The nanny corporation

University of Chicago Law Review

Volumn 76, Issue 4, 2009, Pages 1517-1611

  Todd Henderson, M Todd ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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EID: 77950526646     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (442)

1. Ida M.Tarbell, New Ideas in Business 146 (Macmillan 1917) (describing the nannyism of George Pullman in his eponymous company town, Pullman, Illinois).
2. See Marisa Schultz, Amy Lee, and Eric Lacy, Workers Fume, as Firms Ban Smoking at Home, Detroit News A1 (Jan 27, 2005).
3. Daniel Schorn, Whose. Life Is It Anyway?: Are. Employers' Lifestyle Policies Discriminatory?, 60 Minutes (July 16,2006), online at http://www.cbsnews.com/stories/2005/10/28/60minutes/main990617.shtml (visited Oct 3, 2009).
4. Sacha Pfeiffer, Off-the-Job Smoker Sues over Firing; Says Company Policy is a Slippery Slope, Boston Globe Al (Nov 30, 2006) (noting that the World Health Organization, Union Pacific, and Alaska Airlines have antismoking policies).
5. See id.
6. Harry Wessel, Want a Job? You May Have to Quit Smoking, Pittsburgh Post-Gazette H1 (Jan 6, 2008).
7. See generally, for example, Christopher Valleau, Comment, If You're Smoking You're Fired: How Tobacco Could Be Dangerous to More than Just Your Health, 10 DePaul J Health Care L 457 (2007)
8. (arguing that workers should not enjoy protection from employment discrimination based upon smoking habits); Ann L. Rives, Note, You're Not the. Boss of Me: A Call for Federal Lifestyle Discrimination Legislation, 74 Geo Wash L Rev 553 (2006);
9. Karen Chadwick, Is Leisure-time Smoking a Valid Employment Consideration?, 70 Albany L Rev 117 (2006) (discussing employment discrimination against workers who smoke on their personal time);
10. Terry Morehead Dworkin, It's My LifeLeave Me Alone: Off-the-job Employee Associational Privacy Rights, 35 Am Bus L J 47 (1997) (discussing theories about how workers can seek relief from employment discrimination based upon their private relationships);
11. Lewis L. Maltby and Bernard J. Dushman, Whose Life Is It AnywayEmployer Control of Off-duty Behavior, 13 SLU Pub L Rev 645 (1994) (expressing concern about the potential reach of employer regulation of worker conduct, and arguing for legislation to protect workers from discrimination based on private conduct);
12. Marvin F. Hill, Jr, and James A. Wright, Employee Lifestyle and Off-duty Conduct Regulation (BNA 1993);
13. Marvin Hill, Jr, and Emily Delacenserie, Procrustean Beds and Draconian Choices: Lifestyle Regulations and Officious IntermeddlersBosses, Workers, Courts and Labor Arbitrators, 57 Mo L Rev 51 (1992) (reviewing case law on employment discrimination based upon private conduct, and arguing for a legal requirement that an employer prove that the regulated conduct affects the employer's business).
14. See Jeremy W Peters, Company's Smoking Ban Means Off-hours, Too, NY Times C5 (Feb 8, 2005) (quoting Lewis Maltby, president of the National Workrights Institute: "Once you cross the line and allow employers to control any type of behavior that's not related to job performance, there's no limit to the harm that can and will be done.").
15. See, for example, Hill and Delacenserie, 57 Mo L Rev at 169 (cited in note 7) ("Hard evidence that an employee's lifestyle... affects job performance should be the rule, not the exception, before an employee's discharge is effected.").
16. Michelle Conlin, Hagedorn: "We Care About Our People," Bus Wk Online (Feb 26, 2007), online at http://www.businessweek.com/magazine/content/ 07-09/b4023005.htm (visited Oct 3,2009) (interviewing Jim Hagedorn).
17. John Stuart Mill, On Liberty 68-69 (Penguin 1974) (arguing that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others");
18. Milton Friedman and Rose Friedman, Free to Choose: A Personal Statement 39 (Harvest 1990) ("The economic controls that have proliferated in the United States in recent decades have not only restricted our freedom to use our economic resources, they have also affected our freedom of speech, of press, and of religion.").
19. Profiles in Marijuana Reform: Milton Friedman, Marijuana Policy Project (July 31, 2008), online at http://tv.mpp.org/shorts/profiles-in-marijuana- reform-milton-friedman-part-1 (visited Oct 3,2009) (offering a libertarian critique of drug laws).
20. See Part V.
21. See Robert S. Pindyck and Daniel L. Rubinfeld, Microeconomics 621 (Prentice Hall 5th ed 2001) ("When externalities are present, the price of a good may not reflect its social value. As a result, firms may produce too much or too little, so the market outcome is inefficient.").
22. Gerald Dworkin, Paternalism, in Edward N. Zalta, ed, The Stanford Encyclopedia of Philosophy (2006), online at http://plato.stanford.edu/entries/ paternalism (visited Oct 2, 2009).
23. Thanks to Eric Posner for this example.
24. See generally James F. Childress, Paternalism in Heatlh Care and Health Policy, in Richard E. Ashcroft, et al, eds, Principles of Health Care. Ethics 223, 223 (Wiley 2007).
25. See generally R. H. Coase, The Problem of Social Cost, 3 J L & Econ 1 (1960).
26. See generally Ted O'Donoghue and Matthew Rabin, Studying Optimal Paternalism, Illustrated by a Model of Sin Taxes, 93 Am Econ Assoc Papers & Proceedings 186 (2003) (arguing for regulation of eating based on negative internalities).
27. Jonathan Gruber and Botond Köszegi, Is Addiction "Rational"? Theory and Evidence, 116 Q J Econ 1261 (2001) (arguing that taxes on cigarettes "should depend not only on the externalities that smokers impose on others but also on the 'internalities' imposed by smokers on themselves").
28. See also Richard H. Thaler and Cass R. Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness 4 (Yale 2008) (suggesting the concept of a "nudge," whereby planners of systems arrange consumer options in such a way as to encourage a particular type of behavior based on decision making errors and internality problems).
29. See generally Cass R. Sunstein, ed, Behavioral Law and Economics (Cambridge 2000).
30. See Gary S. Becker and Kevin M. Murphy, A Theory of Rational Addiction, 96 J Pol Econ 675, 676-680 (1988) (developing a model of intraself bargaining showing how individual smokers take into account future costs of smoking when making current smoking decisions).
31. Mill, On Liberty at 68-69 (cited in note 11) (arguing that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others").
32. Cass R. Sunstein and Richard H. Thaler, Libertarian Paternalism Is Not an Oxymoron, 70 U Chi L Rev 1159,1195-1199 (2003) (arguing for paternalistic default rules that preserve choice but offer optimal strategies).
33. David Harsanyi, Nanny State: How Food Fascists, Teetotaling Do-gooders, Priggish Moralists, and other Boneheaded Bureaucrats Are Turning America into a Nation of Children 13 (Broadway 2007) (arguing that "nanny laws" are the result of government and a cadre of "busybodies" pressuring the public "into obedience").
34. There are numerous activities, behaviors, or characteristics that are protected by common and statutory law, and that are not within the scope of nannyism as defined in this Article (for example, rights of association, religion, race, sexuality, and speech).
35. There are generally two choices for the payment of the social costs of activities. Most obviously, we could hold individuals or individual entities responsible for the costs they impose on others or society. This approach has been widely advocated in various literature as the most effective way of creating the optimal social incentives. If individuals bear the full costs of their actions (that is, internalize all the costs they impose on others), then we would expect the individuals to police their own conduct in ways that strike the efficient balance between utility gain and loss (or benefit and cost). Taxes are a common mechanism for doing this. But there may be many cases in which individuals cannot pay, are not sufficiently sensitive to costs, are viewed as victims, or are not the least-cost avoiders. Taxes may be regressive, individuals may be judgment proof, or other entities may be able to provide particular monitoring functions at lower cost across multiple individuals because of economies of scale and scope. Individuals may also suffer from systematic decisionmaking biases, which would blunt the perceived benefits of cost internalization.
36. See Part II.A.
37. See Linda Carlson, Company Towns of the. Pacific Northwest 194 (Washington 2003) (noting the Atomic Energy Commission's control of the local press in Richland, Washington).
38. See, for example, Obesity Boom Will Cost Tax Payers, BBC News Online (Oct 7, 2008), online at http://news.bbc.co.uk/l/hi/health/7656214.stm (visited Oct 3, 2009) (showing costs to taxpayers and predicting future fat tax).
39. Government Unit 'Urges Fat Tax,' BBC News Online (Feb 19, 2004), online at http://news.bbc.co.uk/l/hi/health/3502053.stm (visited Oct 3, 2009) (noting that the government is considering a fat tax).
40. Kate Schneider, Ryanair Considers Ways to Impose a 'Fat Tax,' news.com.au (Apr 23, 2009), online at http://www.news.com.au/travel/story/025373653- 50090000,00.html(visited Oct 2, 2009) (discussing an airline's plan to impose a fat tax).
41. Harsanyi, Nanny State at 10-11 (cited in note 24).
42. See id at 37-40 (recounting the history of the "Twinkie tax" concept's development).
43. See also Suzanne Leigh, 'Twinkie Tax' Worth a Try in Fight against Obesity, USA Today A13 (Dec 1, 2004) (advocating the tax as a way to curb obesity by changing consumer and food producer incentives).
44. For a discussion, see note 154 and accompanying text.
45. See Harsanyi, Nanny State at 125 (cited in note 24) (noting the ban in Belmont, which outlaws smoking everywhere in the town except in detached, single-family homes).
