Leroy J. Pletten
8401 18 Mile Road #29
Sterling Heights MI 48313-3042
(810) 739-8343

Office of the Executive Secretariat
Equal Employment Opportunity Commission
1801 L Street, NW
Washington DC 20507Re: ADA Rulemaking,
65 Fed Reg (#41) 11019-23 (1 March 2000)
Dear EEOC:

This concerns the proposal to update the federal equal employment opportunity sector EEO regulation. The federal government is to be a model employer. Smokers inherently pose a direct threat to themselves and others. Smokers spew vast quantities of toxic chemicals, carbon monoxide, etc., in highly illegal quantities, a fact observed by the Surgeon General in the very first Report (1964), p 60, for example, carbon monoxide at 42,000 ppm vs the legal limit set by 29 CFR 1910.1000 in the average 50-100 range. It is because tobacco smoke contains quantities of toxic chemicals in illegally high amounts that smoking is so dangerous and highly fatal, to themselves, others and property. Details on this are at http://medicolegal.tripod.com/toxicchemicals.htm.

Smoking leads to smokers' impaired mental condition, addiction, acalculia, abulia, impaired impulse and ethical controls, so is the No. 1 cause of injuries/diseases/handicaps, in themselves and others. "Addiction to tobacco, like addiction to opium, is a specific disease . . . . Its protracted course, the enormous numbers affected, and spreading infection making smoking one of our most serious diseases." Lennox Johnston, "Cure of Tobacco-Smoking," 263 The Lancet 480, 482 (6 Sep 1952). What smokers' addiction, disease, commonly results in is fires, injuries and many, many, deaths, heart and lung diseases, all a matter of common knowledge in the public domain. Details on these medical facts are at http://medicolegal.tripod.com/tobaccoaddiction.htm, http://medicolegal.tripod.com/preventlungcancer.htm and http://medicolegal.tripod.com/preventheartdisease.htm.

Smokers have sued claiming that their addiction is a handicap. They have lost those cases. Fortunoff Fine Jewelry & Silverware, Inc v New York State Division of Human Rights, 227 App Div 2d 557; 642 NYS2d 710; 11.5 TPLR 2.176 (1996); and Stevens v Inland Waters, Inc, 220 Mich App 212; 559 NW2d 61 (1996). Smokers are dangerous, a direct threat to themselves, others, and property. The EEOC should abide by those decisions, and likewise exclude smokers from coverage.

Cigarettes are the gateway drug delivery agent, with the youngest age of onset. See Raymond Fleming, Howard Levanthal, Kathleen Glynn, and Joan Ershler, "The Role of Cigarettes in The Initiation And Progression Of Early Substance Use," 14 Addictive Behaviors (3) 261-272 (1989). Nicotine is the starter drug that leads smokers into the drug lifestyle. The alcoholism and drug problem arises disproportionately, almost exclusively, among smokers. Medically, "there would be no marijuana addicts . . . if people did not first learn to smoke cigarettes." See Frank L. Wood, M.D., What You Should Know About Tobacco (Wichita, KS: The Wichita Publishing Co, 1944), p 143. He also reported, "all of those who became alcohol addicts, in the experience of this writer [Wood], were first tobacco addicts." Details on the alcoholism and drug links to smoking are at http://medicolegal.tripod.com/preventalcoholism.htm and http://medicolegal.tripod.com/preventdrugs.htm.

"Smoking prevalence among active alcoholics approaches 90%." See J. T. Hayes, K. P. Offord, I. T. Croghan, D. R. Schroeder, R. D. Hurt (ASAM), D. E. Jorenby, "Alcoholism and Nicotine Dependence Treatment," 15 Journal of Addictive Diseases 135 (1996). "When we take a thorough drug history, we are forced to admit that nicotine--not alcohol or cannabis--is the drug of entry for most young people. See Emanuel Peluso and Lucy Silvay Peluso, "The Challenge of Treating Teenagers," 9 Alcoholism & Addiction (2) 21 (December 1988).

