Carrots and Sticks

My posting is tardy but the New York Times article titled “The Smokers’ Surcharge” appeared a day after we discussed the legality of an employer terminating all employees who smoked cigarettes. The Times article focuses on insurance-premium surcharges, not termination, noting that “[m]ore and more employers are demanding that workers who smoke, are overweight or have high cholesterol shoulder a greater share of their health care costs, a shift toward penalizing employees with unhealthy lifestyles rather than rewarding good habits.” The law encourages financial incentives to employee participation in wellness programs but some employers use other methods to modify employee behavior:

Current regulations allow companies to require workers who fail to meet specific standards to pay up to 20 percent of their insurance costs. The federal health care law raises that amount to 30 percent in 2014 and, potentially, to as much as half the cost of a policy.

When Wal-Mart Stores, the nation’s largest employer, recently sought the higher payments from some smokers, its decision was considered unusual, according to benefits experts. The amount, reaching $2,000 more than for nonsmokers, was much higher than surcharges of a few hundred dollars a year imposed by other employers on their smoking workers.

And the only way for Wal-Mart employees to avoid the surcharges was to attest that their doctor said it would be medically inadvisable or impossible to quit smoking. Other employers accept enrollment in tobacco cessation programs as an automatic waiver for surcharges.

“This is another example of where it’s not trying to create healthier options for people,” said Dan Schlademan, director of Making Change at Walmart, a union-backed campaign that is sharply critical of the company’s benefits. “It looks a lot more like cost-shifting.”

Job Discrimination Cases Tough to Win

A study published last month in the Harvard Law & Policy Review proves something I’ve stressed in classes for many years, based on anecdotal experience:  winning a federal employment discrimination claim is a long shot.  Based on data from 1979-2006 the study reports:

  • Federal employment discrimination plaintiffs won 15% of their cases, compared to the 51% win rate for other federal civil plaintiffs;
  • 12.5% of federal employment discrimination cases end in summary judgment; employers sought summary judgment in 90% of those cases.  In contrast, 3% of contract cases and 1.7% of personal-injury and property-damage cases ended in summary judgment.
  • By applying a “plausibility” standard to the pleadings Federal judges “routinely terminate employment-discrimination cases through motions to dismiss” (according to the 19-Feb Wall Street Journal article titled “Job-Discrimination Cases Tend to Fare Poorly in Federal Court”).
  • From 1999 to 2007 federal employment-discrimination cases declined by 40%.

The Journal article offered a number of reasons for the low success rate:  the difficulty of proving an employment discrimination claim “which,” the article notes, “is rately overt;” employer willingness to settle credible suits quickly; employment practices that lessen the incidence of employment discrimination; and better record-keeping that documents non-discriminatory grounds for employment termination.

Science 101

Following a discussion of employment law this week a student sent me this article: Biologist fired for beliefs, suit says. Woods Hole Oceanographic Institute fired postdoctoral researcher Nathaniel Abraham from his position in the biology lab because he believes “that the Bible presents a true account of human creation.” Abraham was hired to work on a project that “studies how aquatic animals respond to chemical contaminants by examining ‘. . . mechanisms from a comparative/evolutionary perspective,'” did not inform anyone that he does not believe the fundamental tenets of evolution underlying the research, and was fired when he disclosed this fact.

Is belief in evolution a bona fide occupational qualification for this position? Woods Hole fired him because of his religious beliefs, yet his beliefs are fundamentally incompatible with his job responsibilities. How could he even take such a job? It would be like an adherent to Christian Science–which treats illness through prayer rather than medicine–being trained as an oncologist. The article puts it this way: “‘A flight school hiring instructors wouldn’t ask whether they accepted that the earth was spherical; they would assume it. Similarly, Woods Hole would have assumed that someone hired to work in developmental biology would accept that evolution occurred. It’s part and parcel of the science these days.'”

More: Smoking and Employment

Others have picked up the story about Scott Co.’s termination of Scott Rodrigues for smoking. Legal Blog Watch mentions the story here. Jottings by an Employer’s Lawyer has a post about the story and links to Do No Evil and its 200-plus comments on the suit, to Out of the Jungle’s topical links and articles, and to Worker’s Comp Insider, which has followed this issue since 2005.

