# 115


II-3.6000
III-4.2000                                   December 16, 1993







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Dear Ms. XXXXXXXXX:

     This is in response to your letter to this office regarding
respiratory disabilities and the Americans with Disabilities Act
(ADA).

     The ADA authorizes the Department of Justice to provide
technical assistance to entities that are subject to the Act. 
This letter provides informal guidance to assist you in
understanding how the ADA may apply to you.  However, this
technical assistance does not constitute a determination by the
Department of Justice of your rights or responsibilities under
the ADA and does not constitute a binding determination by the
Department of Justice.

     Under the ADA, the Department of Justice declined to state
categorically that allergy or sensitivity to cigarette smoke
should be recognized as a disability because, in order to be
viewed as a disability under the ADA, an impairment must
substantially limit one or more major life activities.  An
individual's respiratory or neurological functioning may be so
severely affected by allergies or sensitivity to cigarette smoke
that he or she will be considered disabled.  Such an individual
would be entitled to all of the protections afforded by the ADA. 
In other cases, however, an individual's sensitivity to smoke or
other environmental elements will not constitute a disability. 
If, for instance, an individual's major life activity of
breathing is somewhat, but not substantially, impaired, the
individual is not disabled and is not entitled to the protections
of the statute.  Thus, the determination as to whether allergies
or sensitivity to smoke are disabilities covered by the
regulation must be made using the same case-by-case analysis that
is applied to all other physical or mental impairments.  (See the
enclosed title III regulation at page 35549.)

     Because of the case-by-case nature of the determination, the
Department of Justice ADA regulations do not mandate restrictions
on smoking.  It is important to note that section 501(b) of the
statute merely states that the prohibition of, or the imposition
of restrictions on, smoking in places of public accommodation is
not precluded by the ADA.  The statute does not mandate
imposition of any restrictions.  Furthermore, there is currently
no Federal statute that absolutely bans smoking in public
buildings.

     If you believe that you are disabled as defined under the
ADA and you can identify a particular facility in which you are
denied access because of the presence of smoke, you may either
file a private suit in Federal court or send a complaint to the
Department of Justice for investigation.  Complaints against
State or local government facilities should be sent to this
office.  Complaints against privately owned places of public
accommodation should be sent to the Public Access Section, Civil
Rights Division, U.S. Department of Justice, P.O. Box 66738,
Washington, D.C. 20035-6738.

     I hope this information has been helpful to you.

                            Sincerely,



                        Stewart B. Oneglia
                              Chief
                 Coordination and Review Section
                      Civil Rights Division

Enclosure