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Such an effort easily could become the pretext for a

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Unformatted text preview: ons that the district court of appeal affirm the trial court judgment. It is so ordered. GRIMES, C.J., and HARDING, WELLS and ANSTEAD, JJ., concur. KOGAN, J., dissents with an opinion, in which SHAW, J., concurs. DISSENTBY: KOGAN DISSENT: KOGAN, J., dissenting. 68 As the majority itself notes, job applicants are [**12] free to return to tobacco use once hired. I believe this concession reveals the anti-smoking policy to be rather more of a speculative pretense than a rational governmental policy. Therefore I would find it unconstitutional under the right of due process. See Department of Law Enforcement v. Real Property, 588 So. 2d 957 (Fla. 1991). The privacy issue is more troublesome, to my mind. There is a "slippery-slope" problem here because, if governmental employers can inquire too extensively into off-job-site behavior, a point eventually will be reached at which the right of privacy under article I, section 23 clearly will be breached. An obvious example would be an inquiry into the lawful sexual behavior of job applicants in an effort to identify those with the "most desirable" lifestyles. Such an effort easily could become the pretext for a constitutional violation. The time has not yet fully passed, for example, when women job applicants have been questioned about their plans for procreation in an effort to eliminate those who may be absent on family leave. I cannot conceive that such an act is anything other than a violation of the right of privacy when done by a governmental unit. [**13] Health-based concerns like those expressed by the City also present a definite slippery slope to the courts. The time is fast approaching, for example, when human beings can be genetically tested so thoroughly that susceptibility to particular diseases can be identified years in advance. To my mind, any governmental effort to identify those who might eventually suffer from cancer or heart disease, for instance, itself is a violation of bodily integrity guaranteed by...
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