Sometimes students think we make it up. Tuesday we talked about employers monitoring off-duty conduct such as smoking. After many students expressed disbelief that an employer could discharge an at-will employee for smoking–“But smoking is legal!”–I related how The Scotts Company did that very thing a few years ago. Welcome to at-will employment. The next day an alert student emailed this article from CNN.com: 39 Whirlpol workers suspended over smoking lies. The workers signed statements for Whirlpool’s insurers that they do not use tobacco “and then were seen smoking or chewing tobacco on company property.” Some may be fired–for lying about smoking, not for smoking. The company employs financial incentives to discourage smoking, charging tobacco users an extra $500 for annual health insurance premiums, practice common for large companies (with more than 20,000 employees), 16 percent of which charge higher insurance premiums to tobacco users.
As reported in the New York Times and elsewhere, the Motion Picture Association of America has revised its movie ratings system to include images of smoking in assigning ratings. A film that glamorizes smoking may get a more restrictive rating, and “descriptions of tobacco use will be added to the increasingly detailed advisories that accompany each rated film.” TU (Warning: Contains graphic images of tobacco use) will go up there with Adult Nudity, Graphic Language, and–soon, I’m sure– FF (Warning: Contains graphic images of fast food consumption).
I’ve been thinking about this all day and still I cannot find the words to convey how inane this is. It’s a great idea if the object is to fetishize images of smoking, to imbue them with the allure of the forbidden. I fail to see any sense in imposing an R-rating for behavior that is, unlike violence and graphic sex, both legal and commonly witnessed in public places. (No, I did not just say that sex is illegal. I said it is not commonly seen in public places.)
The U.S. Supreme Court today rejected (see NY Times article) a $79.5 million punitive damage award against Philip Morris in a lawsuit brought by the widow of long-time smoker Jesse Williams. The 5-4 decision found there to be a taking of property without due process when punitive damages are calculated by determining the measure of harm to a single plaintiff and then multiplying that amount by the number of third parties similarly harmed. The Court declined the opportunity, sought by Philip Morris and other industry groups, to establish a cap to punitive damages. Justice Breyer wrote the opinion for the Court, joined by Chief Justice Roberts and Justices Alito, Kennedy, and Souter. Justices Stevens and Thomas filed solo dissenting opinions and Justice Ginsburg filed a dissent that was joined by Justices Scalia and Thomas. The case is Philip Morris USA v Williams.