Under a bill being considered by the Washington legislature, it would become illegal for employers to refuse to hire smokers or to fire existing smokers based solely on their off-the-job smoking behavior.
This legislation comes in the wake of an increasing trend of employers adopting policies that discriminate against smokers by making off-the-job smoking a criterion for employment. It also follows the recent efforts of a prominent anti-smoking group - Action on Smoking and Health - to push for such policies both in the United States and internationally.
The concern over discrimination against smokers is of particular concern in Washington State, since a number of employers in the state have adopted policies making off-the-job smoking a criterion for rejection for employment. According to an article on a Seattle NBC affiliate website:
"Smoking isn't allowed at the Tacoma-Pierce County Health department. Light up off the job and you'll be fired. 'We basically have people sign an affidavit saying that they are smoke-free and coming on board and they will not smoke during their employment,' said Vivienne Kemphaus, Tacoma-Pierce County Health Department. ... For years, both Alaska Airlines and Avista Corporation have required applicants take a urine test that can detect a metabolite created when the body processes nicotine."
According to the proposed bill (House Bill 2614): "It is unlawful for an employer to refuse to hire or to discharge an individual, or otherwise disadvantage an individual, with respect to compensation, terms, conditions, or privileges of employment because the individual engages in the consumption of lawful tobacco products off the premises of the employer during nonworking hours, provided the individual complies with applicable laws or policies regulating consumption of lawful tobacco products on the premises of the employer during working hours."
The bill provides exceptions for two situations: (1) if off-the-job smoking interferes with a bona fide occupational job requirement; or (2) if off-the-job smoking is in conflict with the underlying mission of the employer.
The Rest of the Story
I have to admit that I have been, and remain, very reluctant to support or advocate for government intervention into employers' abilities to make their own employment decisions.
However, something has happened which has changed my mind.
Namely, it has become clear to me that there is a concerted effort within the anti-smoking movement to try to punish smokers by institutionalizing employment discrimination policies against them. As I have been highlighting for weeks, Action on Smoking and Health (ASH) is pushing for such policies throughout the United States and the world, and not a single other U.S. anti-smoking group has spoken out against such policies.
The spread of these policies threatens to make smokers second-class citizens who, solely because of a lawful private decision regarding what to do in their own homes, are unable to obtain gainful employment. It punishes children, who have no part in the decisions of their parents, by forcing their parents to become unemployed and less able to support them. It represents ugly workplace discrimination, as well as undue and dangerous intrusion into the privacy of employees.
And, as much as I hate to advocate for government intervention into employment decisions, I think that it is time for the government to step in and put an end to it.
I simply do not see anything within the tobacco control movement to suggest that there is any degree of compassion, reason, or good sense, or a willingness among those organizations which do have compassion, reason, or good sense to publicly speak out against this. And thus, I think smokers do need and deserve protection.
The legislation is carefully crafted so that it does not interfere with the ability of employers to make off-the-job smoking a condition of employment if it interferes with bona fide occupational job requirements or if it represents a conflict with the underlying mission of the organization.
Thus, the bill would not require anti-smoking organizations to hire smokers. Nor would it require employers at jobs which expose their employees to dangerous respiratory toxins to hire smokers. Thus, the legislation respects the two conditions that I think would make consideration of off-the-job smoking a valid employment criterion.
Moreover, the bill does not follow the approach of some states in making smoking equivalent to things such as sex, race, or religion in terms of preventing discrimination.
Based on what I have observed in the anti-smoking movement in the past months, both in terms of acts of commission (groups actively speaking out for employment discrimination against smokers) and acts of omission (the rest of the groups not speaking out against these policies), I think it is reasonably necessary for the government to intervene to protect the interests of smokers.
Actually, what I am advocating is not merely the protection of smokers. It is, more basically, the protection of all citizens against arbitrary employment discrimination and the protection of the basic privacy of employees to make their own decisions about what lawful behaviors to engage in within their own homes. These are basic values that transcend the issue of smoking, and I think are well worthy of government intervention.
I therefore support Washington's House Bill 2614, and hope that it will pass and set an example for other states that lack such protection for smokers (and all other lawful, off-the-job private behaviors) to follow.