smoker "virtually impossible." Note: If you wish to adopt a restrictive anti-smoking workplace policy it is important that you consult with an attorney familiar with your state law.

Here's what happened. The Scotts company in early 2006 began to test prospective employees for nicotine as part of its "Live Total Health" initiative. Scotts described this initiative as a Wellness plan, including the goal to reduce smoking among employees. Under this initiative, Scotts prohibits employees from using tobacco at any time and also provides resources to help smokers quit smoking. In addition, it's Scott's policy to not hire tobacco users.

In late 2006, Rodrigues applied for work with Scotts. He received an "offer of employment" letter, read it, and signed it. The letter stated his employment with Scotts was "contingent upon successful completion of a pre-hire screening required of all Scotts' associates which includes but is not limited to a drug screen (including nicotine test where applicable by law) and criminal history." Rodrigues volunteered a urine sample for the test.

Then Rodrigues started work for Scotts, pending the results of a background check and the urine sample. About two weeks later when results of the urinalysis came in, Scotts notified Rodrigues that the test for nicotine was positive and he could no longer work for the company.

Rodrigues next filed suit against Scotts, alleging (1) violation of his right to privacy under the state's laws, (2) violation of his rights under the state's civil rights act, (3) wrongful termination, and (4) violation of ERISA by interfering with his right to employee benefits. The court initially dismissed the second and third allegations... then focused on considering the right to privacy and the ERISA violation allegations.

The court's decision... and reasoning.

On Rodrigues's claim that he had a "right to privacy" when it came to his smoking, and that Scotts violated this right to privacy, the court stated: "Rodrigues does not have a protected privacy interest in the fact that he is a smoker because he has never attempted to keep that fact private." The court noted "that he has willingly made the fact that he is a smoker available to the public. He testified that he smokes while walking down the street heading to the post office, that he smokes with others in the parking lot of a McDonald's restaurant, and that he openly purchases cigarettes wherever they are sold."

So, "... Rodrigues has not attempted to keep the fact of his smoking private," the court stated. "He has no cause of action under the Massachusetts privacy statute."

On Rodrigues's assertion that Scotts' denial of employment resulted in denying him benefits under ERISA, the court makes these points: During Rodrigues's employment of about two weeks, his employment "was clearly made contingent on his successful passing of the background check and urinalysis screening." During that time, he "was not yet eligible for benefit coverage under the Scotts plan."

As a result, the court states, "A person such as Rodrigues, who has only a contingent offer of employment, does not have an expectation of benefits under the potential employer's ERISA plan..."

What next? Rodrigues has filed an appeal. The case will be reviewed by the Court of Appeals.

Note: As many as 29 or 30 states (including the District of Columbia) have laws that to some degree give protections to job applicants and employees who smoke. If you wish to ban hiring of tobacco users it is important that you consult with an attorney familiar with your state law.