Cigarette Smoker Denied Employment -- Florida Supreme Court Says OK

WORKPLACE May 1995

The Florida Supreme Court upheld a City of North Miami policy requiring job applicants to swear they have not smoked cigarettes within the past year (The City of North Miami v. Kurtz, No. 82-836, Apr. 20, 1995, see 625 So. 2d 899, (Fla. 3d DCA 1993); "Florida Supreme Court Upholds Smoker Screening Policy," National Report on Substance Abuse, May 11, 1995, p. 9).

Arlene Kurtz applied for a clerk-typist position and said she could not sign the affidavit that she was a nonsmoker. The interviewer told her that if she was not smoke-free for at least a year before applying with the city, then she would not be considered for the job.

A lower court had ruled that the policy was unconstitutional. By a 5-2 split, the Florida Supreme Court disagreed. Justice Ben Overton wrote in the opinion of the court that smokers do not have a reasonable expectation of privacy about their smoking, as they are "constantly required to reveal whether they smoke." For example, Overton wrote that:

When individuals are seated in a restaurant, they are asked whether they want a table in a smoking or non-smoking section. When individuals rent hotel or motel rooms, they are asked if they smoke so that management may ensure that certain rooms remain free from the smell of smoke odors. Likewise, when individuals rent cars they are asked if they smoke so that rental agencies can make proper accommodations to maintain vehicles for non-smokers.

Overton cautioned that the ruling does not apply to whether employers can require employees to stop smoking once hired, and does not apply to whether employees who signed the affidavit could start smoking or resume smoking.

In the dissenting opinion, Justice J. Kogan wrote that the city practice represents a "slippery slope" from which employers may begin to ask about other legal but perhaps undesirable behaviors employees might engage in outside the workplace.

[NewsBriefs has a copy of these opinions. If you would like a copy, contact us at 1899 L Street, NW, Suite 500, Washington, DC 20036, 202-835-9075. For more information, contact the Coalition on Smoking or Health, 1150 Connecticut Avenue, NW, Suite 820, Washington DC 20036, 202-452-1184.]