To aid in the "War on Drugs," don't include smokers. They set a bad example for all. The federal government should set an example of prevention.


EEOC26 April 2000

Due to the role of smoking in drunk driving and crime, it is almost exclusively smokers who fill the prisons, a fact recognized in the criminology profession since at least 1854. It is disproportionately smokers who commit the armed robberies, the rapes, the murders. "Nowhere is the practice of smoking more imbedded than in the nation's prisons and jails, where the proportion of smokers to non-smokers is many times higher than that of society in general." Doughty v Board, 731 F Supp 423, 424 (D Col, 1989).

"Nationwide, the [ratio] of smokers [to non-smokers] in prisons is 90 percent." McKinney v Anderson, 924 F2d 1500, 1507 n 21 (CA 9, 1991), affirmed and remanded, 509 US 25; 113 S Ct 2475; 125 L Ed 2d 22 (1993). Details are at http://medicolegal.tripod.com/preventcrime.htm. See also cases involving smokers in institutions for the criminally insane, e.g., Jacobs v Mich Mental Health Dept, 88 Mich App 503; 276 NW2d 627 (1979) and Rum River Lumber Co v State, 282 NW2d 882 (Minn, 1979) (cases showing the unmanageability of smokers). Smokers are dangerous on the job in more ways than one.

Smokers have more abortions, more divorces, more traffic offenses, more unlawful smoking on airlines, commit more SIDS-deaths among their own children, burn children with cigarettes, and commit disproportionately most suicides.

For example, "smoking is a predictor of divorce," see Bachman, et al., Smoking, Drinking, and Drug Use in Young Adulthood (Mahwah, NJ: Lawrence Erlbaum Assoc, Pub, 1997), p 70. Smokers have 53% more divorce than nonsmokers. See Doherty, et al., Cigarette Smoking and Divorce, 16 Families, Systems & Health 393-400 (1998). Details are at http://medicolegal.tripod.com/preventdivorce.htm.

Also, "smokers have excesses of suicide: risks; thoughts; attempts; and deaths . . . Suicide [is] strongly . . . associated with smoking . . . independent of age, gender, exercise, cholesterol, race, low local income, diabetes, MI [myocardial infarction], etc. [variables]. Ex-smokers had lower suicide rates than current smokers. The pooled dose-response statistic [is] highly significant. . . . Suicide is prospectively, independently, consistently, strongly, and highly significantly dose-response associated with smoking." See Bruce N. Leistikow, M.D., M.S., D. Martin, J. Jacobs, M.D., M.P.H., and C. Sherman, Ph.D., "A Meta-Analysis of the Prospective Association Between Smoking and Suicide," 15 Journal of Addictive Diseases 141 (1996). Michael J. Cowell and Brian L. Hirst,"Mortality Differences Between Smokers and Nonsmokers," 32 Transactions of the Society of Actuaries 185-261 (1980), Table 9, p 200, cite a 9-1 smoker-nonsmoker suicide ratio, the same ratio as lung cancer. Details on the smoking-suicide link are at http://medicolegal.tripod.com/preventsuicide.htm.

It is smokers who disproportionately refuse to wear seatbelts. "A . . . survey . . . showed that smokers were significantly (p <0.0001) less likely to wear seat belts (62%) than were nonsmokers (34%). This is presumably symptomatic of risk taking." 282 British Medical Journal 896 (14 March 1981). "Truly it may be said that a man drives as he lives. If his personal life is marked by caution, tolerance, foresight, and consideration for others, then he will drive in the same manner. If his personal life is devoid of these desirable characteristics, then his driving will be characterized by [same]. W. A. Tillman, M.D., and G. E. Hobbs, M.D., "The Accident-Prone Automobile Driver: A Study of the Psychiatric and Social Background," 106 American Journal of Psychiatry 321-331 (Nov 1949). Details on this issue are at http://medicolegal.tripod.com/seatbelts.htm.