46. See Richard A. Epstein, The "Necessary" History of Property and Liberty, 6 Chapman L Rev 1,11 (2003) ("In modern terms, the bottom line is that the presumption of liberty can be overcome only in those cases of a socially destructive 'prisoner's dilemma' game or a genuine externality.").
47. See, for example, Jack S. Blocker, David M. Fahey, and Ian R. Tyrrell, eds, Alcohol and Temperance in Modern History: An International Encyclopedia 402 (ABC-CLIO 2003) (noting the Massachusetts Society for the Suppression of Intemperance's view that alcohol use was "part of a pervasive deterioration in the virtue of [the] citizenry").
48. See Bruce Yandle, Bootleggers and Baptists: The Education of a Regulatory Economist, 7 Regulation 12,13 (May/June 1983).
49. Clark Nardinelli, Child Labor and the Factory Arts, 40 J Econ Hist 739,740-741 (1980).
50. For additional discussion, see Part U.C. See also note 98 and accompanying text.
51. A leading historian of company towns defines the nanny corporation in this context as "one in which the paternalism of the owner extended beyond the bare-bones architectural requirements of factories or mines." John S. Garner, Introduction, in John S. Garner, ed, The Company Town: Architecture and Society in the Early Industrial Age 3,4 (Oxford 1992) (labeling such places as "model company town[s]," in which there were numerous public amenities and programs to aid the residents).
52. See id at 3
53. Carlson, Company Towns of the Pacific Northwest at 191-198 (cited in note 28) (discussing life in a company town in the post-World War II period).
54. "Mining companies establishing themselves in isolated areas often found it necessary to provide housing for workers in order to get them to come." James B. Allen, The Company Town in the American West 7 (Oklahoma 1966) (explaining the economic rationale for the company town).
55. See Garner, Introduction at 7 (cited in note 39) (noting the presence of an arcade, market buildings, park, and gardens).
56. See Allen, The Company Town at 6-7 (cited in note 41) (explaining that despite the remote location of the towns, they often developed into cohesive communities with shops, social groups, and religious organizations).
57. Margaret Crawford, Earle S Draper and the Company Town in the American South, in Garner, The Company Town 139,144 (cited in note 39) (noting that mills provided housing and public amenities, creating the conditions for company control of the towns).
58. Owners often couched their nannyism in benevolent and moral terms - "We keenly and genuinely feel our responsibility toward that which has been entrusted to us. We believe in the dignity of man and the worth of the individual." Allen, The Company Town at 123 (cited in note 41) (quoting James Bryson, manager of the company that ran Valsetz, Oregon). But these are laid bare by the economic realities of the situation.
59. Crawford, Earle S. Draper at 146 (cited in note 44) (noting that the companies used their control, for example, to regulate residents' sexual activities).
60. Id at 144.
61. To be sure, some owner-nannies took a "genuine interest in the welfare" of their workers, meaning the owners derived some personal utility from trying to impose their values on others.
62. See Garner, Introduction at 4 (cited in note 39).
63. Id at 8.
64. Allen, The Company Town at 122-123 (cited in note 41) (discussing the companies' view that living in the town was a privilege, and that in return, the companies could expect, for example, that town property would not be used for unwelcome union organizing activity).
65. Carlson, Company Towns of the Pacific Northwest at 189 (cited in note 28).
66. Id at 193.
67. Id at 210 ("In Gilchrist, Oregon, the lumberman who subsidized his employees' rent was the same man who personally chastised workers who didn't maintain their yards to his satisfaction.").
68. Crawford, Earle S. Draper at 146 (cited in note 44).
69. See, for example, Carlson, Company Towns of the Pacific Northwest at 193 (cited in note 28).
70. See Garner, Introduction at 4 (cited in note 39) (noting the amenities commonly found in a "model company town").
71. Allen, The Company Town at 124 (cited in note 41).
72. See id.
73. Garner, Introduction at 4 (cited in note 39). The construction of a new mining town at Tyrone, New Mexico by the Phelps Dodge Corporation in 1914 cost about $1 million or about $162 million in 2007 dollars, not to mention the ongoing costs of upkeep.
74. See Allen, The. Company Town at 115-116 (cited in note 41).
75. Crawford, Earle S. Draper at 147 (cited in note 44) (illustrating the spectrum of company town owners).
76. Garner, Introduction at 5 (cited in note 39) (noting that many of the company towns' aspects inspired the planned communities that came later, such as Garden City).
77. When the government operated company towns, it acted in the same way as private firms. Government-run company towns, like Coulee Dam, Washington (near Grand Coulee Dam), had strict controls on the type of businesses in town and the types of behavior that were acceptable by residents.
78. See Carlson, Company Towns of the Pacific Northwest at 192-93 (cited in note 28). Historical accounts conclude that "[t]he federal government also was well known for its paternalism [in company towns it managed].".
79. Id at 194.
80. Garner, Introduction at 4 (cited in note 39). Some historical accounts criticize company town nannyism as being a "haphazard and piecemeal endeavor erratically applied according to the inclinations of individual owners and managers.".
81. Crawford, Earle S. Draper at 146 (cited in note 44) (noting that a variety of different practices existed in different towns). One example of a "benevolent despot" was Ellison Smyth, who ran Pelzer, South Carolina. Smith, who hated dogs, provided housing free of charge and countless amenities for his workers, but "indulged his own prejudices by restricting after-dark activities and banning dogs from the village."
82. Id at 146-147 (quoting Smyth as saying that "dogs are in ninety-nine cases out of a hundred worthless and troublesome").
83. See, for example, Garner, Introduction at 6-7 (cited in note 39) (noting the example of the 1894 strike in Pullman, Illinois).
84. Id at 7.
85. For a general theoretical discussion of the value of the ability to remove one's support from an organization ("exit") or to register protests regarding one's grievances to an organization ("voice") as a way of addressing an organization's shortcomings.
86. see Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States 3-5 (Harvard 1970) (explaining how dissatisfied stakeholders can use the options of "exit" and "voice" and presenting questions regarding the "interplay" of these two options).
87. Garner, Introduction at 6 (cited in note 39) (noting the mobility of certain workers in the mid-nineteenth century). Lack of labor mobility for unskilled workers may have made their options fewer and therefore their potential for abuse at the hands of corporate nannies more likely. But this assumes that company town managers could tailor degrees of nannyism proportional to workers' labor mobility. Although this may have been true, there is no evidence of it in the leading historical accounts. It is also less likely for modern corporate nannies, which do not use tailored nannyism and generally compete in very liquid labor markets.
88. Id (noting workers' lack of property or possessions, and hence their geographical mobility).
89. See id (arguing that, because of the portability of their labor skills and few ties to property, it is an "exaggeration" to characterize company town workers as a "proletariat").
90. Crawford, Earle S. Draper at 155 (cited in note 44).
91. See Part H.A.
92. For example, the Ford Motor Company provided free legal services to protect employees from dishonest real estate agents.
93. See Ford R. Bryan, Friends, Families & Forays: Scenes from the Life and Times of Henry Ford 279 (Wayne State 2002) (describing the many procedures Ford introduced to improve family life by "encouraging family stability, home ownership, and the budgeting of income"). The Company also established the "Employees' Savings and Loan Association" as a bank the employees could use, in an effort to encourage thrift and saving.
94. Steven Watts, The People's Tycoon: Henry Ford and the American Century 204-205 (Knopf 2005) (describing the work and responsibilities of Ford's sociological investigators). Furthermore, the Company had physicians available around the clock to tend to sick employees.
95. Id at 205.
96. Watts, The People's Tycoon at 201 (cited in note 72).
97. Ford was inspired to start the Sociological Department when he visited his friend Percival Perry, who manufactured and sold Ford cars in England and had started a similar program that included an increase in wages to combat worker dissatisfaction.
98. Bryan, Friends, Families & Forays at 276-281 (cited in note 72) (chronicling the transition of the company from one with no labor policy to one that created the Sociological Department).
99. Stephen Meyer, III, The Five Dollar Day: Labor Management and Social Control in the Ford Motor Company, 1908-1921 124-125 (SUNY 1981) (describing a cursory interview with a cohabitant to determine a worker's fitness for the enhanced pay program).
100. In Ford's words, an eligible worker "must show himself sober, saving, steady, industrious and must satisfy the superintendent and staff that his money will not be wasted in riotous living."
101. Ford R. Bryan, Henry's Lieutenants 207 (Wayne State 1993.
102. K.C. Grain, Fit for $5 a Day? The Company Will Decide, Automotive News 44 (June 15,2003).
103. Rudolph Alvarado and Sonya Alvarado, Drawing Conclusions on Henry Ford 42-43 (Michigan 2001) (describing Ford's historic pay increase and the ways in which it affected the workings of the Company and the lives of the employees);
104. Bryan, Friends, Families & Forays at 278 (cited in note 72).
105. Watts, The People's Tycoon at 203 (cited in note 72).
106. Id at 204.
107. Id at 205.
108. Id at 212.
109. Watts, The People's Tycoon at 222-223
110. Id at 219-220 (describing the public debate about the propriety of corporate intrusion into employees' lives).
111. Id (quoting Ford's claim that his social programs reflected "a heartfelt, personal interest in the welfare of his employees").
