Largely due to concern over the effect of smoking on its health insurance costs, an employer prohibits its employees from using tobacco products at any time and conducts random tests for nicotine. An employee was hired contingent on successful completion of a nicotine screening. The employee was a smoker, although he was attempting to break the habit and often chewed nicotine gum to quell his desire for cigarettes. He was allowed to start on the job but was terminated when his nicotine test came back positive. At the time of the termination, he was in a probationary period and was not yet a participant in the company’s health plan. Massachusetts, the state in which the employee worked, does not have a state law prohibiting discrimination against users of tobacco products. On what other grounds might legal action be taken against this employer? Would the employee likely succeed?