These smoker traits are not acceptable in federal employees. The public is entitled to the best in employees, not the inconsiderate, the intolerant, the incautious. Smokers set a bad example for all, don't include them; exclude them.


EEOC26 April 2000

DiFranza, JR and Lew, RA, "Effect of Maternal Cigarette on Pregnancy Complications and Sudden Infant Death Syndrome," in 40 J Family Practice 385-394 (1995), say: "Each year, use of tobacco products is responsible for an estimated 19,000 to 141,000 tobacco-induced abortions, 32,000 to 61,000 infants born with low birthweight, and 14,000 to 26,000 infants who require admission to neonatal intensive care units . . . an estimated 1900 to 4800 infant deaths resulting from perinatal disorders, and 1200 to 2200 deaths from sudden infant death syndrome (SIDS)." "Tobacco use is an important preventable cause of abortions, low birthweight, and deaths from perinatal disorders and SIDS. All pregnant women should be advised that smoking places their unborn children in danger. . . . The cigarette . . . injures or kills a sizable proportion of its users when used as intended by the manufacturer. The harm caused by the cigarette is not limited to the user, however, as unborn children and infants are . . . harmed by other people's use of tobacco. Details are at http://medicolegal.tripod.com/preventsids.htm.

Litigation and arbitration precedents regularly uphold not hiring smokers in the first place, and firing them for their misconduct once hired. Smokers disproportionately commit employment offenses. Employers should not hire smokers in the first place. City of North Miami v Kurtz, 653 So 2d 1025; 10 IER Cases (BNA) 865; 10.3 TPLR 2.73 (Fla, 1995); Fortunoff Fine Jewelry & Silverware, Inc v New York State Division of Human Rights, 227 App Div 2d 557; 642 NYS2d 710; 11.5 TPLR 2.176 (1996); and Rossborough v Plymouth Police Dept, 426 Mass 1; 1997 Mass LEXIS 373 (1997).

See also guidance on not hiring smokers in The Smoke-Free Workplace by William L. Weis and Bruce W. Miller (NY: Prometheus Books, 1985), pages 101-106. It cites court precedents such as Spencer v Toussaint, 408 F Supp 1067 (ED Mich, 1976). Smoking is listed in the International Classification of Diseases (U.S. Government, DHHS, 1980), p 231, as "tobacco use disorder" in the "mental disorders" section. Smoking has been listed in the "organic mental disorders" section of the Diagnostic and Statistical Manual of Mental Disorders since 1980. Spencer "ruled that excluding people with a history of mental illness is not unreasonable." The most basic job requirement is that the worker be sane! As implicit in the psychiatric literature, a person who sucks poison in large quantities clearly is not! Sane people recoil in horror at the notion of ingesting poison, and typically prosecute people who would attempt to poison them.

A 1915 book with a section discussing not hiring smokers has this succinct quotation: "Cigarette users are unsafe. I would just as soon think of getting my employees out of the insane asylum as to employ cigarette users."--Quoting a railroad official, E. H. Harriman, in the book by Miami University Professor of Botany Bruce Fink, Tobacco (Cincinnati: The Abingdon Press, 1915), p 49. He is right.

Smokers regularly endanger and are a direct threat to fellow workers and public. See, for example, cases of disease or endangerment caused by smokers to nonsmokers on the job, Magaw v Middletown Bd of Education, 323 N J Super 1; 731 A2d 1196 (1999) cert den 1999 NJ LEXIS 1522 (1999); Broin v Philip Morris Cos, Inc, 19 Fla L Weekly D588; 641 So 2d 888 (Fla App, 1994) rev den 654 So 2d 919 (Fla, 1995); McCrocklin v Calif Dep't of Employment, 156 Cal App 3d 1067; 205 Cal Rptr 156 (1984); and Marie Lee v Employer Dep't of Public Welfare, # 15385, 11 Mass Lawyers Weekly 1190 (1983). See also cases suspending smokers for misconduct, of which these are examples:

Baltic Metal Products Co v United Electrical, Radio and Machine Workers of America, 8 Lab Arb (BNA) 782 (NY, 5 Nov 1947) (two weeks)

