Letter 206

June 13, 1997

The Honorable Earl Pomeroy

U.S. House of Representatives

Washington, D.C. 20515

Dear Congressman Pomeroy:

This is in response to your letter on behalf of your constituent, xxxxxxxxxxxx, who asserts that the North Dakota State Legislature has violated the Americans with Disabilities Act of 1990 (ADA) by failing to enact legislation to ban smoking in places of public accommodation. Please excuse our delay in responding to you.

The ADA prohibits discrimination on the basis of disability. The ADA clearly permits a ban on smoking, but it only requires covered entities to make reasonable modifications in their policies and practices that are necessary to enable individuals with disabilities to participate in their programs and activities.

The Department of Justice has declined to state categorically that sensitivity to cigarette smoke is a disability because the degree of impairment varies among individuals. To be legally recognized as a disability, a physical or mental impairment must substantially limit one or more major life activities of an affected individual. Thus, the determination as to whether sensitivity to smoke is a covered disability must be made using the same case-by-case analysis that is applied to all other physical or mental impairments.

In some cases, an individual's respiratory or neurological functioning may be so severely affected by sensitivity to cigarette smoke that he or she will be considered disabled. Such an individual would be entitled to all of the protections afforded by the ADA. These protections may include a ban on smoking in a specific covered facility if such a ban can be imposed without fundamentally altering the nature of the business or program. In other cases, however, an individual's sensitivity to smoke will not constitute a disability because the individual's major life activity of breathing is affected, but not substantially impaired. In this situation, an individual would not be entitled to claim ADA protection.

After a determination is reached that a person is an individual with a disability who is entitled to claim the protection of the ADA, it is necessary to determine if a requested modification, such as a ban on smoking, is "reasonable." This determination involves a fact-specific, case-by-case inquiry that considers, among other factors, the effectiveness of the modification in light of the nature of the disability in question and its effect on the organization that would implement it. Staron v. McDonalds Corp., 51 F.3d 353 (2d Cir. 1995) (Lower court dismissal was reversed and remanded to permit plaintiffs to offer evidence that a requested smoking ban was a reasonable modification).

Because of the case-by-case nature of these determinations, the ADA regulations do not require an absolute ban on smoking.

Therefore, the failure of the North Dakota State Legislature to impose a ban on smoking in public places does not violate the ADA.

I hope this information is helpful to you in responding to your constituent.