112. Id at 220.
113. Bryan, Friends, Families & Forays at 281 (cited in note 72).
114. Henry Ford, My Life and Work 130 (Garden City 1922).
115. See id.
116. Firms are also increasingly deploying nanny-like programs to encourage a variety of other "good" behaviors. For example, Pacificare gives employees bonuses (in the form of prizes, like ¡for taking classes on managing personal finances, learning about art, teaching their children not to watch television or play video games, and so on.
117. See Anana Eunjung Cha, Firms Make It Their Business to Push Health: Incentives, Monitoring Aimed at Cutting Costs, Wash Post Al (Feb 20,2005) (describing the measures taken by companies to defray health insurance premiums through incentives to live healthier). These programs are unobjectionable, since the stakes are low, but they amount to penalizing employees who do not do these things.
118. Kaiser Family Foundation and Health Research and Educational Trust, Employer Health Benefits: 2007 Annual Survey, 3 (Kaiser Family Foundation 2007), online at http://www.kff.org/insurance/7672/upload/76723.pdf (visited Oct 3, 2009) (collecting information on company-funded health insurance).
119. Centers for Medicare & Medicaid Services, Office of the Actuary, National Health Expenditures table 5 (2006) (calculated as Private Business Expenditures less "other private" and "other public").
120. Department of Commerce, Bureau of Economic Analysis, National Income and Product Accounts Table: 1960-2006 tables 2.2A & 7.8 (2008), online at http://www.bea.gov/national/nipaweb/SelectTable.asp (visited Oct 3, 2009).
121. Ariana Eunjung Cha, Firms Make It Their Business to Push Health: Incentives, Monitoring Aimed at Cutting Costs, Wash Post Al (Feb 20, 2005).
122. See Kaiser Family Foundation, Employer Health Insurance Costs and Worker Compensation figure 3 (Mar 2008), online at http://www.kff.org/insurance/ snapshot/chcm030808oth.cfm(visited Oct 3,2009) (illustrating healthcare costs as a percentage of payroll from 1999 to 2005).
123. See id at figure 6.
124. International Social Security Association, Social Security Programs throughout the World (2006), reprinted in Sarah Axeen and Elizabeth Carpenter, The Employer Health Care Burden, New America Foundation (May 2008), online at http://www.newamerica.net/files/Employer%20Burden%20-%20issue%20brief.pdf (visited Oct 3, 2009) (contrasting the percentage of employer payroll spent on healthcare benefits by US firms (13 percent) when compared to firms in other countries, including Japan (3.7 percent), Germany (6.7 percent), Canada (4.5 percent), and the UK (1.9 percent)).
125. Both smoking and obesity are correlated with an increased risk of diabetes, hypertension, heart disease, stroke, and other chronic and debilitating conditions. See generally Roland Sturm, The Effects of Obesity, Smoking, and Drinking on Medical Problems and Costs, 21 Health Affairs 245 (March/April 2002) (observing that obesity and smoking are associated with 36 and 21 percent increases in healthcare costs, respectively).
126. A.M. Wolf and G.A. Colditz, The Cost of Obesity: The US Perspective, 5 Pharmacoeconomics 34,36 (1994) (compiling the direct and indirect costs of obesity in the 1990s).
127. Ali H. Mokdad, et al, The Spread of the Obesity Epidemic in the United States, 1991-1998, 282 JAMA 1519,1520 (1999) (quantifying and chronicling the increase in obesity in America);
128. Ali H. Mokdad, et al, Prevalence of Obesity, Diabetes, and Obesity-Related Health Risk Factors, 2001, 289 JAMA 76,77 (2003) (same).
129. Eric A. Finkelstein, Ian C. Fiebelkorn, and Guijing Wang, National Medical Spending Attributable, to Overweight and Obesity: How Much, and Who's Paying?, Health Affairs Web Exclusive W3-219, W3-222 exhibit 2 (2003), online at http://content.healthaffairs.org/cgi/reprint/hlthaff.w3.219vl.pdf (visited Oct 3, 2009) (calculating the spending increases stemming from being obese and determining that the spending increase is $732 per year).
130. See also Associated Press, Company to Charge 'Unhealthy' Workers More for Insurance (July 1, 2007), online at http://www.foxnews.com/story/0,2933,287616, 00.html (visited Oct 3, 2009) (citing a Thompson Health Care study estimating the extra healthcare costs of moderately obese individuals as about $700 per individual per year).
131. See Associated Press, Company to Charge 'Unhealthy' Workers More for Insurance (cited in note 101).
132. Finkelstein, Fiebelkorn, and Wang, National Medical Spending Attributable to Overweight and Obesity, Health Affairs Web Exclusive at W3-223 ex 4 (cited in note 101).
133. Centers for Disease Control and Prevention, Press Release: Smoking Costs Nation $150 Billion Each Year in Health Costs, Lost Productivity (Apr 12, 2002), online at http://www.cdc.gov/media/pressrel/r020412.htm (visited Oct 3, 2009) (outlining the health and economic effects of smoking).
134. Walmart has about 2 million employees. Fortune Global 500, The List table 1 (July 21 2008) (ranking the fifty largest employers worldwide). About 20 percent of US adults are smokers.
135. See Centers for Disease Control and Prevention, Cigarette Smoking among AdultsUnited States, 2004 (Nov 11, 2005), online at http://www.cdc.gov/mmwr/ preview/mmwrhtml/mm5444a2.htm (visited Oct 3,2009).
136. This is based on a labor force of 150 million.
137. See Central Intelligence Agency, The World Factbook: United States, online at https://www.cia.gov/library/publications/the-world-factbook/geos/us. html (visited Oct 3,2009).
138. It is also possible that firms could "charge" employees for things like obesity indirectly through lower wages for the lower productivity that accompanies the condition. There is some evidence for this. The literature on obesity-based wage differences finds that heavier individuals earn less than lighter ones, and that these differences are based on lower productivity levels.
139. See generally Charles A. Register and Donald R. Williams, Wage Effects of Obesity among Young Workers, 71 Soc Sci Q 130 (1990) (analyzing the possibility of a wage penalty for obesity);
140. Jose A. Pagan and Alberto Dávila, Obesity, Occupational Attainment, and Earnings, 78 Soc Sci Q 756 (1997);
141. John Cawley, An Instrumental Variables Approach to Measuring the Effect of Body Weight on Employment Disability, 35 Health Services Res 1159 (2000). This method of cost internalization is likely insufficient. It may be illegal for firms to lower wages for the health-related aspects of certain conditions or behaviors. It also applies only to behaviors or conditions that manifest themselves in productivity losses. Finally, it is not transparent to the worker, so there are no obvious incentives for employees to lose weight or change the behavior.
142. Larry Hand, Carrots & Sticks: Employers Prod Workers to Adopt Behaviors that Improve Health, Harv Pub Health Rev 4, 5 (Winter 2009), online at http://www.hsph.harvard.edu/news/hphr/files/winter09-incentivesWEB.pdf (visited Oct 3, 2009) (noting that 19 percent of all large employers offered wellness programs in 2006).
143. See IBM Press Room, IBM's New Children's Health Rebate for Employees Helps Families Attain a Healthy Lifestyle: Extends Company's Wellness Incentive Programs, Enabling Employees to Earn $150 Cash Incentive (Oct 24, 2007), online at http://www-03.ibm.com/press/us/en/pressrelease/22496.wss (visited Oct 3,2009).
144. WBGH.org http://WBGH.org, Best Employers Gold Winners 1 (June 17, 2005), online at http://www.wbgh.org/healthtopics/best-employer-docs/best-employers- gold-winners-617.pdf (visited Oct 3, 2009).
145. Dell Press Release, Dell Wellness Participants See Health Improvements, 10 Percent Decrease in Expenses (Nov 15, 2006), online at http://www.dell.com/ content/topics/global.aspx/corp/pressoffice/en/2006/2006-11-15-aus-000? c-us&l-en&s=corp (visited Oct 3,2009).
146. Cha, Firms Make It Their Business to Push Health, Wash Post at Al (cited in note 90).
147. See Michelle Conlin, Get Healthy - Or Else: Inside One Company's All-out Attack on Medical Costs, Bus Wk 58 (Feb 26, 2007) (describing the procedures a company used to improve healthiness in the employees).
148. Id. See also Conlin, Hagedorn: "We Care About Our People," Bus Wk Online (cited in note 10) ("I told my people that you cannot expect us, the company, to just continue to pay these kinds of increases and not say to our people you are partly responsible.").
149. See Conlin, Get Healthy- Or Else, Bus Wk at 58 (cited in note 113).
150. Peters, Company's Smoking Ban Means Off-hours, Too, NY Times at C5 (cited in note 8) (reporting on a new company policy that subjected employees to nicotine tests and describing the many critics who believe this is an unjust invasion of privacy).
151. Id.
152. Cha, Firms Make It Their Business to Push Health, Wash Post at Al (cited in note 90).
153. Hilary Smith, The High Cost of Smoking, MSN Money (Sept 3, 2008), online at http://articles.moneycentral.msn.com/Insurance/InsureYourHealth/ HighCostOfSmoking.aspx (visited Oct 3,2009).
154. See note 104 and accompanying text.
155. Nicotine is a stimulant, so it has been shown to increase cognitive function and stamina. Kate Devlin, Nicotine Offers New Hope for Alzheimer's Treatment, Daily Telegraph (London) 11 (July 14,2008). It also increases metabolism, so smoking is common among ballet dancers, since it allows them to remain very thin, a requirement of employment.
156. See Suzanne Martin, Stop Blowing Smoke - Here's How, Dance Magazine 31 (Aug 2004).
157. Social Security Act, 42 USC §1395 et seq.
158. See Associated Press, Company to Charge 'Unhealthy' Workers More for Insurance (cited in note 101) (describing the policy as being "on the bleeding edge").