Curtiss-Wright Corp, Airplane Div v Int'l Union, United Automobile, Aircraft and Agricultural Implement Workers of American, 9 Lab Arb (BNA) 77 (Ohio, 29 Nov 1947) (one week)

Gold-Tex Fabrics Corp, Mill Div v Textile Workers Union of America, Local 925, 32 Lab Arb (BNA) 103 (SC, 24 Jan 1959) (one month)


EEOC26 April 2000

Haskell Mfg Co, Inc v Int'l Union of Electrical, Radio and Machine Workers, 64-2 Lab Arb Awards (CCH) 8647 (Penn, 13 May 1964) (thirty days)

Columbus Show Case Co v Sheetmetal Workers Int'l Ass'n, 65-1 Lab Arb Awards (CCH) 8347; 44 Lab Arb (BNA) 507 (Ohio, 7 April 1965) (two months)

Welby Division of Elgin Nat'l Watch Co v United Packinghouse, Food and Allied Workers, 66-1 Lab Arb Awards (CCH) 8105 (Ill, 30 Dec 1965) (30 days)

The Columbus Showcase Co v Sheet Metal Workers Int'l Ass'n, 67-2 Lab Arb Awards (CCH) 8577 (Ohio, 23 Aug 1967) (five weeks)

The Pantasote Co v United Rubber, Cork, Linoleum and Plastic Workers of America, 68-1 Lab Arb Awards (CCH) 8136 (W Va, 4 Dec 1967) (two months)

Olin Mathieson Chemical Corp, Indiana Army Ammunition Plant v Int'l Chemical Workers Union, 68-2 Lab Arb Awards (CCH) 8630; 51 Lab Arb (BNA) 97 (Indiana, 3 July 1968) (eleven months)

The Bunting Co, Inc v Upholsterers' Int'l Union of North America, 73-2 Lab Arb Awards (CCH) 8503 (21 Sep 1973) (ninety days)

American Synthetic Rubber Corp v United Cork, Rubber, Linoleum and Plastic Workers of America, 67 Lab Arb (BNA) 603 (Ky, 5 Oct 1976) (ten days)

U.S. Industrial Chemicals Co v Int'l Union of Operating Engineers, 77-1 Lab Arb Awards (CCH) 8084 (Tuscola, 15 Jan 1977) (4.5 months)

Converters Ink v Chicago Ink Workers, 68 Lab Arb (BNA) 593 (Ill, 17 March 1977) (six months)

Olympic Stain, Inc (Division of Comerco, Inc) v General Drivers and Dockhands, 77-2 Lab Arb Awards (CCH) 8383 (Ky, 15 Aug 1977) (six months)

Southwest Forest Industries, Inc v United Paperworkers Int'l Union, 84-2 Lab Arb Wards (CCH) 8432 (Missouri, 3 Aug 1984) (four months)

North Dakota Mill and Elevator Ass'n v American Federation of Grain Millers, 85-2 Lab Arb Awards (CCH) 8566 (ND, 1 Sep 1985) (9 months)

Van Waters & Rogers, Inc v Teamsters Local 407, 102 LA (BNA) 609 (15 Dec 1993) (30 day suspension, reduced from removal). Smokers are dangerous; don't include them.

Pursuant to a long line of cases following Keyser Canning Co v Klots Throwing Co, 94 W Va 346; 118 SE 521 (1923), smokers also are removed for their smoking, posing a direct threat to others, or otherwise contrary to the employment relationship. See for example,

Columbian Rope Co v United Farm Equipment and Metal Wrkrs, 7 Lab Arb (BNA) 450 (NY, 2 June 1947)

Standard Oil Co v Central States Petroleum Union, 19 Lab Arb (BNA) 795 (Ill, 13 Dec 1952)

Cit-Con Oil Corp v Oil, Chemical & Allied Workers International Union, 30 Lab Arb (BNA) 252 (Louisiana, 26 Feb 1958)

