“If you have a family history of lung cancer, you probably should not even be around cigarette smokers,” says a researcher who showed the people with a particular gene can easily get lung cancer from very light smoking, and even from exposure to secondhand tobacco smoke. This research may provide strong legal remedies for nonsmokers, says the man who started the nonsmokers’ rights movement and helped establish legal protections for nonsmokers.
Although it’s long been known that secondhand tobacco smoke causes lung cancer in nonsmokers, this alone did not entitle them to any special protection under the Americans With Disabilities Act [ADA], says public interest law professor John Banzhaf, Executive Director of Action on Smoking and Health (ASH).
But now those who can establish — either through genetic testing or a family history of cancer — that they have a special sensitivity to tobacco smoke because of this gene may be protected under the ADA, and therefore able to demand that employers make a “reasonable accommodation,” or that public entities and public accommodations make a “reasonable modification,” to protect them from exposure to even small amounts of tobacco smoke.
Since, according to the U.S. Surgeon General and the U.S. Public Health Service, there is no safe level of exposure to tobacco smoke, the only “accommodation” or “modification” which will protect nonsmokers with this cancer gene is a total smoking ban. Moreover, in view of the huge number of total smoking bans both indoors and sometimes outdoors, it’s clear that total smoking bans are “reasonable,” argues law professor Banzhaf.
Banzhaf notes that he has been involved in several cases where persons who had a particular sensitivity to tobacco smoke were held to be “handicapped” or “disabled” persons, and therefore entitled to smoking bans in their workplaces or other areas. But the number of people entitled to this protection were small, since they have to show that they had a particular disease which made them especially sensitive to exposure to tobacco smoke, he says.
Now, however, the door may be opened much wider, because a much larger number of people have a history of cancer in their families. Based upon this new research, judges and regulators may be persuaded that they too are entitled to smoke-free workplaces, restaurants, and other places they frequent.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law at GWU,
FAMRI Dr. William Cahan Distinguished Professor,
FELLOW, World Technology Network, and
Executive Director and Chief Counsel
Action on Smoking and Health (ASH)
America’s First Antismoking Organization
2013 H Street, NW
Washington, DC 20006, USA
(202) 659-4310 // (703) 527-8418