U.S. Department of Justice

                                             Civil Rights Division

Office of the Assistant Attorney General     Washington, D.C.  20530

The Honorable Bart Stupak                                   MAY 2 1997
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

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.