Alleging that his employer discriminated against him in violation of the Americans With Disabilities Act (ADA) and the California Fair Employment and Housing Act, Service, who has worked for the railroad for over 40 years, “has produced evidence that exposure to tobacco smoke and its residue causes him to suffer severe asthma attacks necessitating the use of medication and sometimes hospitalization.” Union Pacific, while conceding that Service’s asthma constitutes a physical impairment within the meaning of the ADA, argued “that plaintiff’s asthma does not substantially limit his breathing because it can be controlled through mitigating measures, namely by using inhalers and taking hot showers.” The District Court denied the company’s motion for summary judgment, ruling that those remedies of inhalers and showers are helpful only after the plaintiff suffers an asthma attack, but do not prevent such an attack. The Court therefore ruled that, at “a minimum, plaintiff has raised a triable issue of material fact as to whether Union Pacific reasonably accommodated his asthma.”
153 F. Supp. 2d 1187, 2001 U.S. Dist. LEXIS 12182 (2001).