A California Court of Appeal panel ruled 3 to 1 that workers hypersensitive to tobacco smoke are physically handicapped and employers who do not accommodate them are liable for job discrimination.  The court ruled that a handicapped individual is someone with a disability that substantially limits one or more major life activities and that the “definition of ‘major life activities’ includes breathing.”  Therefore, the employer should have moved sooner to bar smoking in a clerical unit where the employees worked.  The Court ruled that an employer “cannot hide behind its asserted good faith in order to avoid responsibility for discriminatory policies.”  See Milos, C., “Ruling says 2 Disabled by Smoke,” Fresno Bee, January 25, 1991, B2. On April 11, 1991, the California Supreme Court let stand the appellate court ruling.  See Tuller, D., “State Ruling on Smoke in Workplace,” San Francisco Chronicle, April 12, 1991, B16.

226 Cal.App.3d 1541, 277 Cal. Rptr. 557, 6.2 TPLR 2.337, 2 AD Cases 1203, No. F012316 (Cal. App. 5 Dist. 1991).