U.S. Industrial Chemical Co v International Union of Operating Engineers, 64-2 Lab Arb Awards (CCH) 8481 (Ill, 5 March 1964)

Caraco Ship Supply v Amalgamated Meat Cutters and Butcher Workmen of North America, 64-3 Lab Arb Awards (CCH) 8961 (Calif, 12 Aug 1964)

U.S. Powder Co, Division of Commercial Solvents Corp v International Union of District 50, United Mine Workers of America, 67-2 Lab Arb Awards (CCH) 8454 (Ill, 26 July 1967)


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Ward Furniture Mfg Co v United Furniture Workers of America, 68-2 Lab Arb Awards (CCH) 8702 (Ark, 1968)

Royce Chemical Co v Oil, Chemical and Atomic Workers International Union, 70-1 Lab Arb Awards (CCH) 8138 (NJ, 10 Oct 1969)

U.S. Plywood-Champion Papers, Inc, Del-Mar Industries Division v International Woodworkers of Am, 70-1 Lab Arb Awards (CCH) 8340 (Ga, 22 Jan 1970)

A. E. Staley Mfg Co v International Union, Allied Industrial Workers of Am, 71-1 Lab Arb Awards (CCH) 8203 (Ill, 27 Feb 1971)

Hercules Inc v International Chemical Workers, 74-2 Lab Arb Awards (CCH) 8487 (11 Oct 1974)

Illinois Fruit & Produce Corp v International Bro of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 66 Lab Arb (BNA) 498 (28 Jan 1976)

Wisconsin Steel Coal Mines of International Harvester Co v Progressive Mine Workers of America, 76-2 Lab Arb Awards (CCH) 8348 (17 April 1976)

Gladieux Food Service v International Ass'n of Machinists and Aerospace Workers, 70 Lab Arb (BNA) 544 (Penn, 1 March 1978)

Bostik West, Division of USM Corp v Oil, Chemical and Atomic Workers International Union, 78-2 Lab Arb Awards (CCH) 8545; 71 Lab Arb (BNA) 954 (Calif, 1 Nov 1978)

Consolidation Coal Co, Robinson Run Mine, Jones Run Portal v United Mine Workers of Am, 82-2 Lab Arb Awards (CCH) 8600 (W Va, 9 Sep 1982)

Olin Corp, McIntosh Plant v International Ass'n of Machinists, 83-2 Lab Arb Awards (CCH) 8521; 81 Lab Arb (BNA) 644 (Alabama, 29 Sep 1983)

Golden v Communication Technology Corp, 36 E.P.D. 35,095 (D ND Ga, 30 Jan 1985)

Moore v Inmont Corp, 608 F Supp 919 (D WD NC, 4 April 1985)

Crockett v Eckerd Drugs of North Carolina, Inc, 615 F Supp 528 (WD NC, 1985)

Grusendorf v City of Oklahoma City, 816 F2d 539; 2 IER Cases (BNA) 51 (CA 10, 17 April 1987)

ADM/Growmark River Systems, Inc v Int'l Longshoremen's Ass'n, Local 1765, 99 Lab Arb (BNA) 1033 (Missouri, 21 Aug 1992)

Century Products Co v Internat'l Ass''n of Machinists, District No. 28, 101 LA (BNA) 1 (16 April 1993) (smoker carrying cigarette on "automatic pilot" (addiction, abulia) is not a defense, no distinction from, carrying it consciously in violation of the rule)

Stevens v Inland Waters, Inc, 220 Mich App 212; 559 NW2d 61 (1996) (smoking is not a protected handicap, thus upholding firing the smoker)

Clark County School District v Education Support Employees' Ass'n, 108 LA (BNA) 1125 (13 May 1997) (school bus driver discharged for allowing children to smoke on bus, and other misconduct).

Details on suspending and firing smokers are at http://medicolegal.tripod.com/donthire.htm.

