A point-counterpoint series of articles published in June 2008 in the William Mitchell Law Review debates the question of whether it is appropriate for employers to refuse to hire smokers.
Writing in opposition to these policies, Lewis Maltby - the founder and president of the National Workrights Institute - argues that these discriminatory policies violate employees' autonomy and privacy.
Maltby writes: "The Administrative Management Society has estimated that six percent of all employers in the United States discriminate against off-duty smokers. These employers argue that smokers incur higher medical costs that adversely affect profitability. ... But smoking is not the only behavior that increases medical costs. Alcohol isn’t good for you. Neither is junk food, red meat, too much coffee, lack of exercise, or lack of sleep. Many forms of recreation have medical risks, including skiing, scuba diving, and riding motorcycles. Getting to work by bicycle may be good exercise, but it increases the risk of being hurt in a traffic accident. Even your sex life has health care cost implications. People with multiple sexual partners have a greater risk of acquiring STDs than those who are monogamous. If it is acceptable for employers to ban off-duty smoking because it increases costs, it is equally acceptable for employers to control all of these other types of behavior. ... If employers are permitted to control private behavior when it is related to health, virtually every aspect of our private lives is subject to employer control."
Maltby concludes: "Employment decisions should be based on how well you do your job, not on your private life. Most successful companies operate on this principle. There is no reason all companies shouldn’t follow it."
He recommends the enactment of state statutes that would prohibit companies from making employment decisions based on lawful, off-the-job behaviors that are not bona fide job qualifications. And he points out that while anti-smoking groups have opposed this legislation based on the premise that smoking should not be specified as a protected activity, they have also opposed laws in which smoking is not even mentioned: "Legislation has been enacted in most states prohibiting companies from terminating employees based on off-duty smoking. Such laws do not expose employees to second-hand smoke—they simply protect peoples’ right to behave as they want in their own home. Employers can still restrict or ban tobacco use on company property. Anti-smoking groups consistently and vigorously opposed the enactment of these laws. When challenged, they claimed that such laws give undeserved special protection to smokers. But when bills were introduced protecting all forms of legal off-duty conduct, the anti-smoking establishment opposed them too."
Writing in support of these policies, Micah Berman and Rob Crane - both of whom are tobacco control advocates - argue that the employee privacy concerns are not valid because smokers have withdrawal symptoms that reduce productivity.
They write: "Even though there is no legal objection to tobacco-free hiring policies, many people strongly believe that off-duty conduct—even if dangerous or unhealthy—is simply none of an employer’s business. This argument would be more convincing if not for the fact that employees, as we have explained, bring their nicotine addiction to work. Their withdrawal symptoms in the workplace reduce productivity and impose substantial costs on their employers and on other employees."
They also respond to the privacy concern as follows: "the argument that employers are running roughshod over employees’ privacy rights is less convincing where—as in the case of Scotts and Weyco—the employer is willing to provide all the cessation assistance necessary to help the employee break his or her nicotine addiction. Indeed, the CEO of Scotts said that the company will not fire employees who are actively trying to quit smoking, even if it takes years of effort."
The Rest of the Story
Neither of Berman and Crane's arguments in response to the privacy concerns are compelling.
First, they provide no evidence that all smokers are less productive in the workplace because they are suffering withdrawal symptoms that affect their performance. Although it may not have occurred to these authors, everyone is different and so are smokers. The response to short-term nicotine withdrawal and its effects are not the same in every smoker and do not necessarily translate into decreased productivity. Smokers have many different patterns of smoking and some do not smoke during the workday anyway. Others are able to work as productively or more productively than their nonsmoking counterparts. The argument simply doesn't hold water and even if it is true that some smokers suffer withdrawal symptoms that affect their performance, that is no justification for refusing to hire all smokers.
This type of reasoning is in fact quite dangerous. It is precisely the kind of reasoning that has in many cases led to intolerable forms of racism, sexism, and other forms of discrimination in the workplace. It needs to be rejected outright.
Second, Berman and Crane defend smoker-free workplace policies against employee privacy concerns by arguing that employers will provide all the smoking cessation resources necessary and will not fire employees if they are making sincere efforts to quit smoking. However, this argument completely destroys their case. After all, they argue that smoker-free workplace policies are necessary specifically because smokers are costing more money in health care expenditures. Thus, it should not matter whether the smoker is making a sincere effort to quit or not. If he or she is smoking, he is costing more money. If the primary concern is indeed whether the employee is trying to quit, then the rationale for the policy is not financial, it is purely moral. Smoking cannot be tolerated but it is acceptable as long as the employee is making a sincere effort to quit. In other words, what the authors are revealing is their real attitude: that the problem is smokers who enjoy smoking and want to continue doing so.
This is, in other words, all about lifestyle disapproval when it really comes down to it. Berman and Crane so readily dismiss the financial justification for these policies when push comes to shove. What underlies their support for these policies, ultimately, appears to be a disdain for the smoker -- or at least for the smoker who doesn't want to quit smoking.
I find it very instructive and revealing to actually take the time to read the justification provided by anti-smoking advocates for smoker-free workplace policies and their defense against arguments made in opposition to these policies. When pushed, it becomes apparent that the issue for them really comes down to an intolerance or disapproval for the lifestyle decision of the smoker.
This is also why anti-smoking advocates so quickly turn away from the argument that these policies would also justify refusing to hire overweight people or people who are not physically active or in poor shape. For these advocates, those behaviors - though unhealthy - are not intolerable or distasteful. They are just unhealthy. There is no moral character issue with them. But not so with smoking. It is not just an unhealthy behavior. It is a defect in moral character. And that is why it is intolerable.
The rest of the story is that when you really get down to the bottom of this debate, the support of anti-smoking groups for smoker-free workplace policies really comes down to intolerance of smokers and distaste for the lifestyle decision to be a smoker. Being obese is also unhealthy and leads to arguably greater health care costs for the employer, but it is not a sign of moral depravity. Thus, these advocates are not calling for employers to refuse to hire obese individuals as well. Only smoking is to be targeted because the smoker is an individual with a moral defect that needs to be repaired.
As long as the smoker desires to quit, then that moral defect is reparable and the smoker can once again be tolerated in the workforce. But a smoker who doesn't desire to quit or who doesn't make a sincere effort to do so is irredeemably defective and we can justify removing that person from the workforce.