Less is More

Apropos the subject of employers and overweight employees, a reader passed along a report that since 2002 Microsoft employees have lost more than 30 tons – 61,100 pounds actually, from 2,152 people, an average of 28.4 pounds each. The employees took advantage of Microsoft’s weight management benefit program, in which the company pays for 80% of “a comprehensive, clinical weight-loss program” up to a maximum of $6,000 per employee. Since offering the benefit in 2002 Microsoft claims it has realized a one-to-one return on the expense, from lower drug and health care costs. All employees who are obese or clinically overweight can take advantage of the benefit which includes personal training sessions, counseling, support groups, and medical supervision. The report cites Microsoft CEO Steve Ballmer’s 50-pound weight loss in 2002 as an inspiration for the benefit, but does not say whether Ballmer’s famous “monkey dance” is part of the weight-loss regimen. (Thanks, WSHustler)

Smoking Ban, Weight Tax, and Bias

Two news items bring to mind themes addressed in At-Will At Work, a recent post about Scotts Co.’s termination of an employee for smoking. First, the global smoking zone continues to shrink. Germany announced last Friday that it intends to ban smoking in restaurants, discos, schools, and public buildings. The ban would not affect smoking in pubs, bars, or beer tents unlike laws more-restrictive anti-smoking laws enacted recently by Britain, France, Ireland, and Italy. Good news for those who like breathing cleaner air, although I’m puzzled by one policy choice: why ban smoking in discos and allow it in bars?

The second is prompted by comments to the cited post that also arose in class discussion, namely that employers’ could target obesity using the same rationales that support terminations for non-smoking. In an article titled Extra Weight, Higher Costs The New York Times reported on Saturday that “being fact costs money – tens of thousands of dollars over a lifetime.” Factors imposing a “weight tax,” if you will, on obese people include higher life insurance premiums and medical expenses, lower incomes, and less accumulation of wealth. In discussing weight discrimination in employment the article states: “[S]ome employers do not want to be burdened with higher health insurance costs. Other times it is a matter of appearance or a belief that ‘people of size’ . . . are lazy, weak-willed or considered too unattractive to interact with customers.” The article notes that Michigan – ironically the home of Weyco, a company mentioned in At-Will At Work for its refusal to employ employees who smoke – is the only state that outlaws weight discrimination. (The connection between smoking cessation and weight gain means there is a wise-ass remark to be mined from these facts. I’ll leave the spade work to others.)

The sidebar to the online version of second article contains a link to Implicit Association Test, a Harvard-based demonstration site for “a method the demonstrates the conscious-unconscious divergences” in our beliefs. Before taking one of the tests the user must click on on the following warning: “I am aware of the possibility of encountering interpretations of my IAT test performance with which I may not agree. Knowing this, I wish to proceed.” Thinking “I can get my carefully-constructed self image dismantled and thrown back in my face. How fun!” I clicked through to the test menu. It offers tests for unconscious reactions on race, religion, disability, gender and science, sexuality, weapons, and other matters. I took the Weight (‘Fat – Thin’) Implicit Association Test. The test itself is somewhat maddening. After responding to a brief questionnaire one sits at the keyboard and makes binary choices by pressing the e or i keys in response to words and images flashed on the screen. First come a series of faces which one classifies as “fat” or “thin.” Next come a series of words which one classifies as “good” (joy, laughter) or “bad” (evil, agony). The words and images are then mixed in various ways that require one to consider which key to press, e.g. for some sequences one must press i for “bad” words and “thin” faces, for another one must press i for “”good” words and “thin” faces. Through the miracle of psychological testing the results are calibrated and the verdict rendered: you are biased, or not, based on weight. The entire test takes about ten minutes, if you care to run the risk of self-knowledge.

By the way, the test told me I do not make negative associations based on weight. Whether that is true or a consequence of my keen self-awareness while taking the test will require further testing to determine.

Mark Landler, Germany to Restrict Smoking, Joining Other Nations in Europe, The New York Times, 3-Dec-06; Damon Darlin, Extra Weight, Higher Costs, New York Times, 2-Dec-06