Many states have off-Duty conduct protections that protect an employee from partaking in legal, lawful activities. My state specifically protects employees from discriminating against tobacco use for employment so it would be an easy case.
This is true; however, where the legal system is concerned, there is quite a lot of grey area. Even set-in-stone laws can be no match for a crafty legal team, and when it comes to the persecution of tobacco, any given state will have a veritable
squad of them at hand. State of Washington = Exhibit A.
Also, I should have expounded a little bit. When I mentioned the word "cost," I didn't just mean financial. I also meant the cost in energy and time. It's no secret that lawyers have an affinity for dragging out the process, and even in the rare instance of a victory (for the "good guys"), recovering legal costs is about as easy as keeping a bowl of Molto Dolce lit during a Category 5 hurricane.
Lastly, I will say that there's no such thing as an "easy" case. For obvious red, spiky, microscopic reasons, many courts are overwhelmed with thousands of pending legal cases right now which are just getting postponed indefinitely, even quite serious ones. I was just reading earlier this week of a woman whose son was wrongfully arrested, and died in police custody. Her lawsuit is nearing the two year mark, with no resolution in sight due to the postponements. Richard Pryor once said, "You go to the courthouse looking for justice, and that's what you'll find: just us!"
Merely my two cents.