Not all workplace discrimination is unlawful. For example, employers can refuse to hire candidates who will not wear necessary safety equipment. That is discrimination. That is not unlawful discrimination. One type of employment discrimination that is not unlawful in some states is discrimination against smokers or, more usually, discrimination based on tobacco use.
We’ve written about the efforts of many employers to reduce health-care costs and increase productivity by not hiring applicants who smoke or use tobacco. (See, Health vs. Privacy: Employers Continue to Juggle Both; How Far Should Employers Go When It Comes to Employees’ Health?; Not Everyone Is Fired Up About Smoking Ban; Employer Quits Its Smoking-Penalty Policy). Last week, the N.Y. Times ran an article about the increase in this type of “discrimination” in the health-care field. Of all employers, it makes the most sense that an employer in health-care would not hire employees who elect an unhealthy lifestyle.
I have mixed feelings about these bans for a number of reasons. For example, lots of non-smokers live very unhealthy lifestyles by failing to exercise or not working to reduce high cholesterol. But smoking is, by far, a trendier target than high cholesterol. On the other hand, smoking is also more deadly. So if you are an employer who wants to promote health, it would make sense to target the one activity that has the farthest reaching negative impact. (Of course, there was a study that showed that having an inconsiderate and uncommunicative boss was more likely to suffer a heart attack than an employee who smokes or who fails to exercise. See “My Boss Is Killing Me”).
At the end of the day, though, I tend to come out on the side of a middle ground by suggesting that employers simply prohibit smoke breaks. If an employee goes through the workday with only one opportunity to spoke (i.e., at the meal break), you’ve gone a long way to reduce tobacco use. Additionally, this eases the discomfort from what is perceived as an employer’s intrusion into its employees’ personal lives.
It’s an argument that has good points on both sides and I find it interesting that the debate continues to go on, several years now since employers first reported refusing to hire employees who smoke.