Wednesday, November 29, 2006

Can an employer fire or refuse to hire smokers?

Another local development is this Globe story about Scott's lawncare firing an employee for smoking off the job. The former employee has sued. I am a non-smoker who is very grateful for the societal changes that reduce my exposure to second-hand smoke. But even I found it pretty disturbing that an employer would think it right to control employees' private behavior. It leads to all sorts of disturbing scenarios that have been raised as testing for various diseases and genetic pre-disposition for disease became possible.
I found this blog posting tracking announcements of Scotts and other employers that they will no longer employ smokers. North Carolina's Atlantic Beach also decided not to hire smokers link. Here is a CBS News story on employers regulating employees' private lives, titled "Whose Life is it anyway?"

And this announcement that refusing to hire smokers is NOT discrimination in the EU. This website discusses in considerable detail the author's legal analysis of including smokers as a group under "negligent hiring," as being dangerous to other employees. Includes a bibliography and lists of cases on hiring/firing, dangerous cigarettes, and more. Attributed to The Crime Prevention Group link which states as its mission:

# three functions, providing (1) background information on smoking and laws,
# (2) links to more detailed information, and
# (3) letter writing samples for you to take action to promote safe cigarettes by contacting government officials with authority to accomplish that goal.

The MSN money website also mentions an employer firing employees after instituting a no-smoking-employees policy link. This story links to WorkRights, where a search for smoking turns up a number of stories of employers firing, testing, and refusing to hire, smokers here.

The issue is sometimes called "lifestyle discrimination." Under that rubric, you can locate reports from

the ACLU here

Stephen Sugarman paper at U.C. Berkeley e-repository link (dated 6/27/02)

You're Not The Boss Of Me: A Call For Federal Lifestyle Discrimination Legislation, 74 The George Washington Law Review 553 (April 2006).

National Workrights Legislative Brief link Includes model statute, list of states with relevant legislation, and a brief bibliography, which only dates 1980's - 1991.

Washington Post article dated 10/06 on workplace discrimination link

Ungaretti and Harris law firm report on Illinois law prohibiting "lifestyle discrimination." link

Inside Counsel's analysis of how the ADA may prevent lifestyle discrimination here

Seattle Times story from 2004 on employers' refusing to hire smokers, which lists employers I did not see noted elsewhere link

Jackson-Lewis Connecticut Employer article on lifestyle discrimination from 2005 link

Bender's Labor & Employment Bulletin, June 2006 on the legal implications of "Wellness Programs." link through Jackson-Lewis.

Article from American City & County on how wellness programs reduce health care costs (dated March 1, 2005) link

Image courtesy of


Jacqueline Cantwell said...

Thank you for the post and references. In the US< Employers can discriminate on any grounds other than race, sex, or religion. Employers prefer to hire non-smokers because non-smokers do not take smoking breaks and tend to be more compliant than smokers. Studies found smokers on a whole to be risk-takers, aggressive, and defiant.

Smoking is still legal, which is why this case is interesting, but a long-shot. Illegal drug use, even outside of working hours, can get you fired before you get jailed. Employers have been testing for use of illegal drugs for a long time now. So if you inhale on the weekend, you can get fired if asked to pee in a cup Monday. Check BNA Labor Relations Reporter. The issue is also indexed under privacy in the workplace.

What is even more interesting is another question: what level of emotional involvement can an employer demand to the values of a company? Employers are very big on loyalty and adherence to mission statements that read like new age brochures. As jobs become less defined by skill and competence and more defined by attitude, employers are hiring more for personality and manner.

Employers want to hire people who "fit in." That excludes reserved types who don't emote appropriately, aggressive shop stewards, and people more competent than the supervisor.

Jacqueline Cantwell said...

Another employer interference in private lives that I forgot to include was the prohibition of dating co-workers. Grown people should be able to enjoy each other's company. Think of all the wonderful movie comedies where attraction kindles nimble thought, wit, and great acts.

Anonymous said...

Wow, Jackie, your experience outside libraries really shows. We are sometimes so insulated from the employment experience of so many people. I am grateful for the insulation, but realize that there is a lot I don't know about peoples' experiences at bad or maybe just tougher employers!