ADA Case: Nicotine Addiction as Disability

This document presents a legal case study concerning a motion for summary judgment in a case where an employee, Nicholas Taylor, sued Whitney Industries, Inc. under the Americans with Disabilities Act (ADA). The core issue is whether nicotine addiction qualifies as a disability under the ADA. Whitney argues that it does not, citing that nicotine addiction does not substantially limit any major life activity, is remediable, and is not considered a disability by courts or government agencies. The document also distinguishes nicotine addiction from alcohol addiction, which has sometimes been considered a disability under the ADA. The conclusion urges the court to grant the motion for summary judgment, as the plaintiff cannot prove he has a disability under the ADA.

IN THE UNITED STATES DISTRICT COURT
FOR THE ANYWHERE DISTRICT
Nicholas Taylor, )
Plaintiff )
v. ) No. 07-0158
Whitney Industries, Inc., )
Defendant )
________________________)
MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
Pursuant to Fed. Rule Civ. P. 56(c), Defendant Whitney Industries Inc.
(“Whitney”) respectfully requests that this Court grant its Motion for Summary
Judgment.
STATEMENT OF FACTS
This action, brought by Plaintiff Nicholas Taylor (Taylor) against Whitney arises
out of the following factual situation. All facts are undisputed.
Whitney is a large national corporation with approximately 1000 employees. It
was decided by Whitney that they would charge its employees who smoke an additional
$100 per month for health insurance. This decision was based on both Whitneys desire to
control spiraling health care costs and to promote a healthy lifestyle for its employees.
The surcharge of $100 reflects the actual costs to Whitney of increased health care costs
attributable to smoking. Plaintiff Taylor objected to the new policy and after her charge

against the company was rejected by the Equal Employment Opportunity Commission,
sued the company, alleging that the new policy violates the Americans with Disabilities
Act because his addiction to smoking is a “disability” within the meaning of the Act.
I.
STANDARD FOR SUMMARY JUDGMENT
Summary judgment shall be entered "forthwith" if the moving papers before the
Court establish "that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law" Fed. R. Civ. P. 56(c). Whitney will
demonstrate that there is now genuine issue as to any material fact in this case and that it
is thus entitled to summary judgment.
II.
THE ADA PROTECTS ONLY THOSE WITH A DISABILITY
WHICH SUBSTANTIALLY LIMITS A MAJOR LIFE ACTIVITY
The Americans with Disabilities Act (“ADA” or the “Act”), 42 U.S.C. § 12101 –
12213 (2000), was signed into law in 90 to offer protection to those with disabilities. The
ADA prohibits discrimination in all employment practices, including application
procedures, hiring, firing, advancement, compensation, and other terms, conditions, and
privileges of employment. Id. § 12112. Taylor has alleged that Whitney’s policy of
charging employees who smoke a monthly insurance surcharge is discrimination with
regard to compensation. The Act applies to employers with 15 or more employees. §
12111. Whitney acknowledges that it is covered by the Act.
Employment discrimination is prohibited against individuals with disabilities. An
individual is considered to have a “disability” if he or she has a physical or mental
impairment that substantially limits one or more major life activities, has a record or such
impairment, or is regarded as having such an impairment. Id. § 12102. The Equal

Employment Opportunity Commission has issued regulations to provide additional
guidance regarding the interpretation of the term “disability” Those regulations provide
that the term “substantially limits” means that one is unable to perform a major life
activity that average person in the general population can perform. 29 CFR § 1630.2
(2007). “Major life activities” means functions such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Id.
To establish an ADA disability, a plaintiff must demonstrate the he is impaired, that the
life activity that is impaired is a “major life activity,” and that the impairment
“substantially limits” that life activity. Roig v. Miami Federal Credit Union, 353 F. Sup.
2d 1213, 1216 (S.D. Fla. 2005). The requirement that a plaintiff prove that the
impairment “substantially limits a major life activity is a severe standard and must
include permanent or long-term restrictions on performance of the life activity. Id.
Whitney will show that nicotine addiction is not an impairment that substantially limits
any major life activity and thus it is not a disability under the ADA.
III.
NICOTINE ADDICTION IS NOT A DISABILITY UNDER THE ADA
It is highly unlikely that Congress intended that these addicted to nicotine would
be covered by the ADA. Section 12201b of the Act specifically provides that “nothing in
this Act shall be construed to preclude the prohibition of, or the imposition of restrictions
on, smoking in places of employment . . . . It is inconceivable that Congress would
intend to treat nicotine addiction as a disability while simultaneously allowing employers
to prohibit smoking in the workplace.
Moreover, the cases that have examined whether nicotine addiction constitutes a
disability under the Act have consistently found that smokers are not covered by the

