Mass. smoker sues over firing

A Buzzards Bay man has filed a civil rights lawsuit against The Scotts Company, the lawn care giant, which fired him after a drug test showed nicotine in his urine, putting him in violation of a company policy forbidding employees to smoke on or off the job.

The suit, filed today in Suffolk Superior Court, is believed to be the first in the state brought by an employee who was terminated for engaging in legal activities away from the workplace.

Scotts announced last year that it would no longer employ smokers, a policy company officials said was motivated by a desire to improve employee wellness and drive down healthcare costs. But civil libertarians say the policy is a violation of personal privacy rights, and could be used to mask age discrimination or other illegal behavior.

"Employers should be greatly concerned about how employees perform their jobs and what happens in the workplace, but how employees want to lead their private lives is their own business," said Boston lawyer Harvey A. Schwartz, who represents Scott Rodrigues in his lawsuit against Scotts, which is based in Marysville, Ohio.

"Next they're going to say, 'You don't get enough exercise' or 'Both your parents died of a heart attack at age 45 so we don't want to hire you because you're more likely to need medical care,' " Schwartz said. "I don't think anybody ought to be smoking cigarettes, but as long as it's legal it's none of the employer's business as long as it doesn't impact the workplace."

Scotts officials could not be reached for comment.

The case illustrates the latest in a series of aggressive anti-smoking policies being adopted nationwide. In Massachusetts last year, a Boston Housing Court jury ruled that a South Boston couple could be evicted from their apartment for heavy smoking, even though smoking was allowed in their lease.

Rodrigues, 30, a pack-a-day smoker when he was hired by Scotts earlier this year, was fired in September after a drug test showed high nicotine levels in his urine. At the time of the test, Rodrigues was down to about a half-dozen cigarettes daily, but he believes the test may have registered nicotine in his system as a result of the Nicorette anti-smoking gum he had been chewing in an effort to kick the habit.

"That was the really crazy thing -- I was trying to stop smoking," he said.

Rodrigues said he decided to file suit because, "What's to make them stop at just cigarettes? If they're a Republican company, can they try and figure out who you vote for and if you vote for the Democrats they'll fire you? What if you don't want to hire women, so if you have Y chromosome in your drug test you fail?

"It sounds a little extreme," he added, "but it also would have sounded extreme to me five years ago if you told me you could be fired if nicotine is found in your drug test."
(By Sacha Pfeiffer, Globe staff)