Monday, February 4, 2008

ERISA, Section 510 Discrimination, and Smoking

Cigarette Thanks to Christopher Timmermans for sending me this interesting case concerning ERISA and companies who wish to rid themselves of employees who smoke.

This past Wednesday, an employee's claim for violations of ERISA for firing him after he tested positive for nicotine survived a motion to dismiss. As is fairly well known, The Scotts Company does not tolerate smoking by its employees--even off duty.

Judge O'Toole writes in the District of Massachusetts opinion:

In this action, the plaintiff claims that Scotts (as the defendant companies are collectively designated) wrongly terminated his incipient employment after a required urine test confirmed the presence of nicotine, indicating that the plaintiff is a smoker of tobacco. The defendants have a policy against employing smokers. The plaintiff claims that the enforcement of that policy against him was wrongful under Massachusetts law and also constituted unlawful discrimination under the federal Employee Retirement Income Security Act (ERISA) . . .

Rodrigues' position is that in terminating his short-lived employment because he was a smoker, Scotts “interfer[ed] with the attainment of [a] right” to which he would have become entitled-participation in the Scotts employee benefits plan-if he had remained employed . . .

“The ultimate inquiry in a section 510 case is whether the employment action was taken with the specific intent of interfering with the employee's ERISA benefits.” Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir.1995). Two related points deserve notice. First, section 510 does not apply to those instances where “the loss of benefits was a mere consequence of, but not a motivating factor behind, a termination of employment.” Barbour, 63 F.3d at 37. And second, section 510 “relates to discriminatory conduct directed against individuals, not to actions involving the plan in general.” Aronson v. Servus Rubber, Div. of Chromalloy, 730 F.2d 12, 16 (1st Cir.1984). The resolution of each of these issues may depend on what facts the plaintiff may ultimately prove. Scotts' expectation that the facts ultimately proved (or not proved) will resolve the issues in its favor is not enough to warrant dismissal on a Rule 12(b)(6) motion.

The full cite for the opinion is Rodrigues v. Scotts Co., LLC, 07-10104 (D. Mass. Jan. 30, 2008) (Westlaw subscription required). And documents from the case are here, here, and here.

I don't know the underlying facts here, but I think it may well be difficult for the plaintiff to prove sufficient facts that his firing was motivated to interfere with his benefits.  That being said, perhaps the point can be made that because Scotts believes smokers will cost the company more in health care, they fired the worker so that he would not become eligible for the health plan and start claiming benefits under the plan.

Anyway, should be an interesting case to follow.


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I can't see why employers wouldn't be able to refuse to hire employees who will possibly cost them more money for health care and lost productivity, both due to smoking related illnesses.

Posted by: Pete | Feb 4, 2008 11:42:30 AM

Thanks for providing this case.
Personally, I think the plaintiff would have had a much stronger case if he had been employed at the firm for a few years, and then started smoking.
Don Levit

Posted by: Don L. | Feb 5, 2008 8:52:30 AM

I'm learning and I have a couple of questions. I understand the benefit plan thought but from a different perspective, is Scott and other employers like them showing discrimination against people that smoke by not allowing them to be employed. If I am overweight is it not discrimination to not hire me because I am obese?


Posted by: fran | Feb 5, 2008 12:07:39 PM

In considering the motion to dismiss for failure to state a claim, the opinion narrowly construed the idea that a court applies the law to the facts alleged in the complaint, without considering anything outside the complaint. The court accepted as hypothetically true the plaintiff's allegation that he was an employee, and declined to consider the defendant's reference to a document that it described as proving that the plaintiff never was an employee. Scotts argued that the plaintiff never was an employee because the offer was conditioned on satisfaction of the smoke-free conditions. I say nothing about the merits or weaknesses of that argument.

We might not learn much about this court's view of whether it's possible to interfere with the attainment of an employee benefit that the plan does not provide because the defendant might yet win the never-an-employee point in a summary-judgment motion.

