Smoker sues former employer, saying it violated his rights by firing him

Published 4:28 pm Thursday, November 30, 2006

A man has sued his former employer, saying it violated his privacy and civil rights when it fired him because he smokes cigarettes.

Scott Rodrigues, 30, says he was fired from a lawn-care job he had for several weeks at The Scotts Co. after a drug test came up positive for nicotine. 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 a state privacy law barring unreasonable, substantial or serious interference of privacy, and under other state law. The lawsuit seeks unspecified damages and lawyer’s fees.

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“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 healthful lifestyles and hold down insurance costs. In the 20 states that allow such policies — 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 he said 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 said that he never knew he would be tested for nicotine and that 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 is true in this case to justify a test for nicotine, he said.