Shimp v. New Jersey Bell Telephone Company

In ordering the injunction against New Jersey Bell Telephone, the court acknowledged that the rights of nonsmokers in the workplace must be balanced against the rights of smokers, but stated firmly that "The right of an individual to risk his or her own health does not include the right to jeopardize the health of those who must remain around him or her in order to properly perform the duties of their jobs." Justice Gruccio noted that employees who wished to smoke during their own time "should have a reasonably accessible area in which to smoke." He reasoned that limiting smoking to non-work areas would impose no unreasonable hardship upon the employer.

Shimp established the toxic effect of ETS on nonsmokers and ruled that the substance should be included among those that an employer should reasonably foresee as a preventable work hazard. This set the stage for workers to bring claims against employers. Responding to employee complaints, and anticipating possible liability, many private employers began to regulate on-the-job smoking. But smokers also asserted their rights, making statutory regulation of workplace smoking a passionately contested issue. As of 1993, according to a Valparaiso University Law Review article by Melissa A. Vallone, only 14 states had enacted legislation against ETS, and none of these banned on-the-job smoking entirely. In Your Rights in the Workplace, Barbara Kate Repa noted that by 1996 a majority of states had imposed some regulations protecting workers from ETS, but that no federal law directly prohibited workplace smoking. A small handful of cities prohibit workplace smoking outright. On the other hand, about half of the states have laws making it illegal to discriminate against employees who smoke during their free time. "So the ongoing legal battle in most workplaces," Repa concluded, "boils down to a question of what is more important: one person's right to preserve health by avoiding co-workers' tobacco smoke, or another's unfettered right to smoke."

The federal government's first major action against ETS came in 1988, when it banned smoking aboard domestic airline flights of less than two hours' duration. The Environmental Protection Agency (EPA) recommended "that every company have a smoking policy that effectively protects nonsmokers from involuntary exposure to tobacco smoke" but as of the late 1990s, this had not been made into law. New OSHA regulations proposed in 1994 would require all non-industrial businesses to devise and implement plans to protect workers from indoor air pollution, including tobacco smoke. But strong opposition erupted when those proposals were made public. In 1997, President Clinton issued an executive order banning smoking in federal workplaces, but the issue of smoking in private workplaces had not yet been resolved by federal law.