LIEB BLOG

How current events impact your business and real estate holdings

Friday, November 20, 2015

Bans Against Smoking May Discriminate Against the Elderly and Disabled

The Department of Housing and Urban Development (HUD) is proposing a ban on smoking in public housing units nationwide to protect residents from the dangers of secondhand smoke. Citing to the higher risks of cancer and other diseases associated with secondhand smoking, HUD Secretary Julian Castro stated that this policy would protect millions of Americans from preventable diseases every year. Additionally, it would save public housing agencies millions of dollars in repairs from fire and smoke damage caused by lit tobacco products.

The “castle doctrine” is a long-standing legal doctrine allowing individuals certain protections in his or own home. However, if HUD’s proposed ban is enacted, public housing will no longer be a castle for those residents who want to smoke in the privacy of their own homes. By conducting public health studies and hearing public comments, HUD is within its rights to create such a ban.
Many public housing agencies across the country have already implemented anti-smoking policies due to the HUD’s vigorous campaign to adopt such policies since 2009. However, this proposed ban would require all public housing agencies to conform to a non-smoking policy in not only the residences but also the indoor common areas, administrative offices, and within 25 feet outdoors of these units.

It is unclear how the rule will be enforced and what kinds of accommodations will be offered to smokers who already reside in these public housing units. Though the act of smoking lit tobacco products does not fall under a protected class, this policy may have a disparate impact on elderly and disabled smokers who cannot easily leave their homes every time they want a cigarette. If the elderly and disabled are unable to conform to the rule, they be forced out of their residences without any other place to go.


Secondhand smoke is a public health issue, but HUD must tread lightly to offer reasonable accommodations to those who already reside in public housing and who may not be able to abide by the new rule.  Otherwise, HUD may face a flood of discrimination lawsuits.