Employees in casinos and other gaming venues often face greater exposure to secondhand smoke than employees in other workplaces. In fact, studies have shown that secondhand smoke exposure levels can be 2.4 to 18.5 times higher in casinos than in offices and up to 11.7 times higher than in restaurants. Despite this high level of exposure to smoke, and despite the U.S. Surgeon General’s finding that secondhand smoke exposure is toxic and causes cancer, heart disease, asthma and sudden infant death syndrome, many casinos and other gambling venues are shielded from smoke-free laws.

The National Council of Legislators from Gaming States approved a landmark resolution in January 2009 encouraging state lawmakers to ensure that casinos are smoke-free workplaces. Despite this, some state smoke-free laws have blanket exemptions for casinos, and others permit casinos to designate smoking areas. Also, because of sovereign immunity, tribal casinos operated by recognized Native American tribes on tribal lands are exempt from civil smoke-free laws. As smoke-free workplace laws proliferate across the United States, so does the need to ensure that smoke-free policies extend to state-regulated and tribal gaming establishments as well.

Legal Issues

Resistance to smoke-free casinos comes largely from the gaming and hospitality industries, or tribal governments. Common legal challenges to smoke-free laws include preemption and regulatory grounds and constitutional grounds (such as equal protection, due process or takings arguments). Since gaming casinos on reservations operate under tribal, rather than state authority, smoke-free policies are by the Native American communities themselves.

Casino employees injured by exposure to secondhand smoke in the workplace can file lawsuits under several causes of action, including workers compensation and the Americans with Disabilities Act, as well as common law theories, such as negligence. Employees on riverboat casinos may qualify for protection under the federal Jones Act, enacted in 1920 to protect sailors from employer negligence. The Jones Act applies the standard of liability found in the Federal Employer Liability Act (FELA), where the employer is liable “if employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.”

Individual casino employees may also seek certification as a class and consolidate similar claims into one single lawsuit. Class actions must be large enough that uniting individual claims in a single lawsuit is impracticable, the questions of law and fact must be common to the class of plaintiffs, and the claims must be typical of all members of the class.

Select Research

Key Resources

  • Secondhand Smoke and Casinos, Micah Berman & Caris Post, Tobacco Control Legal Consortium law synopsis, 2007 (1.42 Mb). An overview of the benefits of establishing smoke-free environments in casinos, approaches for creating smoke-free casinos, and the potential legal liability for casinos that expose their employees and others to secondhand smoke.
  • Smoke-free Gaming Laws Map. Americans for Nonsmokers’ Rights. Regularly updated map of smoke-free gaming establishments, including commercial casinos, race tracks and racinos, jai alai, bingo and charitable gaming, card clubs, video lottery terminals, pari-mutuel gaming, keno, and pull tab establishments.

Select Litigation

  • Coalition for Equal Rights, Inc. v. Bill Owens, 517 F.3d 1195 (10th Cir. 2008) (upholding Colorado Clean Indoor Air Act, which plaintiffs had challenged on constitutional grounds, arguing the Act violates equal protection by allowing smoking in licensed casinos and similar establishments).
  • Metro Louisville Hospitality Coalition, Inc. v. Louisville/Jefferson County, Case No. 06-CI-10179 (D.Ky. 2006) (ruling that Louisville/Jefferson County smoke-free ordinance violates equal protection by exempting licensed horse-racing facilities, and striking exemption).
  • New Jersey Hospitality Coalition for Fairness v. State of New Jersey, Civil Action No. 06-CV-1025 (D.N.J. 2006) (upholding New Jersey Smoke-free Air Act, which plaintiffs had challenged on constitutional grounds, arguing that Act unfairly discriminates against plaintiff restaurants in favor of casinos).
  • Badillo v. American Tobacco, Inc., 202 F.R.D. 261 (D. Nev. 2001) (denying class certification of up to 45,000 casino dealers working in Nevada, along with their estates and family members).
  • Mullen v. Treasure Chest Casino, 186 F.3d 620 (5th Cir. 1999) (upholding a class certification to employees on a riverboat casino who had been injured by secondhand smoke exposure, resulting in a $2.25 million settlement in June 2002).

Select Statewide Smoke-free Laws that Cover Casinos