Rights for Disabled Broadened by Justices : Health: State Supreme Court rejects challenge to ruling requiring smoke-free environment for workers with respiratory ailments.

SAN FRANCISCO —  The state Supreme Court, extending new protection to disabled workers, on Thursday let stand an appellate ruling requiring a smoke-free workplace for employees with respiratory ailments aggravated by tobacco smoke.

The justices refused to hear a challenge to a far-reaching appellate court ruling that workers whose functions are impaired by tobacco smoke are “physically handicapped” and thus protected under the state Fair Employment and Housing Act.

The appeal court upheld contentions by the state Fair Employment and Housing Commission that reasonable but unsuccessful efforts by employers to accommodate ailing workers were not sufficient under the law. Under the decision, employers must take effective steps to protect workers--such as nonsmoking areas or an outright smoking ban--unless they can meet the difficult legal burden of proving “undue hardship.”

The ruling, the first of its kind, is likely to have broad impact in workplaces where smoking is permitted. More than 24 million Americans suffer from chronic respiratory illness, according to the American Lung Assn.

Moreover, attorneys noted, the decision also will give added protection to employees with other ailments that are considered physical handicaps when they impair a worker’s functions--such as high blood pressure, diabetes and back disorders.

“This will apply in every case where there is a physical handicap,” said state Deputy Atty. Gen. Kathleen W. Mikkelson. “When a worker validly claims a handicap, the employer will have to find a successful way to accommodate the worker.”

Chief Deputy Fresno County Counsel J. Wesley Merritt, representing the employer in the case, expressed disappointment that the high court had rejected the opportunity to limit the coverage of the act. “The people who wrote the law were thinking of people in wheelchairs,” said Merritt. “The law now reaches practically any physical condition of any kind.”

The case arose after Danyse Brooks and Camille Capo began work for the Fresno County Social Service Department in 1981. A year later, they filed discrimination charges against the county with the Fair Employment and Housing Department, saying they had been forced to work in a poorly ventilated, smoke-filled room, despite the county’s knowledge Brooks had asthma and Capo had asthma and sarcoidosis, another respiratory ailment.

At one point, 12 people were squeezed into a room designed for eight, and six people smoked, the two women said. The smoke, they said, caused them severe pain and impaired their breathing. When they objected, supervisors told them that “smokers had rights, too,” and to “go with the flow,” the women said.

The state Fair Housing and Employment Commission concluded in 1987 that the county had violated the act’s prohibition of discrimination against the handicapped. The commission ordered the county to reimburse the women for medical and other expenses and awarded them a total of $70,000 in compensatory damages for pain and suffering.

The county appealed the ruling, contending that hypersensitivity to tobacco smoke should not be considered a physical handicap.

The county said it had also made numerous and reasonable attempts to accommodate the workers’ needs--such as making smokers use desktop air-filtration machines, keeping windows open and eventually moving Brooks and Capo to an enclosed private office. To have moved them to a separate, smoke-free facility would have caused an undue hardship, the county said.

A Fresno Superior Court judge agreed with the county and overturned the commission ruling. But a state Court of Appeal in Fresno ruled in January for the two employees, finding they were protected because their ability to function had been impaired.

“To most people tobacco smoke is merely irritating, distasteful or discomforting,” Appellate Justice William A. Stone wrote in an opinion joined by Justices Steven M. Vartabedian and James F. Thaxter. “Someone who suffers from a respiratory disorder and whose ability to breathe is severely limited by tobacco smoke is . . . physically handicapped within the meaning of the Act.”

The appeal court also turned down the county’s contention that its attempts to aid the women constituted a “reasonable accommodation” under the law. None of these measures worked, the court pointed out. Even placing the women in a separate office failed because it was on the same ventilation system as the smoke-filled room. The court noted that the county could have barred smoking in the room, but declined to do so. (The year after the women brought charges, the county adopted an ordinance barring smoking in county facilities).

The court set aside the award for compensatory damages, citing a recent ruling by the state high court that the FEHC lacked authority to make such awards.

The state Supreme Court declined to hear the county’s appeal in a brief order. Only Justice Stanley Mosk voted to hear the case, three votes shy of the required number.

In other action, the justices unanimously upheld the death sentence of Wilbur Jennings, convicted in 1986 for the murders of four women--three of them prostitutes--in the Fresno area. Because of the locations where the bodies were found, the murders became known locally as the “ditchbank killings.”