It has already been litigated and the smoker lost.
It turns out that employers have an interest in hiring people who have fewer sick days, lower insurance costs, and no smoke breaks. Smoking stinks, the smell affects people with allergies, and it a major turn off for many customers and clients.
Smoking is a voluntary choice, and no one owes anyone else a job when they make choices that will almost certainly negatively affect the employer. I quit nearly 12 years ago, and would not have ever thought to demand to be put on equal footing with a non-smoker in the job market.
http://usatoday30.usatoday.com/money/industries/health/story/2012-01-03/health-care-jobs-no-smoking/52394782/1
http://bizactions.com/pop_artsam.cfm?id=1091,751&type=2
Well, that’s the only time in Maryland’s history that a court came down on the side of the employer in recent times; I am sure just to continue the liberal states war on tobacco. The hypocrisy is that this same argument can be made for other legal practices such as drinking alcohol or other risky behaviors, which I am sure that Maryland will ignore.