ADA. In Brashear v. Simms, 138 F. Supp. 2d 693 (D. Md. ), it was claimed by a
Maryland prisoner who was a smoker that the states ban on use or possession of tobacco
in prisons violated his right to be free from discrimination under the ADA. In dismissing
the case as “frivolous as a matter of law,” id. at 694, the court stated that “common sense
compels the conclusion that smoking, whether denominated as ‘nicotine addiction’ or
not, is not a ‘disability’ within the meaning of the Act.” Id. at 695. The court further
noted that Congress could not possibly have intended the “absurd result” of including
smoking within the definition of “disability,” which would result in approximately one-
fourth of the American public being disabled. Id. The court concluded,
In any event, both smoking and “nicotine addiction” are readily
remediable, either by quitting smoking outright through an act of
willpower (albeit easier for some than others), or by the use of such items
as nicotine patches . . . . If the smokers’ nicotine addiction is thus
remediable, either such addiction nor smoking itself qualifies as a
disability within the coverage of the ADA, under well-settled Supreme
Court precedent.
Id.
The “well-settled” Supreme Court precedent referred to in Brashear was Sutton v.
United Air Lines, Inc., 527 L. Ed. 471 (1999), in which the Court held that a person
whose physical or mental impairment (in that case, severe myopia) is corrected by
medication or other measures does not have an impairment that “substantially limits” a
major life activity. Such an impairment, if corrected, does not “substantially limit” a
major life activity. Id. at 482-83.
Thus, even assuming that nicotine addiction is a “disability” under the Act,
because Taylor can correct this impairment by quitting smoking, none of his major life

activities are substantially limited by the impairment, and thus he is not entitled to the
protections of the ADA.
In the aforementioned decision of Stevens v. Inland Waters, Inc., 559
N.W.2d 61 (Mich. App. 1996), a security guard’s employment was terminated for
repeatedly smoking on company property and refusing to quit smoking. The guard
bought an action under the Michigan Handicappers’ Civil Rights Act, which prohibited
employers from discriminating against disabled individuals. The Michigan statue was
highly similar in it’s purpose and language to that of the ADA. The court affirmed the
trail court’s decision that smoking was not a handicap. The court noted that the guard’s
addiction to nicotine did not substantially limit his major life activities because his
smoking and addiction did not interfere with caring for himself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning or smoking. Id. at 64. The court
further stated that to label nicotine addiction as a condition that substantially impairs a
major life activity would be inconsistent with the Michigan statute (which included
alcoholism but not nicotine addiction within the definition of a “handicap”) and would do
a “gross disservice” to the truly handicapped. Id. at 65.
Finally government agencies, such as the Department of Housing and Urban
Development have also concluded that smoking is not a disability that warrants
protection under the ADA. Christopher Valleau, If You’re Smoking You’re Fired: How
Tobacco Could be Dangerous to More Than Just Your Health, 10 DePaul Health Care
457, 477 (2007).
Having said that, Taylors addiction to smoking is not a disability within the
meaning of the ADA for the following reasons:

 Congress could not have intended to include smoking as a disability when such
would render approximately 25 percent of the American population disabled;
 Smoking and nicotine addiction are remediable, thus disqualifying them from the
ADA’s definition of a disability;
 The few counts that have considered the issue have consistently found that
smoker’s are not covered by the ADA; and
 Government agencies have concluded that smoking is not a disability.
IV.
NICOTINE ADDICTION IS DISTINGUISHABLE FROM
ALCOHOL ADDICTION
Alcohol addiction has been viewed as an impairment under the ADA. Bailey v.
Georgia-Pacific Corp., 306 F.3d 1162, 1167 (1st Circuit 2002). Whitney anticipates that
Taylor will argue that nicotine addiction is analogous to alcohol addiction and should
thus be viewed as a disability under the ADA. Courts, however, have been unwilling to
automatically hold that alcoholism is a disability under the ADA. In fact, courts that
have considered the issue have found that whether a person has a disability under the
ADA is an “individualized inquiry,” Sutton, 527 U.S. at 483, and a party alleging that
they has a disability must offer evidence demonstrating that the limitation caused by the
impairment is substantially in terms of his or her own experience. Thus, “courts have
generally refused to recognize alcoholism as a per se disability under the ADA.” Bailey,
306 F.3d at 1168.
For alcoholism to constitute a disability under the ADA, a plaintiff must present
evidence that the alcoholism causes a substantial impairment that limits ones from

participating in a major life activity. Roig, 353 F. Supp. 2d at 1216. Thus, alcohol
addiction, which has been found in certain narrow cases to constitute a disability under
the ADA (when evidence is presented that it substantially impairs one from participating
in a major life activity) is not analogous to nicotine addiction, which has never been
found to constitute such a disability. Accordingly, any argument by Taylor that nicotine
addiction should be treated similarly to alcohol addiction as a disability under the ADA
would be unguided.
V.
CONCLUSION
To survive a summary judgment motion, an ADA plaintiff must meet the
threshold burden of proving that he is disabled under the ADA. Schluter v. Indus. Coils,
Inc., 928 F. Supp. 1437, 1443 (W.D. 1996). Because smoking or nicotine addiction is not
a disability under the ADA, Plaintiff cannot prove he has a disability, and thus this Court
is respectively urged to grant Defendants Motion for Summary Judgment.
Respectfully submitted,
_____________________
Date: ________________ Attorneys for Defendant