Posted by: Peter Gulia | Feb 5, 2008 12:30:44 PM

If health care costs are the reason for not hiring smokers, and that becomes an acceptable practice, then it should be legal not to hire anyone with a pr-existing condition that requires medical costs. Obesity, for instance. What about a pregnant women, her health care costs are multiples more than a male? Predisposition to migranes, eats too much red meat, drinks alcohol, uses a blood thinner or other pharmacuitical that has adverse sideaffec ts (all of them), and the list goes on. I am not so worried about the smoker, I am worried about what can happen with other things as health care costs rise regardless of smokers, what else can we classify as pre existing to fire people?

Posted by: csj | Dec 31, 2008 9:04:35 AM

Talk about smoking fumes! I am now getting angry about the way I am being discriminated against because I smoke. I have put up with this for some time now, but now I have looked in two cities and can't find a place to live because none of them will rent to me if I smoke! Huh?! Okay, first, most of them are condos with separate ventilation, second, I smoke outside because I don't' want to affect those inside. The message I am getting here is that I could end up homeless if I don't stop smoking. I worked at a homeless shelter at one point in life, and they smoke there for free! How am I expected to pay high CA rents of the tune of $2500 for a decent place and they are going to command what I do? Yes, this is discrimination and it is wrong and it is a big bully! I have friends that died and got cancer only right after they quit and then I have loved ones who smoked all their lives and lived to be past 80 years old! I just wonder why it's okay to drink in bars, but now we smokers have no where to go at all. If health care and health is the big issue, then why do they serve us food that is overwhelming proven to be made from fat, sugar, salt, and preservatives, why do they have bars open for people to drink, and why do they open strip clubs where diseases could be spread? A recent article released shows how cigarette butts can prove to be useful in stopping oil leaks such as the fierce one we are battling now. In addition, I have read that 50% of the tax money from cigarettes goes to pay for much needed social services for people. As a 20 year smoker, I agree that smoke is harmful and I do all I can to respect other people's right to stay smoke free and not be exposed to harmful toxins. I go out of my way to follow the city rules by staying away from buildings, public places, and open doors, you will likely find me in a corner alone. I also put my cigarette out and keep my butt to throw away as soon as I find a trash can to discard (of which more around cities would be helpful.) I am always extremely careful to make sure the butt is not still burning to prevent fire hazards as well. I am tired of being treated like a second class citizen because I smoke. I grew up in a family of smokers, no excuse, and I have been ADDICTED for a long time. I have tried to quit on many occasions, but with layoffs looming, stress at home and work, moving soon, and more, when I try to quit, it truly feels like it would do me in, I would go nuts as I have a mental condition to manage. I am a very charitable person, humanity is my love and I seek ways to and do serve constantly. Yet, people who don't even know me will see me in my corner smoking and give me dirty looks, cough like it is affecting them so far away, and some have even gone as far as to say something mean to me. I feel this is discrimination and unnecessary. I am a person. I have to cope when I am walking to and from work and school with people driving vehicles that are in need of smog and pollution from all of these transportation needs. Believe me, those toxins make me have to hold my breath it is so nasty and harmful. I have had headaches at work when someone sprays their cologne or perfume all around the office, not to mention those who just smell like they haven't bathed in days. In short, we don't all always like what we see and we are all different, different vices to overcome, choices that others may not approve of, etc. How many of us really want anyone to get in our face about it? How many of us don't already understand and are doing the best we can with what we have? I will be respectful of your wishes, please be more understanding and gracious that smoking is an addiction, a disease. Would you treat someone with Aids with such disdain? Oh yes, some of us still do.

Posted by: Bambi | Jul 15, 2010 4:36:32 PM

Can someone please give me a list of states that do not allow discrimination against smoker's?

Posted by: Michelle Ludwick | Jan 22, 2014 12:37:45 PM

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