159. Jena McGregor, Being Unhealthy Could Cost You - Money, Bus Wk Online (Aug 2, 2007), online at http://www.businessweek.com/bwdaily/dnflash/content/ aug2007/db2007081-804238.htm (visited Oct 3, 2009).
160. See id.
161. See Conlin, Get Healthy- Or Ehe, Bus Wk at 58 (cited in note 113).
162. See Steven G. Aldana, Financial Impact of Health Promotion Programs: A Comprehensive Review of the Literature, 15 Am J Health Promotion 296, 316 (2001).
163. See, for example, Harsanyi, Nanny State at 124-26 (cited in note 24) (describing the rationale for nanny laws and the vehement pushback from some interest groups);
164. Rives, 74 Geo Wash L Rev at 563-67 (cited in note 7) (arguing for the adoption of an "unambiguous federal statute" against employer "lifestyle discrimination");
165. Chadwick, 70 Albany L Rev at 138-141 (cited in note 7) (favoring state laws "which protect[] smoker privacy").
166. It is in light of the tendency of some nannies to get carried away, the difficulty in making optimal nanny regulations, and the imperfect nature of monitoring nanny agents, that corporate nannies are superior to their state analogs.
167. The idea that market discipline constrains agency costs is not a new one. See Richard H. McAdams, The Political Economy of Criminal Law and Procedure: The Pessimists' View, in Paul H. Robinson, Kimberly Kessler Ferzan, and Stephen P. Garvey, eds, Criminal Law Conversations 6 (Oxford 2009) ("[M]arket discipline is probably more reliable than electoral politics at driving into extinction an entity that is bad at controlling agency costs.").
168. The opt-out option is seen clearly in the case of the Weyco smoking ban. About twenty employees have kicked the habit as a result of the threat, but others have chosen to leave. One employee quit on the grounds that the policy, which told her what she could and could not do in her own house, was offensive to her. "You feel like you have no rights. You're all alone. It's the most helpless feeling you can imagine." Peters, Company's Smoking Ban Means Off-hours, Too (cited in note 8) (discussing privacy concerns and slippery slope arguments stemming from the instance of a company actually testing to enforce its no-smoking policy). Other employees like Christine Boyd, who smoked for 10 years, decided that choosing her job over cigarettes was "a no-brainer."
169. Id.
170. See generally Mark V. Pauly, Means-testing in Medicare, Health Affairs Web Exclusive W4-546 (2004), online at http://content.healthaffairs.org/cgi/ reprint/hlthaff.w4.546vl.pdf (visited Oct 3,2009) (noting that wealthy seniors receive largely the same Medicare benefits for the same price as less-wealthy seniors, and arguing for means-tested pricing).
171. For an egregious case, see A.L.A. Schechter Poultry Corp v United States, 295 US 495 (1935). The Schechter brothers, Jewish butchers from Brooklyn, were indicted for over sixty counts of violating the National Industrial Recovery Act. They violated certain provisions of the "Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and about the City of New York,"
172. id at 527 n 5, including competing too hard and allowing customers to select birds to be killed,
173. id at 527-28 (as required by certain religious precepts). Historical accounts put much of the blame on the statute, which was overturned by the Supreme Court, and on unions, which lobbied to force nonunion firms out of business. There was also a strongly antiSemitic tone to the regulations and prosecution.
174. See Amity Shlaes, The Forgotten Man: The New History of the Great Depression 203-204 (Harper Perennial 2008) (noting that the East Coast poultry
175. The average tenure in the 108th Congress was nine years and eleven months. See 108th Congress: A Profile, C-Span.org, online at http://www.c-span.org/congress/profile.asp (visited Oct 3, 2009). The longest-serving member served forty-seven years in the House and forty-four years in the Senate.
176. Id. No CEO has had that long a run. In addition, Senate terms are six years in themselves, which is longer than the expected run for any CEO.
177. See Matthew Kirdahy, CEO Turnover Increased in 2007, Forbes.com http://Forbes.com (Mar 7, 2008), online at http://www.forbes.com/2008/03/07/ executive-ceo-tenure-lead-manage-cx-mk-0307turnover.html (visited Oct 3, 2009) (citing study showing the average tenure of a CEO who left in 2007 was six years).
178. See also Caroline McCarthy, AT&T CEO Whitacre Announces Retirement, CNET News, (Apr 27, 2007), online at http://news.cnet.com/ATT-CEO-Whitacre- announces-retirement/2100-1036-3-6179818.html (visited Oct 3, 2009) (noting that Edward Whitacre, who was retiring after 17 years as CEO, was the then longest serving CEO in his industry).
179. See Alan I. Abramowitz, Brad Alexander, and Matthew Gunning, Incumbency, Redisricting, and the Decline of Competition in U.S. House Elections, 68 J Pol 75, 75 (2006) (describing increasing success of incumbents from 87 percent in the late 1940s to 99 percent at the turn of the century).
180. See id at 81-82 & figure 3 (researching the decline in competitiveness of House elections and probability of reelection).
181. while both employment decisions and individual decisions to move in or out of jurisdiction are complicated by a variety of other factors, it will be easier to isolate the cause and effect of corporate policies. Firms can and do run experiments of sorts to test the impact of changes in one element of an employment package on the cost of labor. Corporate policies are much more easily changed than law, and the ability to see an immediate impact makes this possible.
182. Anup Malani points out how political accountability might be the same as corporate accountability, by noting how laws are just local amenities, like nice weather or a vibrant music scene, and have a measurable impact on movements of citizens in and out of a jurisdiction. See generally Anup Malani, Valuing Laws as Local Amenities, 121 Harv L Rev 1273 (2008). Accepting this as true, the accountability is still much less for political actors. While a human resources executive sees the impact of a particular employment policy - say, increased premiums for overweight employees or a no-smoking policy - every time they make any employment decision, the politician who passes a law banning smoking is unlikely to be able to tie this directly to net losses in population, and even if this is possible, it is only likely to be significantly attenuated from the decision, and thus a much less powerful signal.
183. This, of course, assumes at least the semi-strong version of the efficient capital markets hypothesis. See generally Eugene F. Fama, Foundations of Finance 133-167 (Basic Books 1976) (unpacking the efficient capital markets hypothesis).
184. See Westfall Act, 28 USC §2679(b)(1) ("The remedy against the United States ... [provided by the Federal Tort Claims Act] is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim.").
185. See also Wuterich v Murtha, 562 F3d 375, 386 (DC Cir 2009) (finding Representative John Murtha immune from charges of libel, invasion of privacy, and defamation because the statements he made to reporters were "directly tied to his congressional political agenda").
186. Employee Retirement Income Security Act of 1974 (ERISA), Pub L No 93-406, 88 Stat 829, codified at 29 USC §1001 et seq.
187. See, for example, Wakefield v Northern Telecom, Inc, 769 F2d 109,112-13 (2d Cir 1985) (holding that a firm cannot fire an employee to deny an already-earned commission).
188. Compare Monge v Beebe Rubber Co, 114 NH 130,133 (1974) ("[A] termination by the employer of a contract of employment at will which is motivated by bad faith or malice or based on retaliation is not the best interest of the economic system or the public good and constitutes a breach of the employment contract.")
189. with Dandridge v Chromcraft Corp, 914 F Supp 1396,1406 (ND Miss 1996) (noting that in Mississippi "at-will employment relationships are not governed by a 'covenant of good faith and fair dealing' which gives rise to any quasi-tort cause of action for wrongful termination").
190. This argument is akin to one made by Gary Becker, who showed how labor markets can help reduce discrimination based on, among other things, race. See Gary S. Becker, The. Economics of Discrimination 43-45 (Chicago 2d ed 1971).
191. Some firms may do this indirectly, say by requiring very long work hours, but these cases are limited, and, in any event, may simply influence the choice of spouse.
192. The limits of human knowledge in the face of complex problems and the ability for markets of dispersed agents to achieve efficient results through trial and error is the central insight of the work of, among others, F.A. Hayek. See FA. Hayek, The Fatal Conceit: The Errors of Socialism 76 (Chicago 1991) (WW. Bartley, III, ed) ("The curious task of economics is to demonstrate to men how little they really know about what they imagine they can design.").
193. See Harry G. Levine and Craig Reinarman, Alcohol Prohibition and Drug Prohibition: Lessons from Alcohol Policy for Drug Policy, in Jefferson M. Fish, ed, Drugs and Society: U.S. Public Policy 43, 48-49 (Rowman & Littlefield 2005) (noting that while the volume of alcohol consumption fell as bulky beer became too hard to transport, the consumption of spirits increased and perceptions of drunkenness increased concomitantly).
194. A Pigouvian tax, named after economist Arthur Pigou, are those levied to remedy activities that cause negative externalities. See William J. Baumol, On Taxation and the Control of Externalities, 62 Am Econ Rev 307, 307-308 (1972) (arguing that for externalities of the public goods variety, like pollution, Pigouvian taxes are sufficient to achieve an efficient allocation of resources).
195. Compare William Nordhaus, Critical Assumptions in the Stern Review on Climate Change, 317 Science 201, 201 (2007) (analyzing a number of current assumptions and calculations regarding the economics of climate change)
196. with Nicholas Stern, The Economics of Climate Change: The Stern Review (Cambridge 2006).
