Thursday, January 12, 2012

Rosa Parks she is not

This isn't an employment situation, but it's still in the human rights arena and related to other aspects of workplace law.

The Ottawa Citizen published this story about an OC Transpo rider being asked to move to the back of the bus.  Why?  Because she smelled like cigarette smoke, and this made the driver uncomfortable.

The commuter, Ms. Parent, says that she feels that she is being 'discriminated against' because she is a smoker, and thinks that dealing with "lots of different smells" is just part of the job of any person (such as a bus driver) who deals with the public.

That point isn't necessarily wrong.  Smelly foods, often with specific cultural associations, or certain foods which cause people to have certain scents, have interesting human rights dimensions.  Asking somebody to move to the back of the bus because she smells like curry...well, that could be troublesome.  So a driver probably has to cope with such a scent.

But cigarette smoke isn't curry.  As far as I know, there is no jurisprudence to date identifying smoking as being related to any prohibited grounds of discrimination, with the result that there is nothing legally wrong with taking adverse measures against smokers, like asking them to sit at the back of the bus.  (Morally wrong?  I would think not.  We've been marginalizing smokers for years, and the consequence has been a drastic reduction in the number of people who continue or start smoking - very positive for public health.  Indeed, twenty years ago it would have been absurd for somebody to try to avoid the 'smoker' smell, because it was so pervasive.)  If there were a connection between smoking and a prohibited ground of discrimination, then we would have to apply a Human Rights and/or Charter analysis to all sorts of no smoking policies and smoking-related laws.

However, it is not outside the realm of possibility that smoking could be interpreted as falling within the framework of a prohibited ground; alcohol addiction is well-established as a disability, and it is not inconceivable that a similar rationale could be applied to nicotine addiction.  (I would tend to distinguish nicotine addiction, however:  An alcoholic is driven to consume alcohol, which directly impairs one's psychological and cognitive abilities to a significant extent; the same is not true of nicotine.)

On the flip side, however, I'm not sure that any particular entitlement exists for the driver not to be exposed to the smell of smoke.  I'm not aware of any data establishing adverse health effects of smelling people who have smoked (which strikes me as being somewhat different from second-hand smoke), so I doubt there's a health and safety argument to be made.  It's simply a matter of preference (though, as a non-smoker, I must say that I find the preference quite understandable).  So if OC Transpo decided that it did not want smokers forced to the back of the bus, it would probably be entitled to direct the driver not to do so.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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