The employer has a policy of not hiring smokers.  An applicant who was not hired claimed that she was the victim of handicap discrimination in that: 1) she was addicted to nicotine and the use of tobacco; 2) she had degenerative impairment of various organs resulting from smoking; and 3) she was regarded as impaired by others since she was unable to work in a smoke-free environment and was a health risk to others.  The court found that there was illegal discrimination against the handicapped applicant and ordered the employer to hire her with back pay and to pay $10,000 damages for mental anguish suffered by the applicant.

However, in In the Matter of Fortunoff Fine Jewelry & Silverware, Inc. v. New York State Division of Human Rights, et al., 642 N.Y.S.2d 710, 11.5 TPLR 2.176, (A.D.2 Dept. 1996), the Appellate Division of the New York Supreme Court, the New York Appellate Division, Second Department, unanimously reversed the decision on May 20, 1996, ruling that smokers are not entitled to protection against discrimination as “addicts” or as “disabled persons,” even if they smoke only in their own homes and not on the job. This is so because the prospective employee’s “status as a smoker outside of the workplace, without more, does not constitute a disability within” New York’s anti-discrimination law.

No. 2-E-D-84-99582, N.Y. Executive Dept., State Division of Human Rights (1991).