An Updated View: Should Smokers be a Protected Category?

Is not hiring a smoker an illegal act of discrimination?
Is not hiring a smoker an illegal act of discrimination?

In April 2013 I first wrote this post which appears below, though now with revisions. The reason for this revised version is found in an article by legal writer and attorney Tiffany Robertson of WeComply. In her article she asked the question Is Refusing to Hire Smokers Workplace Discrimination?
Robertson points out that the ACLU feels that discriminating against smokers is indeed workplace discrimination and, according to them, has no foundation in science. They site numbers that show that companies save no money, that productivity is not lowered, and smokers have no greater rates of absenteeism. They feel it is a person’s right to engage in risky behavior and that right should not be infringed on by an employer.
Robertson points out that refusing to hire smokers may still nudge up against discrimination laws. She points out that while smoking is not federally protected, if an individual has lung disease or emphysema from smoking they may be protected by the ADAAA. The ACLU and Robertson are not the first to raise the question. An article on the Freakonomics blog site two years ago raised the question. With that update here is my post from about two years ago.

From April 2013

I am writing a contrarian opinion to my own personal point of view. I personally think that employers should be allowed to refuse to hire smokers. I think businesses benefit in several ways from not having smokers on their payrolls in terms of healthcare costs, increased productivity and improved employee relations. But this article, Is It Unethical to Not Hire Smokers? on the Freakonomics blog site, made me think about the implications. I asked myself “should smokers be a protected category” that is protected by Title VII, or state law, from discrimination in the workplace?

Some facts

According to Stephen J. Dubnar 29 states do have prohibitions against discriminating against smokers and 65% of Americans think it is unethical. Yet many companies, arguing healthcare reasons have policies in place that state that smokers are not welcome in their workforce. Dubnar looked at other numbers and discovered the following:

  • 42% of American Indian or Alaska Native adults smoke,
  • In adults with less than a high school education, 32% are smokers; among college graduates, smoking rates are just over 13%
  • More than 36% of Americans living below the federal poverty line are smokers, as compared with 22.5% of those with incomes above that level.
  • Among the unemployed the smoking rate is 48% versus 22% in the employed.
  • My research showed that despite their lower exposure African American men are 34 percent more likely than white men to develop lung cancer. Black women tend to smoke less than white women but the two groups have similar lung cancer rates.

Adverse impact

These numbers indicate that by having a hiring ban on smokers we actually may be intersecting with other protected category protections. Is this ban having an adverse impact on already protected groups? Someone may want to run the numbers. Has anyone? (Updated note: perhaps the ACLU has.)

Are smokers more of a burden?

I think the reason that smokers receive this attention is that we perceive that smoking is a behavior habit that can easily be changed. Subsequently employers feel justified in saying “Control your personal habits and you can go to work for us. We don’t want to pay for your habit in lowered productivity and increased healthcare costs.” But the same thing could be said of other personal habits. Americans are notoriously obese, the result of the habits of overeating and not engaging in sufficient exercise. Should we have a ban on hiring fat people? (Many will say we do already) Some people engage in risky sports activities that could result in injuries that affect healthcare costs and their personal productivity. Do we ban people from engaging in this behavior?
Of course you could go on with this type of analysis on a number of areas. Most of us would not have policies controlling people’s behavior to that extent. Certainly this would conjure up pictures of dismal futuristic movies such as the society pictured in The Demolition Man. (Where healthy food is from Taco Bell)

What is the answer?

Despite the fact that I grew up with a chain-smoking father and saw what a terrible, addictive habit smoking is I am not sure I am ready to change my opinion on banning smokers at work. Unlike eating or exercising to excess, smoking at work is intrusive to other employees. Because of the addictive properties smokers take more frequent breaks to feed the habit. Perhaps nicotine addiction will get added to the list of disabilities under the ADA.
I am not sure that I have a ready answer to this dilemma. I will continue to advise companies that if they want to avoid smokers to do so, as long as it is legal in their state. But I am not sure that is the best answer.
What about you? What have your companies done in regards to smoking? What policies do you have in place to deal with this issue? I would especially like to hear from people in the 29 states that prohibit banning smokers.
Despite the view of the ACLU and the possible infringement on some ADA situations I still vote that employers should have some rights in making the decision to not hire a smoker. However, you need to be aware that no state requires that you allow smoking in the workplace and you can hold smokers to the same standards of attendance and productivity that non-smokers are held to.

Leave a Comment

Pin It on Pinterest