A court is being asked to give Atlantic City gaming floor workers something they’ve long been denied: a smoke-free workplace, backed by the state constitution.
A first-of-its-kind lawsuit contends that New Jersey’s 2006 Smoke-Free Air Act, which exempts casino floors from a smoking ban that applies to almost all other workplaces and sites open to the public, violates the state constitution in two ways:
- Exposing casino workers to the proven dangers of secondhand smoke deprives them of their constitutional right to safety.
- Exempting casinos from the Smoke-Free Air Act ignores the state constitution’s prohibition of laws granting “any exclusive privilege” to a corporation, association, or individual.
The suit was brought by the New Jersey chapter of Casino Employees Against Smoking’s Effects, whose 3,000-plus members include workers from all Atlantic City casinos and United Auto Workers Region 9, which represents employees at Bally’s, Caesars, and Tropicana. Defendants are Gov. Phil Murphy and acting state Health Commissioner Kaitlin Baston, who are responsible for enforcing the smoke-free law. Spokespeople for the Health Department and Attorney General’s Office said the agencies do not comment on pending litigation. The governor’s office did not respond to a request for comment.
The Attorney General’s Office has until April 29 to file its response to the lawsuit. The chancery division of New Jersey Superior Court in Mercer County is scheduled to hear arguments May 13.
“We’re asking the court to immediately find (the exemption) unconstitutional and void it,” said Nancy Erika Smith, who represents the UAW and CEASE-NJ. A ruling could come soon after the hearing.
Filed April 5, the lawsuit is one of two new avenues health experts and other advocates of smokefree casinos have taken in their quest to close the “casino loophole” in clean-air laws. In May and June, shareholders of Bally’s, Boyd, and Caesars will be asked to vote on a proposal that would require each to study the potential cost savings of adopting a smoke-free policy for all properties and report the findings.
While 20 states already ban smoking in commercial casinos, New Jersey and 13 others exempt gaming floors from their clean-air laws, said Bronson Frick, director of advocacy for the Americans for Nonsmokers’ Rights Foundation. In addition, more than 100 tribal casinos have banned smoking.
For years, ANR and other advocates have urged state legislators and local health officials to abolish the “casino loophole” from existing laws. Operators and others typically counter with dire predictions of lost casino jobs and reduced tax collections. While a New Jersey bill that would ban smoking in Atlantic City casinos is co-sponsored by a majority of the Senate and General Assembly, it has not been put up for a vote.
The legislature is “even more cynical” than operators, Smith said, with some members accepting political contributions from tobacco interests, while the bill has been delayed.
She said the lawsuit puts the state is in “a very difficult position.” The 2006 clean-air law specifies the hazards of secondhand smoke and the need to protect the public interest. “Any exclusion of any category of people from a law has to be based on the purpose of the law. The law doesn’t say anything about protecting casino profits.”
Smith is no stranger to high-profile cases. In 2016, she filed a sexual-harassment lawsuit on behalf of former Fox News anchor Gretchen Carlson against Roger Ailes, then chairman and CEO of Fox News. Ailes was fired two weeks later and Carlson soon received a $20 million settlement and a company apology. In another case, she and her partner, Neil Mullin, won the freedom for a man wrongfully convicted of killing a police officer. Their pro-bono case lasted two decades.
“Morally, the idea that (casino) workers have been excluded from a health and safety regulation is indefensible. It’s outrageous that we have to debate this,” Smith said. She noted that all commercial casinos in neighboring New York state are smokefree, as is Parx in Philadelphia, Pennsylvania’s most profitable casino about an hour’s drive from Atlantic City.
A brief Smith filed in support of the lawsuit cited findings by the Centers for Disease Control and Prevention about the “devastating” health effects of secondhand smoke. “Defendants have endangered the safety of casino workers in violation of the New Jersey Constitution,” the brief says. “Not only is there no ‘rational’ basis for this violation of workers’ rights, there is no basis.”
Frick, from ANR, called the doom-and-gloom predictions of a casino smoking ban a “manufactured controversy,” citing the success of smoke-free floors throughout the country, from commercial operations in Massachusetts, Maryland, Ohio, and Illinois to multiple tribal facilities in California.
“Smokefree indoor air isn’t a problem when operators don’t want it to be a problem,” Frick said. “The industry, with its innovation, has already shown it can execute (smokefree operations) flawlessly when it wants to. This is simply about shifting smoking from indoor areas to outdoor areas.”
Although ANR is not directly involved in the lawsuit, Frick sees it as an indicator of urgency on the issue. “On the other side of this are real people who are sick and dying. Most people outside of casinos don’t have to endure secondhand smoke every day in their job and it can be easy to forget just how toxic this poison is. No one should have to should have to get sick or die because of simply breathing in a job.”
Frick said tobacco companies’ desire to maintain their cigarette sales is at the root of the opposition to smoke-free gaming, adding that similar contentions about the effects of making restaurants and bars smoke-free proved to be false.
“We know we’re going to win, that casinos will be smokefree,” he said. “It’s just a matter of time and hopefully, sooner rather than later.”
