Mass. Employee Sues Firm for Firing Him Because He Smoked

A 30-year-old Massachusetts man who has smoked for more than a decade filed a lawsuit last week against The Scotts Co., alleging the lawn and garden company violated his privacy and civil rights when it fired him because he smokes.

Scott Rodrigues, of Bourne, claims he was fired from the lawn-care job he had for several weeks after a drug test came up positive for nicotine. But he said he wasn’t told he would be tested for the substance and was told the company would help him quit.

Rodrigues’ lawsuit, filed in Suffolk Superior Court, claims the company violated his rights under the Massachusetts Privacy Statute — which bars the unreasonable, substantial or serious interference of privacy — and other state law.

The lawsuit asks for unspecified damages and lawyer’s fees.

“In more general terms, this case challenges the right of an employer to control employees’ personal lives and activities by prohibiting legal private conduct the employer finds to be dangerous, distasteful or disagreeable,” the lawsuit said.

The Scotts Co., a subsidiary of Scotts-Miracle Gro Co. of Marysville, Ohio, instituted a policy early this year forbidding smoking to promote healthy lifestyles and hold down insurance costs. In the 20 states that allow it — including Massachusetts — the company refuses to hire smokers and tests all new employees for nicotine, said Jim King, Scotts’ vice president for corporate communications and investor relations.

King refused to comment specifically on Rodrigues’ case because the company’s lawyers hadn’t reviewed it, but said all new employees are told they must be tobacco-free and are told they will be tested for nicotine.

“It’s on our Web site. It’s on our terms of employment when they are hired,” King said. “We make it very clear to people what the expectation is related to tobacco use.”

But Rodrigues, who recently was laid off from another lawn-care job, said he never knew he would be tested for nicotine; he chewed Nicorette gum on his way to the drug test. His Massachusetts employers also knew he smoked because he had worked for the company previously, he said.

Rodrigues said he never smoked during work or while on break.

“I didn’t think you couldn’t smoke at home,” he said.

Rodrigues’ lawyer, Harvey Schwartz, said companies can require drug tests if they believe their employees are using the substances at work or if drug use would seriously interfere with the job. Neither of those are true in this case to justify a test for nicotine, he said.

“Being compelled to provide a urine sample and the information that the sample contains is a violation of his privacy, where it has no relation to his job,” Schwartz said.

Schwartz also said the case goes beyond smokers’ rights. If this practice stands, employers could dictate other aspects of their workers’ lives, he said.

“They can say you don’t exercise enough. We want every employee to attend a health club, and we’re going to check your attendance record there,” Schwartz said.

Nancy Shilepsky, an employment law attorney in Boston, said she had heard of similar lawsuits in the United States. Some states, but not Massachusetts, have instituted laws banning discrimination based on behavior outside work, she said.

“I think, though, our privacy statute is even better than that,” she said. “I think it covers more than that.”

But Denise Murphy, a Boston attorney who often defends companies in employment lawsuits, said any successful privacy lawsuit must prove the invasion of privacy was unreasonable and unwarranted. In this case, Murphy said, Scotts has a legitimate business reason for not hiring smokers.

“If they do that for everyone, and that’s their policy, I don’t see anything illegal about it,” she said. “Employers have a right to identify what makes a business productive. I’m not saying they have a right to be Big Brother, and I don’t think they are.”