Tuesday, April 20, 2010

Anti-Smoking Argument in Support of Workplace Smoker Bans Destroys Argument for Workplace Smoking Bans

An article in the Pocono Record highlights a central argument in the anti-smoking movement's support for workplace smoker bans: that individuals do not have a right to employment in any particular workplace, so it is acceptable for an employer to discriminate against them.

The article discusses the new policy announced by St. Luke's Hospital and Health System in Pennsylvania, which will no longer hire smokers as of this May. According to the article, the justification for the new policy is that it is intended to promote a healthier workplace.

"The hospital's news release also says Pennsylvania is one of 20 states where anti-nicotine hiring policies are legal, but there may be a case to be made with regard to privacy laws, a Bethlehem attorney said Tuesday. John Harrison, a labor law specialist with Broughal & DeVito, said, "I would not be surprised if you see someone challenging this statute who is a smoker and doesn't get a job and says this is an invasion of his privacy," Harrison said. "That what somebody does on their own time at home is considered your own time."

"But Gary Asteak, an Easton lawyer, said he doesn't believe there's a right-to-privacy case to be made about St. Luke's new policy. "Not any more than drugs. They can drug test people," he said. "I think they have every bit the right to decide who they want to employ, and I don't believe an individual has the right to a job at that hospital. They have the right to work, but not necessarily at that hospital."

The Rest of the Story

As this article makes clear, a central argument necessary to defend smoker-free workplace policies is that there is no right of an individual to pursue employment at a particular workplace. While smokers have a right to work, they don't have a right to seek employment at any specific workplace. Thus, it is acceptable for employers to discriminate against smokers.

Without this argument, the justification for smoker-free workplaces disappears. Because if individuals have a right to seek employment at any workplace when they are qualified for such employment, then it violates individual rights to deny employment to someone on categorical grounds that have nothing to do with their job qualifications.

Here is the problem, and the rest of the story: If one accepts the argument that an individual has no right to seek employment at any particular workplace, then it becomes acceptable to allow employers to hire only smokers and thus to obviate the need for workplace smoking bans if cases in which the employer agrees not to hire nonsmokers (or to only hire nonsmokers who agree to be exposed to tobacco smoke).

In other words, the justification for banning smokers in the workplace completely invalidates the argument for banning smoking in all workplaces.

If it is true that no individual has a right to pursue employment at a particular workplace at which they are qualified for employment, then it is also true that there is no violation of individual rights if you tell nonsmokers that their services are not wanted at restaurants that allow smoking.

Let me put it this way to illustrate what I'm saying: Suppose I approached an anti-smoking group and made the following argument. There is no need to ban smoking in all restaurants. We simply need to ban smoking in some restaurants. We can allow restaurants to permit smoking as long as no one who works there is a nonsmoker. Why not simply amend smoke-free laws to allow certain establishments to allow smoking, under the condition that they hire only smokers or nonsmokers who agree to be exposed to secondhand smoke at work?

I can argue against such a proposal, because I believe that all individuals have the right to seek employment at any workplace for which they are qualified to do the work. Thus, it would violate individual rights to tell nonsmokers that they are ineligible to apply for employment at a particular restaurant, or that they are only eligible for employment if they agree to be exposed to secondhand smoke. I believe that either of those policies would violate individual rights, and is therefore unacceptable and inappropriate.

However, anti-smoking groups and advocates who are defending smoker-free workplaces cannot make the same argument. Their support for such policies relies upon the contention that there is no individual right to work in a particular workplace if one is otherwise qualified for employment. To paraphrase Asteak above, one would have to argue that individuals have the right to work, but not at any particular restaurant. It's fine to make that argument, but if you do so, you have just conceded that there is no need for 100% smoke-free workplace laws.

Thus, the rest of the story is that in their zeal to support the non-hiring or even firing of smokers on categorical grounds, I believe anti-smoking groups have undermined and perhaps destroyed their own arguments in support of workplace smoking bans.

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