Smoking disproportionately begins in youth, and is thus, in adulthood, the unlawful progeny of illegal activity, the "fruit of the poisonous tree." This has been traced to at least 1927--30% of 6 year old boys; 50% of "boys between 9 and 10"; 88% of boys over 11, reported by Prof. W. E. Dixon, On Tobacco, 17 Canadian Med Ass'n J 1531 (Dec 1927). "The first step toward addiction may be as innocent as a boy's puff on a cigarette in an alleyway," said the U.S. Supreme Court in Robinson v California, 370 US 660, 670; 82 S Ct 1417; 8 L Ed 2d 758 (1962).


EEOC26 April 2000

The government's own analysts recognize that adult smokers would typically not be smoking if they had not begun illegally as children. See the Food and Drug Administration (FDA) rule entitled "Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents." 61 Fed Reg 44,396 (28 Aug 1996) (resulting rule codified at 21 CFR 801, et al.). The FDA found that "cigarette and smokeless tobacco use begins almost exclusively in childhood and adolescence." 61 Fed Reg 45239. Smoking begins in crime, and continues that way. They are not "the best and brightest," but the converse. Give deference to the FDA analysis. In the public interest, don't include smokers; exclude them.

"The physician must recognize the fact that smoking is a universal affair . . . harmful . . . to normal people. . . . [changing them into injured category]." Schwartz, Herbert F., M.D., "Smoking and Tuberculosis," 45 New York State Journal of Medicine (14) 1539-1542 (15 July 1945).

And now: "Over 37 million people (one of every six Americans alive today) will die from cigarette smoking years before they otherwise would." See the U.S. Department of Health, Education and Welfare, National Institute on Drug Abuse (NIDA), book, Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581, p v (Dec 1977).

The Royal College of Physicians of London, in its book Smoking and Health Now (London: Pitman Medical and Scientific Publishing Co, 1971), p 9, declared the smoking-caused death toll a "holocaust" due to the then "annual death toll of some 27,500." If 27,500 deaths is a "holocaust"--and it is--37 million is (in contrast to the Nazi 6 million holocaust), a six fold+holocaust. That is above the World War II "crimes against humanity" level for which prosecutions occurred in The Nurnberg Trial, 6 FRD 69 (1946).

Tobacco products have their disgraceful origin in slavery. Tobacco farmers began the major use of slaves in the U.S. See Glenn Porter, ed., Encyclopedia of American Economic History, Vol II (NY: Charles Scribner's Sons, 1980), "Slavery," pp 552-561. It says "of the American slave population . . . most worked in tobacco," p 552. Slavers committed rape; the 1860 census showed 588,000 mulatto women. Source: Barbara Goldsmith, Other Powers (NY: Alfred A. Knopf, 1998), p 154. "Miscegenation, most typically between white men and black women, and the consequent mixed offspring of such unions, was one of the most bizarre aspects of American slavery. The sexual exploitation by white masters of their female slaves was a conspicuous part of Southern life." See Page Smith, Ph.D., A People's History of the Young Republic, Vol 3, The Shaping of America (New York: McGraw-Hill Book Co, 1980), p 447. See also the Congressional Globe, 31st Cong, I Sess, App, 1586 (19 Aug 1850). Tobacco is a leftover loathsome badge of slavery, initiated by tobacco farmers disproportionately, something so awful and disgraceful as to have been prohibited by a special-purpose constitutional amendment, the Thirteenth Amendment. Details are at http://medicolegal.tripod.com/slaveryillegal.htm.

For workplace safety and morals, smokers must therefore be excluded from coverage. The federal government by law, 5 USC 7902.(d), must set an example of safety, be proactive on safety, not reactive. It is too late to wait until the smoker kills himself, a coworker, or a member of the public by a fire, injury, or disease. Please emphasize this pro-active aspect, the duty to prevent injuries, diseases, and deaths caused by smokers. Exclude smokers from coverage, smoking is the only handicap (mental handicap, addiction) that causes others, indeed, the No. 1 cause of such harm overall.

                                                            Leroy J. Pletten

                                                                            Leroy J. Pletten