197. -13O Another example of this forecasting problem can be seen in Europe's carbon emissions market. The cap-and-trade system was highly sensitive to the number of initial permits, and the process for determining this number was based on political compromise. The number of permits was set too high, which drove the price to near zero and caused the market, designed to force firms to internalize their costs, to nearly collapse. See James Kanter, Carbon Prices Tumble as Global Downturn Bites, NY Times (Jan 21, 2009), online at http://greeninc.blogs.nytimes.com/2009/01/21/carbon-prices-tumble-as-global- downturn-bites (visited Oct 3, 2009) (noting that when the permit system began, the market was not aware of the permit surplus, but that when traders recognized the excess supply they bid the price of permits down to nearly zero);
198. Carter F. Bales and Richard D. Duke, Containing Climate Change: An Opportunity for US Leadership, Foreign Aff 78, 80 (Sept/Oct 2008) (describing the cause of the improper permit allocation as a combination of bad data and efforts by EU member states to shield their local industries from real cuts).
199. An example is the recent failure of Governor David Paterson's proposed 18 percent tax on non-diet sodas in New York State, which was withdrawn after widespread disapproval. See Paterson Admits Obesity Tax Plan Has Failed, wcbstv.com (Feb 13, 2009), online at http://wcbstv.eom/politics/obesity.tax. soda.2.934147.html (visited Oct 3,2009) (reporting that the New York City Health Commissioner supported the proposal, but that it was dropped because it would never have passed the state legislature).
200. See Charles Courtemanche and Art Carden, The Skinny on Big Box Retailing: Wal-Mart, Warehouse. Clubs, and Obesity *1 (working paper, Aug 15, 2009), online at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1263316 (visited Oct 4, 2009) (documenting the effects of big box companies on alcohol consumption, smoking, exercise, eating out, and food consumption).
201. Adam Drewnowski and Nicole Darmon, Food Choices and Diet Costs: An Economic Analysis, 135 J Nutr 900, 900 (2005) (explaining how obesity is linked to socioeconomic factors);
202. Adam Drewnowski, Obesity and the. Food Environment: Dietary Energy Density and Diet Costs, 27 Am J Prev Med 154, 154 (2004).
203. Government Unit 'Urges Fat Tax, ' BBC News Online (cited in note 29).
204. See Tax Policy Center, Distribution of Tax Units with Zero or Negative Individual Income Tax Liability by Cash Income. Level, Brookings Institution table T08-0208 (Aug 15,2008), online at http://www.taxpolicycenter.org/numbers/ Content/PDF/T08-0208.pdf (visited Oct 4, 2009) (showing that 37.8 percent of Americans have no federal income tax liability).
205. See Cindy Krischer Goodman, More Employers Looking at Their Roles in Obesity, Miami Herald Online (Sept 22, 2009), online at http://www.miamiherald. com/news/southflorida/story/1247040.html (visited Oct 4, 2009) (noting that "about 40 percent of U.S. companies have implemented obesity-reduction programs").
206. According to a March 2005 GAO report, in 2004 about 50 percent of these funds were used to balance state books or for general purposes, while about 20 percent were used for "health." See GAO, Tobacco Settlement: States' Allocations of Fiscal Year 2004 and Expected Fiscal Year 2005 Payments GAO-05-312, 10 (2005), online at http://www.gao.gov/new.items/d05312.pdf (visited Oct 5, 2009) (systematically determining how states used the funds received from tobacco litigation).
207. It does not really matter what the rule setter does with the money it collects or saves, as long as the amount of the externality is set appropriately. So, if a nanny had a computer that revealed perfectly the societal cost of smoking, the nanny could set the Pigouvian tax or adjust a ban in ways so as to impose exactly that cost on individual smokers. If this is set correctly, the state could burn the money or give it away to the poor in Ethiopia, and still achieve the optimal level of internalization.
208. Most of the corporate law literature is devoted to addressing the problems of managerial graft and shirking that arise from the agency costs of the modern corporate form. See generally, for example, Lucían Bebchuk and Jesse Fried, Pay without Performance: The Unfulfilled Promise of Executive Compensation (Harvard 2004). Others criticize the conclusions of this research, see, for example, M.Todd Henderson, Paying CEOs in Bankruptcy: Executive Compensation When Agency Costs Are Low, 101 Nw U L Rev 1543,1544 (2007). To be sure, if CEOs want to profit at the expense of shareholders, paying themselves excessively or consuming excessive perks would be a far more profitable mechanism than using nanny rules.
209. This problem is especially acute in cases in which the government uses litigation to recoup payments made from the parties allegedly responsible for causing the harm in the first place.
210. Kimberley A. Strassel, Challenging Spitzerism at the Polls, Wall St J All (Aug 1,2008).
211. See id.
212. if a weakness in this argument is executive pay, then that is a problem with executive pay that should be resolved on those terms.
213. See Strassel, Challenging Spitzerism at the Polls (cited in note 164).
214. For instance, state taxes on just tobacco were about $19 billion in 2008, see Reuters, FDA Tobacco Bill Could Cost US States, reuters.com (Apr 14, 2009), online at http://www.reuters.com/article/domesticNews/ idUSTRE53D67S20090414 (visited Oct 3, 2009), while "[t]he estimated direct and indirect costs
215. associated with smoking exceed $75 billion annually," Chronic Disease Burden and Expenditures in the United States: A Report from State and Territorial Health Agencies A (Chronic Disease Directors Nov 2004), online at http://www.chronicdisease.org/files/public/StateExpendituresReportDraftll2904. pdf (visited Oct 5, 2009). For information about state budgets,
216. see Elizabeth McNichol and Iris J. Lav, New Fiscal Year Brings No Relief from Unprecedented State Budget Problems, Center on Budget and Policy Priorities 5 table 1 (Sept 3, 2009), online at http://www.cbpp.org/files/9-8-08sfp.pdf (visited Oct 5, 2009).
217. This is not the Johnstown Flood; that was in 1889. See Associated Press, Johnstown Marks Flood Centennial, NYTimes A18 (June 1,1989) (noting that "[t]he 1889 flood was created when, after days of rain, the earthen South Fork Dam collapsed and unleashed 20 million tons of water from a reservoir that was a summer resort for millionaire industrialists").
218. See Drinkers Still Pay Mood Relief Tax Enacted in 1936, WGAL.com (July 12, 2005), online at http://www.wgal.com/news/4711497/detail.html? (visited Oct 5, 2009) (showing how the tax still exists and is generating hundreds of millions of dollars per year that are going into the general treasury).
219. See id.
220. See id.
221. Compare Rick Klein and Kate Barrett, Anti-tax 'Tea Parties' Protest President Obama's Tax and Spending Policies, ABC News (Apr 15, 2009), online at http://abcnews.go.com/Politics/Story?id=7337117&page=l (visited Oct 5, 2009) (describing the spontaneous organization of over 750 "tea parties" to protext profligate government spending and inevitable tax increases)
222. with Gary Langer, Of Taxes and Tea, ABC News: The Numbers (Apr 15, 2009), online at
223. See also Robert Schlesinger, Sorry, Tea Party Movement, Polls Say Americans Don't Mind Taxes, US News & World Rep (Apr 15, 2009), online at http://www.usnews.com/blogs/robert-schlesinger/2009/4/15/sorry-tea-party- movement-polls-say-americans-dont-mind-taxes.html (visited Oct 5, 2009) (noting that the recent Gallup poll data is "only the second time in more than half a century [that] a plurality of Americans (48-46 percent) think that they're paying the proper amount of taxes").
224. See Robert A. Sirico, Sin Taxes: Inferior Revenue Sources, Budget & Tax News (The Heartland Institute July 2004), online at http://www.heartland. org/policybot/results/15293/Sin-Taxes-Inferior-Revenue-Sources.html (visited Oct 5, 2009) (stating that sin taxes appeal "to voters who view [them] as a way of discouraging consumption of certain objectionable products"). For specific examples,
225. see Americans Overwhelmingly Support Increase in State Alcohol Taxes, AlcoholPolicyMD.com http://AlcoholPolicyMD.com (May 2004), online at http://www.alcoholpolicymd.com/press-room/polls/alcohol-tax-poll.htm (Oct 5, 2009) (reporting survey data that shows support for alcohol taxes to fund programs aimed at preventing underage drinking);
226. Gary King, et al., African Americans'Attitudes toward Cigarette Excise Taxes, 93 Am J Pub Health 828,831 (2003).
227. See National Center for Health Statistics, Obesity and Overweight (CDC Apr 2, 2009), online at http://www.cdc.gov/nchs/fastats/overwt.htm (visited Oct 5, 2009) (reporting that 67 percent of noninstitutionalized, adult Americans over 20 years of age are "overweight or obese").
228. Although there is some evidence that obesity is higher among arguably politically weaker individuals, see Jennifer L. Black and James Macinko, Neighborhoods and Obesity, 66 Nutr Rev 2,14 (2008) (concluding from a literature search that neighborhoods with lower economic status have higher rates of obesity), there are two problems with this potential rebuttal. First, the correlation between lower income and lower political power is questionable in light of policies and technologies that increase the influence of groups, including minorities and other concentrated interests. Second, although rates are higher among the poor, the obesity problem is far more widespread than that: almost 70 percent of Americans are overweight or obese according to the Centers for Disease Control. See National Center for Health Statistics, Obesity and Overweight (cited in note 172).
229. See Hayek, The. Fatal Conceit at 151 (cited in note 146) (discussing how "time's arrow" preferably selects certain "patterns of activities").
230. See, for example, Cal Civ Code §3428 (West) (requiring private providers of health care services or those who reimburse health care costs to "have a duty of ordinary care to arrange for the provision of medically necessary health care service to its subscribers and enrollees").
