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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.
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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- Spring '08