Anti-Discrimination Laws Do Not Protect Smoking

Aside from finding an unflushed toilet, getting assigned a smoking room in a hotel when you are a non-smoker is the worst possible surprise.  Love smoking or hate it, non-smokers are increasingly serious about not renting apartments that smell like someone else’s butts. But, is there anything you can do to protect your rental properties as a landlord?

Although the nicotine in tobacco products is highly addictive, anti-discrimination laws do not protect smoking. Anti-discrimination laws, such as the Americans with Disabilities Act (ADA), the Federal Fair Housing Act of 1988, and the state law equivalents are designed to prevent discrimination based on race, disability, and certain other characteristics. The only conceivable way that any of these laws would stop landlords from prohibiting smoking was if someone were to argue that smoking is a protected disability. However, it has already been established that smoking is not a protected disability. The ADA states that “nothing in this [law] should be construed to preclude the prohibition of, or the imposition of restrictions on, smoking…”  Additionally, smoking does not qualify as a protected disability because it is treatable through cessation counseling and pharmacological aids, such as the nicotine patch. Thus, anti-discrimination laws do not prohibit landlords from implementing no-smoking rules.

 (Information provided by the Massachusetts Smoke Free Housing Project, an initiative of the Public Health Advocacy Institute and funded by the Massachusetts Department of Public Health. For more information or questions on how to implement a no smoking rule, contact .)