Homeyer v. Stanley Tulchin Associates, Inc., et al.

A woman who suffers from chronic severe allergic rhinitis and sinusitis sought a smoke-free work environment and sued her former employer after it “repeatedly refused to provide” the Plaintiff with a reasonable accommodation of her disability.  Shortly after the Plaintiff filed an Americans With Disabilities Act (ADA) discrimination claim with the Equal Employment Opportunity Commission and a worker’s compensation claim, she was terminated.  So, she filed suit, alleging violations of the ADA and a state statute that prohibits retaliatory discharge.  A federal judge granted the defendants’ motion to dismiss the complaint, saying that not every impairment that affects a person’s major life activities is a substantially limiting one.  “Homeyer does not, and cannot, allege that her sensitivity to [environmental tobacco smoke] substantially limits her ability to find employment as a typist generally.  Thus, Homeyer is not a qualified individual with a disability, and, accordingly, is not entitled to the protections of the ADA.”

On July 31, 1996, the U.S. Circuit Court of Appeals for the 7th Circuit, at 91 F.3d 959, 11.5 TPLR 2.173, 5 AD Cases 1198, 1996 U.S. App. LEXIS 18867, (7th Cir. 1996), unanimously reversed and remanded the case to the trial court.  Noting that the district court had ignored Homeyer’s claim that she was disabled in that her breathing, a major life activity, was affected by ETS, the court of appeals ruled that “we cannot say at this stage that it would be impossible for her to show that her chronic severe allergic rhinitis and sinusitis either alone or in combination with ETS substantially limits her ability to breathe.”  Additionally, the court of appeals found “premature the district court’s conclusion that Homeyer cannot establish that her major life function of working is substantially limited because she cannot prove that ‘her sensitivity to ETS’ forecloses her ability to work as a typist” and that “a motion to dismiss was simply the wrong vehicle for a disability determination in this case.”  See Sotos, J., “Exposure to Cigarette Smoke May Implicate ADA,” Chicago Law Bulletin, September 26, 1996, 5.

1995 U.S. Dist. LEXIS 17114 (U.S. Dist. Ct., No. Dist. Ill. 1995).