Department of Justice Civil Rights Division Office of the Assistant Attorney General The Honorable Bart Stupak Member, United States House of Representatives 1120 E. Front Street Suite D Traverse City, Michigan 49686 Dear Congressman Stupak: This letter is in response to your inquiry on behalf of your constituent, XXX , regarding the Americans with Disabilities Act of 1990 (ADA). XXX refers to an article from the Detroit Free Press, stating that employers are required to provide designated smoking areas that will protect smokers from inclement weather and extreme temperatures. XXX wishes her employer to be directed to meet that requirement. Please excuse our delay in responding. When Congress enacted the ADA, it specifically stated that the ADA does not preclude the prohibition of, nor the imposition of restrictions on, smoking in places of employment or other facilities covered by the Act. 42 U.S.C. S 12201 (b). Thus, the Detroit Free Press' statement that the ADA "does guarantee that any employer who decides to restrict or prohibit your ability to smoke on the job cannot do so without 'making reasonable accommodations' to your disability" is incorrect. I hope this information is useful to you in responding to your constituent. Sincerely, Isabelle Katz Pinzler Acting Assistant Attorney General Civil Rights Division cc: Records, chrono, Wodatch, Nichol, Milton, McDowney, FOIA:dhj T. 4/2/97 udd\Milton\Congress\Smoking.stu rev. 4/21/97 202-38-0 Washington, D.C. 20530 MAY 2 1997

FEB-07-97 15:50 FROM: CONGRESSMAN STUPAK TO D O ID: 6169297725 PAGE 1/2 COMMITTEE: BART STUPAK COMMERCE 1st District, Michigan SUBCOMMITTEES: Health and the Environment 317 Cannon Building Commerce, Trade, and Washington, DC 20515 (202) 225-4735 Congress of the United States Hazardous Materials FAX: (202) 225-4744 Co-Chairman, Law Enforcement Caucus House of Representatives Regional Whip Washington, DC 20515-2201 February 7, 1997 FAXED

Department of Health and Human Services Food and Drug Administration Legislative Liaison Office 200 Independence Ave., SW Washington, DC 20201 Dear Legislative Liaison Specialist: Following is a copy of a Detroit Free Press newspaper "Commentary" from the Fall of 1995 that I received from a constituent of Congressman Bart Stupak. I would appreciate your review and assistance with constructing a response to the constituent. As I understand the situation, the constituent XXX and other co-workers are attempting to use this article to demand that their employer provide them with a designated smoking area that will protect them from inclement weather and temperatures (note highlighted paragraph). XXX stated that the business where she works has over 400 employees. Please send your reply to Congressman Bart Stupak, Attn: JoAnn Papenfuss, 1120 E. Front St., Suite D, Traverse City, MI 49686. You can also send it by FAX to (616) 929-7725. If you have any additional questions about this case you can call (616) 929-4711. Sincerely,

JoAnn Papenfuss Congressional Aide to CONGRESSMAN BART STUPAK 2 pages total with this FAX (handwritten) No 97-987 Please Reply To: * 1223 W. Washington * 902 Ludington Street * 616 Shelden * 1120 East Front Street * 111 E. Chisholm * 2 South 6th Street Marquette, MI 49865 Escanaba, MI 49829 Houghton, MI 49801 Suite D Alpena, MI 49707 Suite 3 (905) 228-3700 (906) 788-1504 (906) 482-1371 Traverse City, MI 49686 (517) 356-0690 Crystal Falls, MI 49920 (616) 929-4711 (906) 875-3751 Toll Free: 1-800-050 REP1 (1-800-350-7371) PRINTED ON RECYCLED PAPER

FEB-07-97 15:51 FROM: CONGRESSMAN STUPAK TO D O ID: 6169297725 PAGE 2/(illegible) Smokers gain rights (handwritten) Detroit Freepress through 'addict' label (handwritten) Fall 1995 FEB 07 1997 By John (illegible) Special to the Washington Post Smokers of America, take heart. Your deliverance is at hand. No longer can you be denied covered employment opportunities. No longer can you be forced to huddle in alleyways in sub-zero temperatures to indulge your habit. No longer must you bear without recourse, the indignities heaped upon you by condescending, nonsmoking co-workers. How has this come to pass? Who are your saviors? Why, none other than President Bill Clinton and Food and Drug Administration Commissioner David Kessler, who earlier this month transformed you from a despised and oppressed rabble into the newest legally

protected minority. Earlier this month, Clinton approved Kessler's finding that nicotine is an addictive drug. As a result, you are now federally recognized drug addicts. No longer are you responsible adult citizens who have foolishly chosen to run the risk of disease and death in the long term for the immediate gratification afforded by smoking. You are now victims of a "psychological substance use disorder." This means you are officially disabled and protected by the Americans with Disabilities Act (ADA). The ADA protects anyone who has or is regarded as having a physical or mental impairment that substantially limits a major life activity. This has been interpreted to include drug addicts and alcoholics. Before, when smoking was just a nasty habit, the act did not apply to you. Now that you are officially impaired, you are legally entitled to all the rights and privileges currently enjoyed by those undergoing 12-step programs. Before, employers could ask you whether you smoked during an employment interview. They could refuse to hire you even though you were the best-qualified applicant in order to save on their health care costs. They could deny you a promotion you had earned simply because you were a smoker. No longer. Now any of these actions would constitute blatant discrimination against the disabled. I do not wish to overstate the case. Life is not a bed of roses. The ADA will not guarantee you the right to smoke on the job. However, it does guarantee that any employer who decides to restrict or prohibit your ability to smoke on the job

cannot do so without "making reasonable accommodations" to your disability. Although there is a great deal of legal uncertainty as to what counts as reasonable accommodation, you may (handwritten) hi feel confident that being driven outside This is into freezing cold, driving rain or tropical What I have. heat in order to deal with your Thank you handicap will not qualify. very much You should also be aware that now for your that you are officially disabled, you are attention (handwritten) entitled to a workplace free of harassment based on your disability. This means that your employer is legally obligated to ensure that your supervisors and co-workers do not engage in conduct that would create an intimidating, hostile or offensive working environment for you as a smoker. A week ago, you had to put up with the superior attitude of your condescending nonsmoking co-workers. If they insisted on badgering you with paternalistic lectures about how smoking is bad for you or gracious advice on how to quit, if they greeted your trips outside for cigarette breaks with looks of disgust or pity, or worse, with fake hacking coughs or derisive comments about kissing an ashtray, you had no choice but to grin and bear it. Now, thanks to the president and the FDA commissioner, you can demand that your employer put a stop to such behavior and sue if he or she does not take "immediate and appropriate corrective action." So do not be offended the next time Kessler refers to you as a drug addict. Do not rebel against being characterized as one bereft of free will, mindlessly enslaved by tobacco and unable to decide for yourself what risks you wish to run. Try to see his statement for what it

is--an open invitation to the wonderful world of legally recognized victimhood with all the rights and benefits contained therein. Accept the invitation. If you do, I think you will find the workplace to be a more felicitous, accommodating and warmer place. Especially on those winter workdays when it is 10 below. John Hasnas is an (illegible) professor at the Georgetown University School of Business.