231. See Associated Press, Company to Charge 'Unhealthy' Workers More for Insurance (cited in note 101).
232. See, for example, Interview: Uwe Reinhardt & Tsung-mei Cheng, Frontline (PBS Apr 15, 2008), online at http://www.pbs.org/wgbh/pages/frontline/ sickaroundtheworld/interviews/reinhardt.html (visited Oct 6, 2009) (comment of Tsung-mei Cheng) ("So currently the rules are, say, if a patient goes to see a doctor [a certain amount],... the person then gets a visit from the government, the Bureau of National Health Insurance, and they have a little chat.").
233. For example, BP has such a cell phone policy. See BP, Understanding the Driving Standard by Element, online at http://www.bp.com/liveassets/bp-internet/ china/bpchina-english/STAGING/local-assets/downloads-pdfs/uv/ Understanding-the-Driving-Standard-by-Element. pdf (visited Nov 22, 2009). This might sound extreme, but consider the potential liability that firms face from this behavior. In a recent case, International Paper paid over $5 million to settle a claim alleging that its employee, using a cellphone while driving, caused an accident in which a woman lost an arm.
234. See Janet L. Conley, Cell Phone Use in Car Leads to $5.2 Million Payout by Employer, Law.com (Feb 13, 2008), online at http://www.law.com/jsp/ article.jsp?id=1202815251120 (visited Oct 6, 2009).
235. Deterrence is the product of the expected penalty and the probability of being caught. This means that the nanny can reduce the need for monitoring by increasing penalties. Since the state has the ability to raise penalties higher than firms, this means that in some instances it may be able to reduce monitoring costs below that of firms. See Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J Polit Econ 169, 170 (1968) (presenting a formal model for the replacement of criminal law enforcement with higher sanctions, keeping the crime rate constant).
236. See generally Harsanyi, Nanny State, (cited in note 24).
237. See, for example, Julian Sanchez, Save Me from Myself! Parentalism and the Fear of Freedom, Reason.com (July 12, 2005), online at http://reason.com/ archives/2005/07/12/save-me-from-myself http://reason.com/archives/2005/07/12/ save-mefrom-myself (visited Oct 6, 2009) (criticizing state nannyism as "the attempt to avoid the burdens of responsibility by denying our own freedom").
238. See generally, for example, Morris M. Kleiner, A License for Protection, 29 Regulation 17 (Fall 2006) (asking "[w]hy has occupational regulation grown?").
239. See From Incentives to Penalties: How Far Should Employers Go to Reduce Workplace Obesity?, Knowledge@Wharton 3 (Jan 9, 2008), online at http://knowledge.wharton.upenn.edu/articlepdf/1876.pdf (visited Oct 6, 2009) (noting that "[s]ome employees or ex-employees have sought protection in the federal Americans with Disabilities Act (ADA), claiming their obesity is a disability, but so far without much success," but that "some viable legal strategies remain open for obese people seeking redress through the disabilities Act").
240. See, for example, id.
241. Bureau of Labor Statistics, Union Affiliation of Employed Wage and Salary Workers by Occupation and Industry, table 3 (Jan 28, 2009), online at http://www.bls.gov/news.release/union2.t03.htm (visited Oct 6,2009) (creating a table to show the percentages of the workforce represented by and involved in unions);
242. Steven Greenhouse, Labor Leader Sounds Do-or-Die
243. See Schultz, Lee, and Lacy, Workers Fume, as Firms Ban Smoking at Home, Detroit News at Al (cited in note 2) (noting that Weyco "told current employees who smoked that they had 15 months to quit").
244. As discussed below, some states have so-called lawful product statutes that may give a cause of action to an applicant that is denied an employment opportunity because of engaging in the use of a legal product, like cigarettes.
245. See note 214 and accompanying text. In practice, however, these laws will have much less bite at the hiring stage than the firing stage. Employers can screen out smokers in covert ways without asking about smoking habits, and few denied a job will sue to get it unless told explicitly the reason for the decision. By contrast, fired workers have both better information about firm policies, more leverage, an easier case to make, and may be in worse financial circumstances.
246. see Valleau, 10 DePaul J Health Care L at 459 n 15 (cited in note 7) (noting that under the Health Insurance Portability and Accountability Act, a premium differential based on health factors must not be "more than 10-20 percent of the total cost of employee-only coverage").
247. But see Lisa Mascaro, Bigger Premium Discounts Seen as a Reward-And a Problem, Las Vegas Sun (Sept 27,2009), online at http://www.lasvegassun.com/ news/2009/sep/27/bigger-premium-discountsseen-reward-and-problem (visited Oct 6, 2009) (describing a recently introduced amendment to the healthcare reform bill "that would allow employers to offer deep discounts-up to 50 percent-on insurance if employees stay trim, quit smoking or otherwise lead healthy lives").
248. Medicare, the health insurance policy for Americans over the age sixty-five, is effectively mandatory for individuals over sixty-five. See note 132 and accompanying text. Opting out of the program is extremely expensive because, in part, it requires forgoing all other government retirement benefits, as well as paying very high amounts for personal insurance.
249. See Social Security Administration, HI 00801.002, Waiver of HI Entitlement by Monthly Beneficiary (Aug 30, 1993), online at http://policy.ssa.gov/poms.nsf/links/0600801002 (visited Oct 6, 2009).
250. As in other contexts, not everyone has to be sophisticated or sensitive to these issues, since the marginal buyers will be the price setters.
251. Historians note that "[w]orkers unsatisfied with their situation could pick up and leave." Garner, Introduction at 6 (cited in note 39).
252. See Becker, The Economics of Discrimination at 13-18 (cited in note 144).
253. See, for example, Marcum v McWhorter, 308 F3d 635, 637 (6th Cir 2002) (holding that a police officer fired for having an adulterous relationship with a married woman was not deprived of constitutionally protected rights).
254. There are reasons to believe that even invidious discrimination is not problematic. Employers compete in markets for labor, and assuming these are liquid and there are no monopsonist buyers of labor, these markets constrain excesses, such as not hiring short people. If a firm refuses to hire short people, it will be losing the opportunity to hire productive workers, its labor costs will rise, and it will be disadvantaged vis-à-vis competitors who draw from the entire labor pool. Firms will therefore have incentives not to discriminate in ways that are not related to productivity or other costs.
255. For example, firms are prohibited by federal law from intentionally interfering with an employee's receipt of pension benefits. See note 141 and accompanying text.
256. See Cha, Firms Make It Their Business to Push Health, Wash Post at Al (cited in note 90).
257. Kant's essay was a response to a question-"What is enlightenment'?"-posed to readers of the German periodical Berlinische Monatsschrift. Kant had the winning essay, and it was published in the December 1784 issue.
258. See Immanuel Kant, An Answer to the Question: What Is Enlightenment?, in James Schmidt, ed, What is Enlightenment?: Eighteenth-century Answers and Twentieth-century Questions 58, 58 (California 1996).
259. Id at 59.
260. Id at 58-59.
261. See generally Friedrich A. Hayek, The Road to Serfdom (Chicago 1944).
262. Allen, The Company Town in the American West at 125 (cited in note 41).
263. Kant, An Answer to the Question: What is Enlightenment? at 58-59 (cited in note 197).
264. Allen, The Company Town in the American West at 126 (cited in note 41).
265. Id.
266. Id at 127.
267. See note 133 and accompanying text (discussing the "Sick Chicken" case, A. L.A. Schlechter Poultry Corp v United States, 295 US 495 (1935)).
268. See generally M. Todd Henderson and Anup Malani, Corporate Philanthropy and the Market for Altruism, 109 Colum L Rev 571 (2009).
269. Robert Sprague, Fired for Blogging: Are. There Legal Protections for Employees Who Blog?, 9 U Pa J Lab & Emp L 355, 360 (2007) (noting that all fifty states and the District of Columbia, except Montana, have adopted employment-at-will).
270. See Cha, Firms Make It Their Business to Push Health, Wash Post at Al (cited in note 90) (noting that "[t]hirty states ... have laws preventing discrimination against smokers" and "[t]hirteen states prohibit employers from regulating alcohol use during non-work hours").
271. See also Jason Bosch, None of Your Business (Interest): The Argument for Protecting All Employee Behavior with No Business Impact, 76 S Cal L Rev 639,654 (2003) ("Approximately twenty-eight states have recognized the failure of the market to protect employees' off-the-job interests and adopted specific protections against at-will abuses.").
272. Conlin, Get Healthy-Or Else, Bus Wk at 58 (cited in note 113).
273. See id.
274. There are six "lawful product statutes": Illinois, 820 ILCS Ann 55/5 (West);
275. Minnesota, Minn Stat Ann §181.938 (subd 2) (West);
276. Montana, Mont Code Ann §39-2-313;
277. Nevada, Nev Rev Stat §613.333;
278. North Carolina, NC Gen Stat §95-28.2;
279. and Wisconsin, Wis Stat Ann §111.321 (West).
280. There are four "lawful activity statutes": California, Cal Lab Code §96(k) (West);
281. Colorado, Colo Rev Stat Ann §24-34-402.5 (West);
282. New York, NY Lab Law §201-d (McKinney);
283. and North Dakota, ND Cent Code §14-02.4-03.
284. -820 ILCS 55/5 (West).
