For years I’ve posed this scenario to Intro to Law students: can an employer refuse to hire a new employee or terminate a current employee because they smoke cigarettes? Some students believe employers should be able to hire or fire anyone they want for whatever reason they want. The discrimination and wrongful discharge cases they generate will employ generations of lawyers and HR personnel. Most are appalled with the concept of employers having the right to fire someone for engaging in lawful out-of-work activities. A few see the nexus behind smoking and higher health-care costs. Virtually all assume it’s another far-fetched hypothetical, until I relate actual examples of smokers being rejected for employment or fired just because they are smokers. I make the employers’ arguments until they see the cost-benefit logic, and then I ask if employers can fire you because you smoke cigarettes, can they fire you because you engage in high-risk sports? Eat too much junk food? Don’t eat enough spinach? Are obese? Where does it stop? I promise that such lifestyle discrimination will become more prevalent. (Indeed, a colleague teaches an employment-law seminar titled Lifestyle Discrimination.) My goal is to unsettle them. It works.
I make this promise every semester, yet haven’t seen many cases that back me up. And that explains why I was happy to see the recent NYTimes article Hospitals Shift Smoking Bans to Smoker Bans. It begins–
More hospitals and medical businesses in many states are adopting strict policies that make smoking a reason to turn away job applicants, saying they want to increase worker productivity, reduce health care costs and encourage healthier living. . . . The new rules essentially treat cigarettes like an illegal narcotic. Applications now explicitly warn of “tobacco-free hiring,” job seekers must submit to urine tests for nicotine and new employees caught smoking face termination. This shift — from smoke-free to smoker-free workplaces — has prompted sharp debate, even among anti-tobacco groups, over whether the policies establish a troubling precedent of employers intruding into private lives to ban a habit that is legal.
The article focuses on health-care employers, where non-smoking rules may have most appeal, but the principles behind a ban on employing smokers readily support bans for other reasons. I can argue persuasively in favor of such bans, yet agree they establish dangerous precedents. First they came for the smokers, and I didn’t speak out because I wasn’t a smoker . . . (with apologies to Martin Niemöller)