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.
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.