285. Ten states allow employers to pass on higher insurance charges to particular employees based on their tobacco use: Illinois, 820 ILCS 55/5(c) (West);
286. Indiana, Ind Code Ann §22-5-4-1 (Mitchie); Minnesota, Minn Stat Ann §181.938(3)(c) (West);
287. Montana, Mont Code Ann §39-2313(5);
288. New York, NY Lab Law §201-d(6) (McKinney);
289. North Carolina, NC Gen Stat §95-28.2(d);
290. South Dakota, SD Cod Laws §60-4-11;
291. West Virginia, W Va Code §21-3-19;
292. Wisconsin, Wis Stat §111.321;
293. and Wyoming, Wyo Stat §27-9-105.
294. After the act was passed by the Illinois legislature in 1991, the governor wrote an official message explaining that the bill in no way interferes with programs designed to promote health among employees as "[t]hese programs are beneficial and should be encouraged."
295. See Letter from Jim Edgar, Governor of Illinois, to the Illinois House of Representatives (Sept 23,1991), reprinted in Right to Privacy in the Workplace Act, 111 HR Bill No 1533 (1991).
296. "Lawful activity statutes" are found in four states: California, Cal Lab Code §96(k) (West);
297. Colorado, Colo Rev Stat Ann §24-34-402.5 (West);
298. New York, NY Lab Law §201-d (McKinney);
299. and North Dakota, ND Cent Code §14-02.4-03.
300. See note 214.
301. These states are: Colorado, Colo Rev Stat Ann §24-34-402.5 (West);
302. Connecticut, Conn Gen Stat §31-4Os;
303. District of Columbia, DC Code §7-1703.03;
304. Illinois, 820 ILCS 55/5 (West);
305. Minnesota, Minn Stat Ann §181.938 (West);
306. Missouri, Mo Rev Stat §290.145;
307. Montana, Mont Code Ann §39-2-313;
308. Nevada, Nev Rev Stat Ann §613.333 (Mitchie);
309. New Jersey, NJ Stat Ann § 34:6B-1 (West);
310. New Mexico, NM Stat Ann §50-11-3;
311. New York, NY Lab Law §201-d (McKinney);
312. North Carolina, NC Gen Stat §95-28.2;
313. North Dakota, ND Cent Code §14-02.4-03;
314. Oregon, Or Rev Stat §659A.315;
315. Rhode Island, RI Gen Laws §23-20.10-14;
316. South Dakota, SD Cod Laws §60-4-11;
317. West Virginia, W Va Code §21-3-19;
318. Wisconsin, Wis Stat §111.35;
319. and Wyoming, Wyo Stat §27-9-105.
320. These states are: Connecticut, Conn Gen Stat §31-4Os;
321. District of Columbia, DC Code §71703.03(a);
322. Kentucky, Ky Rev Stat Ann §344.040 (Banks-Baldwin);
323. Louisiana, La Rev Stat Ann § 23:966 (West);
324. Maine, 26 Me Rev Stat Ann §597 (West);
325. Mississippi, Miss Code §71-7-33;
326. New Hampshire, NH Rev Stat Ann §275:37-a (Equity);
327. New Jersey, NJ Stat Ann §34:6B-1 (West);
328. New Mexico, NM Stat Ann §50-11-3;
329. Oklahoma, 40 Okla Stat Ann §500 (West);
330. Oregon, Or Rev Stat § 659A.315;
331. Rhode Island, RI Gen Laws §23-20.10-14;
332. South Carolina, SC Code Ann §41-1-85 (Law Co-op);
333. South Dakota, SD Cod Laws §60-4-11;
334. Tennessee, Tenn Code Ann §50-1-304;
335. Virginia, Va Code §2.2-2902;
336. and West Virginia, W Va Code §21-3-19. Many of these states are ones with a strong tobacco presence (like Virginia, West Virginia, South Carolina, and so on).
337. Conn Gen Stat §31-40s(a). Employers can, of course, continue to ban smoking at their business locations, even if the employee is not on duty. Conn Gen Stat §31-40q(d).
338. See Cha, Firms Make It Their Business to Push Health, Wash Post at Al (cited in note 90) ("Thirteen states prohibit employers from regulating alcohol use during non-work hours.").
339. These states are: Alabama, Alaska, Arizona, Arkansas, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa, Kansas, Maryland, Massachusetts, Michigan, Nebraska, Ohio, Pennsylvania, Texas, Utah, Vermont, and Washington. See National Conference of State Legislatures, Off-duty Conduct (cited in note 212), citing Gudas, State Lawful Products Statutes (cited in note 212) (presenting the table that forms the basis for the National Conference of State Legislatures site but containing some out-dated data).
340. See Valleau, 10 DePaul J Health Care L at 484 η 140 (cited in note 7) (detailing the sequence of enactment by year).
341. The workers' rights bills are the Employee Privacy Protection Act, Mich HB 4532 (2007);
342. the Job Applicant Credit Privacy Act, Mich HB 4887 (2007);
343. the Respect for Physical Differences Act, Mich HB 4926 (2007);
344. and the Employee Family Health Privacy Act, Mich HB 4927 (2007). On May 15, 2008, the legal activity bill passed the House 63-45;
345. separate bills included in the overall package would also prevent employers from firing, refusing to hire, or discriminating against employees based on their credit history, physical appearance, or health passed by narrower margins.
346. See Tim Martin, Michigan House Oks Worker Activity Bill, Associated Press (May 15, 2008).
347. See generally Conn Gen Stat §19a-342, §31-4Oq.
348. See Associated Press, California Town Approves Ban Making Smoking Illegal in C.ondos, Apartments, Fox News (Oct 10, 2007), online at http://www.foxnews. com/story/ 0,2933,300658,00.html (visited Oct 7,2009).
349. See Cal Lab Code §96(k).
350. Health Insurance Portability and Accountability Act, Pub Law No 104-191, HO Stat 1936 (1996), codified at 42 USC §201.
351. Americans with Disabilities Act, Pub L No 101-336,104 Stat 327 (1990), codified at 42 USC §12101 et seq.
352. Employee Retirement Income Security Act of 1974, Pub L No 93-406, 88 Stat 829, codified at 29 USC §1001 et seq.
353. See Internal Revenue Service, Employee Benefits Security Administration, and Centers for Medicare & Medicaid Services, Nondiscrimination and Wellness Programs in Health Coverage in the Group Market, 71 Fed Reg 75014, 75015 (2006) ("[A]ny restriction on a benefit or benefits must apply uniformly to all similarly situated individuals and must not be directed at individual participants or beneficiaries based on any health factor of the participants or beneficiaries.").
354. See also Tiffani P. Hiudt, Towards a Smoke-free Workforce: A Roadmap for Private Employers, 21 Health Lawyer 26, 28 (2009);
355. Department of Labor, FAQs about the HIPAA Nondiscrimination Requirements, online at http://www.dol.gov/ebsa/faqs/faq-hipaa-ND.html (visited Oct 8, 2009).
356. See 71 Fed Reg at 75017,75035 (cited in note 231).
357. See Christy Tinnes, DOL, Treasury, & HHS Issue Final Wellness Program Rules, Groom Law Group (Dec 18, 2006), online at http://www.appwp.org/ documents/glg-wellness122106.pdf (visited Oct 8, 2009).
358. See note 115 and accompanying text.
359. See 71 Fed Reg at 75017 (cited in note 231).
360. See Jena McGregor, Being Unhealthy Could Cost You - Money, Bus Wk Online (Aug 2, 2007), online at http://www.businessweek.com/bwdaily/dnflash/content/ aug2007/db2007081-804238.htm (visited Oct 8,2009).
361. See Internal Revenue Service, Pension and Welfare Benefits Administration, and Health Care Financing Administration, Notice of Proposed Rulemaking for Bona Fide Wellness Programs, 66 Fed Reg 1421, 1421 (2001).
362. Id at 1432.
363. Id at 1422.
364. See Associated Press, Employers Charging Smokers Extra for Health Insurance, USAToday.com (Feb 16,2006), online at http://www.usatoday.com/money/ workplace/2006-02-16-smokers-cost-more-x.htm (visited Oct 8, 2009) (noting that "[a] growing number of private and public employers are requiring employees who use tobacco to pay higher premiums," including "Meijer, Gannett, American Financial, Pepsi and General Mills").
365. -71 Fed Reg at 75018, 75036 (cited in note 231). Under this exception a wellness program that charges employees more for smoking is lawful as long as the extra charge does not exceed 20 percent of the total cost of health insurance coverage for the employee.
366. See McGregor, Bang Unhealthy Could Cost You - Money, Bus Wk Online (cited in note 236).
367. See Kaiser Family Foundation, Trends in Health Care Costs and Spending (Sept 2007), online at http://www.kff.org/insurance/upload/7692.pdf (visited Oct 8, 2009).
368. See note 101 and accompanying text.
369. Fees or programs tied to particular individual characteristics, like weight, smoking, diet, exercise regime, and so on allow a firm to tailor programs to specific individuals by the groups they are in.
370. See generally 42 USC §12101 et seq.
371. -42 USC §12112, 12113.
372. Jon McLaughlin, What Relevance Does the ADA Have to HIPAA-regulated "Bona Fide. Wellness Programs"?, Ill Bus L J (Feb 10, 2007), online at http://iblsjournal.typepad.com/illinois-business-law-soc/2007/02/hippa- wellness-.html (visited Oct 8, 2009).
373. Henn v National Geographic Society, 819 F2d 824, 826 (7th Cir 1987) (discussing the voluntariness inquiry in an age-discrimination case stemming from an early-retirement program instituted by National Geographic).
