Thursday, January 19, 2006

Anti-Smoking Group Criticizes CBS Piece on Employment Discrimination Against Smokers Before it Airs

In a press release issued yesterday before the airing of a CBS piece on employment discrimination against smokers, Action on Smoking and Health (ASH), a Washington, D.C.-based anti-smoking group, criticized the piece for what it might say.

According to ASH's press release: "Tonight's [1/18] CBS Evening News will reportedly include a piece on so-called 'smokers' rights,' but it may be misleading and/or inaccurate for many reasons. It reportedly will imply that many states have laws which protect people from employment discrimination if they smoke, even off the job and on their own time. But any such suggestion is inaccurate for several reasons, says law professor John Banzhaf of Action on Smoking and Health (ASH). First, many laws, even as written, provide little if any protection. ... Second, even in states with such laws, companies may [as some do] prohibit employees from having any detectable odor of tobacco smoke about them ... This requirement may effectively prevent people who smoke off the job site from working there, even if abstaining from tobacco use isn't made an express “condition of employment.” ... Finally, it should be noted that, while a significant number of states have so-called smokers' rights statutes, it appears that they are rarely if ever enforced. ... On the other hand, there are a growing number of surveys and anecdotal evidence showing more and more companies refusing to hire smokers, charging them more for health insurance etc.

Prof. Banzhaf, who has advocated and litigated for the right of companies to refuse to hire smokers or to charge them more for health insurance, says he also fears that CBS might present a one-sided piece dramatizing the impact of such policies on smokers, and omitting many of the reasons for such policies. ... Laws which prohibit employers from basing hiring decisions on legal conduct employees engage in on their own time (as some laws read) could force animal rights organizations to hire hunters, womens' rights groups to hire strip-show aficionados, and antismoking organizations to hire smokers.

CBS also may fail to note that many major media organizations will fire people who engage in certain lawful activities off the job if the activities may have an impact on the company. For example, most media companies will fire employees who exercise their right of free speech
and association by marching in parades related to issues like abortion and gun control, or making racist statements or even attending private events which are openly racist."

The Rest of the Story

Before getting to the substance of ASH's argument and what the group is trying to do here, I must first note that it seems a bit odd and perhaps inappropriate to issue a criticism of a news story before the story even appears, based solely on what ASH suspects the story might say.

I hope that my readers will not criticize me now for what I might say tomorrow. ASH could have at least had the decency to wait until after the story aired before criticizing it.

Now to the substance of the argument.

ASH's argument fails, I think, because it is completely missing the most important issue involved: that these employment policies are discriminatory and intrusive not because they regulate smoking, but because they regulate lawful behavior in the private home that does not directly affect job performance. What part of "Smoking Does Not Directly Affect Job Performance" does ASH not understand?

The analogies to forcing "animal rights organizations to hire hunters, womens' rights groups to hire strip-show aficionados, and antismoking organizations to hire smokers" is not valid because each of these are examples where the behavior in question directly affects the abilities of an employee to perform the duties of the job and conflicts with the basic mission of the employer. The laws for which I have expressed support contain a specific exemption that allows off-the-job behavior to be included as a condition of employment if it does directly affect job performance or relates directly to the mission of the company.

The analogy to media companies not allowing reporters to participate in political rallies or attend racist events is also invalid, for the same reason. These behaviors directly affect job performance, because how can a reporter cover issues in a neutral and appropriate manner if the individual is active in certain types of political or racist events?

But the most disturbing aspect of ASH's press release is not its flawed reasoning and the fact that it is missing the precise point of what makes not hiring smokers a form of intolerable employment discrimination, but that it is clear that ASH is making a concerted effort to promote this type of discrimination.

I get the sense that ASH is almost gloating in the proliferation of these discriminatory policies against smokers. And ASH is distorting the issue in order to inappropriately try to convince the public that these policies are appropriate and should be widely adopted. To be honest, I can feel the "hate" of smokers emanating form the press release.

Yesterday, I criticized anti-smoking organizations (in the U.S.) for not speaking out against employment discrimination against smokers. But this is way beyond a failure to speak out. This is actually an anti-smoking organization which is promoting discrimination against smokers, invasion into the privacy of smokers' lives, bigotry, and in a very real sense, hate of smokers and intolerance towards this large segment of the population -- a group, I might add that ASH itself has admitted has been addicted to nicotine by the evil tobacco industry.

How can ASH then turn its back on these victims of tobacco industry manipulation and marketing?

In my view, there is no room for discrimination, bigotry, hate, and intolerance in the tobacco control movement.

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