374. See Rose v Home Depot USA, Inc, 186 F Supp 2d 595, 615 n 7 (D Md 2002) (determining that vasomotor rhinitis, in this case, was not sufficiently impairing to qualify as a disability and ruling that failure to take proper measures to diagnose and treat the condition precludes a claim under the ADA).
375. See also Sutton ν United Airlines, Inc, 527 US 471, 494-95 (1999) (Ginsburg concurring) (holding that "correctable disabilities" are per se outside the scope of the ADA), superseded by statute on other grounds,
376. ADA Amendments Act of 2008 (ADAAA), Pub L No 110-325, 122 Stat 3553, codified at 42 USC §12101 et seq.
377. See 29 USC §1001 (announcing the purpose and scope of ERISA).
378. Employee Retirement Income Security Act of 1974 § 510, Pub L No 93-406, 88 Stat 829, codified at 29 USC §1140.
379. Rodrigues v Scotts Co LLC, 2008 WL 251971, *4 (D Mass) (citation omitted) (ruling on a complaint alleging that enforcement of a no-smoking policy is unlawful under Massachusetts law and ERISA).
380. Fired employees have also tried to invoke Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, color, religion, sex, and national origin.
381. Title VII of the Civil Rights Act of 1964, Pub L No 88-353, 78 Stat 253, codified at 42 USC § 2000 e et seq. These efforts have largely failed.
382. While disparate impact arguments can be made, the Supreme Court held in New York City Transit Authority v Beazer, 440 US 568 (1979), that a policy of refusing to hire individuals with past narcotic addiction was constitutional.
383. Id at 594. The Court held that the restriction bore a "manifest relationship to the employment" and this was sufficient to rebut plaintiff's claims of racial disparate impact.
384. Id at 587 η 31.
385. Pub L 93-112, 87 Stat 355, codified at 29 USC 701, et seq.
386. -29 USC §794. See also id at §793 (requiring parties of a contract in excess of $2,500 to "take affirmative action to employ and advance in employment qualified individuals with disabilities").
387. State Division of Human Rights v Xerox Corp, 480 NE2d 695, 698 (NY 1985) (rejecting defendant's claims of mutability and holding that obesity is a protected handicap under a state statute using language from the Act).
388. Current use of drugs and alcohol is not generally protected by courts or in state statutes, but prior use often is. See 29 USC §705(20)(C)(v) (defining the term disability to exclude individuals whose current use of alcohol or drugs inhibits them from performing the duties of a job). Some state statutes expressly exclude these individuals from the definition of handicap.
389. See, for example, Ariz Rev Stat Ann §41-1461(2) (West) (excluding those who are currently using drugs from the disability category). But courts are split on the issue.
390. Compare Doe ν Roe, Inc, 539 NYS2d 876, 879-80 (NY S Ct 1989) (holding that a drug addiction is a handicap);
391. Clowes v Terminu International, Inc, 538 A2d 794, 804 (NJ 1988) (holding that alcoholism is a handicap);
392. Connecticut General Life Insurance Co v Department of Industry, Labor & Human Relations, 273 NW2d 206, 213 (Wis 1979)
393. (same) with Welsh v Municipality of Anchorage, 676 P2d 602, 603 (Alaska 1984) (holding alcoholism is not a handicap).
394. Searches for cases involving claims of discrimination based on lifestyle choices and firm nanny policies were made using the Westlaw ALLCASES database for the period 1945 to present. Cases were sorted and categorized by hand by two research assistants and the author.
395. private employers win about 80 percent of the cases, while public employers win about 50 percent.
396. See, for example, Patricia B. Hsue, Comment, Lessons from United States v. Stein· Is the Line between Criminal and Civil Sanctions for Illegal Tax Shelters a Dot?, 102 Nw U L Rev 903, 912, 917 (2008) (noting the indeterminacy of "legitimate business purpose" in the context of tax evasion).
397. Although these tests have been around for a long time, they have fallen out of favor precisely because they do not offer business planners sufficient certainty to plan their affairs efficiently. See Weinberger v UOP, Inc, 457 A2d 701, 715 (Del 1983) (rejecting the business purpose test because it reduces the certainty of transactions and does not provide minority shareholders with "meaningful protection").
398. Best Lock Corp v Review Board, 572 NE2d 520, 527 (Ind Ct App 1991);
399. Olson v Job Service North Dakota, 379 NW2d 285, 288 (ND 1985).
400. see generally Gimello v Agency Rent-A-Car Systems, Inc, 594 A2d 264 (NJ Super Ct 1991).
401. See, for example, Best Lock Corp, 572 NE2d at 524 (discussing the meaning of "reasonable relationship" in an action for unemployment compensation).
402. -572 NE2d 520 (Ind Ct App 1991).
403. See Gregory v Anderson, 109 NW2d 675, 681 (Wis 1961) (holding that the degree of impact on a business from employee conduct is relevant to the propriety of the employer's regulation of that conduct).
404. See, for example, Tucker v Astro Aluminum Heat Treating Co, 2005 CaI App Unpub LEXIS 11220, *22 (granting summary judgment because plaintiff did not sufficiently demonstrate implausibility of the employer's nondiscriminatory reasons for firing based on drinking with spillover into work hours).
405. See Pedersen v Omni Air International Inc, Minn App Unpub LEXIS 1079, *2 (2007) (holding employer rules and FAA regulations expressly prohibited this conduct).
406. With regard to firemen, it is incompatible with the employer's mission, and with regard to cement workers, it is because the dust in the air at the workplace can, when coupled with smoking, lead to illnesses. See, for example, Wood v South Dakota Cement Plant, 588 NW2d 227, 230-231 (SD 1999) (holding that an off-duty, off-premises no-smoking policy is permissible if it is rationally related to employment responsibilities and activities).
407. -559 NW2d 61 (Mich App 1996).
408. See id at 62. Section 202(1)(b) of the Handicappers'
409. Civil Rights Act, Mich Comp Laws § 37.1202(1)(b), provides that an employer shall not "[discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a [handicap] ... that is unrelated to the individual's ability to perform the duties of a particular job or position."
410. Stevens, 559 NW2d at 65.
411. See In re Arnot Ogden Memorial Hospital, 67 AD2d 543, 547-48 (NY App Div 1979) (rejecting an applicant based on successfully treated high blood pressure as impermissible discrimination);
412. American National Insurance Co v Fair Employment and Housing Commision, 32 CaI 3d 603, 610 (1982) (holding high blood pressure is a protected handicap under California Fair Employment Practice Act);
413. Pecci v SA. Cook Factory Showroom, 132 AD2d 935, 936 (NY App Div 1987) (holding hypertension is a protected handicap).
414. See Gimello, 594 A2d at 278;
415. Xerox, 480 NE2d at 695.
416. Xerox, 480 NE2d at 698-699
417. See Burns v City of Phoenix, 875 P2d 1340, 1346 (Ariz Ct App 1993) (holding cancer is a protected handicap under Arizona law);
418. Raytheon Co v Fair Employment and Housing Commission, 212 Cal App 3d 1242, 1150 (1989) (holding that AIDS is a physical handicap under California law).
419. -2008 WL 251971 (D Mass).
420. Id at *1.
421. See id at *3, citing Mass Gen Laws ch 214, §1B.
422. Borse v Piece Goods Shop, Inc, 963 F2d 611, 621 (3d Cir 1992) (holding that an employee discharged for failing to take a drug test could state an invasion of privacy claim under Pennsylvania tort law if the testing revealed personal information unrelated to the workplace).
423. -2008 WL 4151837 (Cal Ct App).
424. Id at * 5.
425. Colo Rev Stat § 24-34-402.5.
426. Marsh v Delta Air Lines, Inc, 952 F Supp 1458, 1462 (D Colo 1997).
427. Id (emphasis added).
428. The "state action doctrine" means actions by public employers will implicate more constitutional rights than private ones. See, for example, Briggs v North Muskegon Police Department, 1984 US App LEXIS 13815, *5 (6th Cir) (holding that the termination of a police officer for cohabitation with a married woman who was not his wife was unconstitutional). This additional scrutiny for government agencies acting in an employment (as opposed to governance) function makes no sense. The Supreme Court seems to be in accord in general terms.
429. See, for example, Engquist v Oregon Department of Agriculture, 128 S Ct 2146, 2151 (2008) (holding that a government employee's constitutional rights are not as robust when government is acting as an employer).
430. -10 F3d 17 (1st Cir 1993).
431. Id at 20-21.
432. Id at 21.
433. Id.
434. Cook, 10 F3d at 23-25, 28 (finding the counterarguments to be "as insubstantial as a pitchman's promise").
435. Id at 22.
436. Rodrigues, 2008 WL 251971 at *1.
437. Id.
438. Id at * 4.
439. See generally Cole v Exxon Mobil Corp, 142 Fed Appx 52 (3d Cir 2005) (holding that an agreement by which alcoholics attend rehabilitation is lawful);
440. Wobser v PPG Industries, Inc, 2000 WL 178177 (9th Cir) (holding that a contractual agreement between an employer and an employee not to drink is enforceable).
441. Compare Equal Employment Opportunity Commission v Watkins Motor Lines, Inc, 463 F3d 436, 443 (6th Cir 2006) (holding obesity is not an ADA impairment unless it stems from a physiological condition) with Cook, 10 F3d at 28 (holding obesity is an impairment under the Rehabilitation Act).
442. See Aldrich v Boeing Co, 146 F3d 1265, 1270 (10th Cir 1998) ("Whether an impairment 'substantially limits' a major life activity depends on the individual and the impairment. Such determinations are not susceptible to per se rules.").