I work at a company with an anti-smoking CEO. It got to me wondering if he could simply make it a corporate policy to hire only non-smokers. Would it be legal to do so?
Note that I’m not asking if it would be smart to do so (I’m a smoker, so it clearly wouldn’t be in my best interest), just if he could do it and get away with it. While it would obviously be discriminatory, I don’t think that smokers are a “protected class”, so I’m not sure what recourse anybody would have.
Well, as a smoker, you’re a nicotine addict, so not hiring you because of your addition… Hmmm… americans with disabilities act?
My answer is YES: he is the boss and, as you said, smokers are not listed in any “discriminated” category (religion, race, sex, etc.). Neither are readheads or people with blue eyes. So, can these two categories be discriminated against? Or divorcees? Or married people? Single mothers? And so on.
Addiction aspect of it is interesting. Addiction is a disease. Can it be a disability as defined in the ADA? Should your boss (and all other bosses) hire alcoholics and drug addicts?
I am sure, our resident lawyers will jump in.
I wondered about the ADA angle myself. I, personally, have some class and couldn’t go that route, but I’m sure there are many that would…
Morgan, what about redheads?
If you business implies conveyor belt assembly and a person has no hands, is he protected by the ADA? If a radioannouncer fired because he began to statter due to a brain disorder, can he be fired?
My 2 cents:
I seem to recall seeing many job ads in the paper that specified “non-smokers”, and I would think that if they are advertising for non-smokers, it must be legal… or someone would have sued by now!
yes, yes, and yes. It’s illegal to ask about your marital or family status in an interview.
“Nicotine addiction” is probably not a recognized disability under the ADA. (This is less of an absolute pronouncement and more of an educated guess, since I don’t have my reference materials right in front of me to verify it.) Primarly, a nicotine addiction would not “substantially limit a major life activity.” That is, being addicted to nicotine does not materially impair your ability to walk, speak, think, eat, etc. Other consequences of smoking, like chronic lung disease, might qualify as disabilities but the average smoker would not be able to claim ADA protection simply because he or she smokes.
As to the OP, the answer, as with all legal questions, is “it depends.” In New York State, state law prohibits employers from discriminating against employees on the basis of “legal, off-duty recreational activities,” including smoking. In fact, the law was specifically passed to prevent employers from discriminating against smokers on the grounds that they raised health insurance costs. Consequently, in New York, an employer could not make it corporate policy to not hire smokers.
Other states have similar laws, but I can’t think of which ones off the top of my head. There is no federal prohibition I could think of that would prevent an employer from refusing to hire smokers, however, so it would be legal to do in some states, but not in others.
My wag is that it would be illegal. Mind you, we are talking about a stated policy of excluding people based on something thats legal. Just because they smoke doesn’t mean they are addicts. Just because someone drinks doesn’t make them alcaholics.
There is a difference between advertising for someone with personality traits(non-smoking) and not hiring someone because of them.
rmorgan, what country are you talking about?
In the USA, no, you can’t use ADA for smoking. No smoking is to protect the other workers & they can hire based on that.
Do you think Ted Bundy qualifies for ADA? Of course not, they don’t have to accept him because they want to protect the other workers.
Spooje, clarification:
“Social drinking”, however defined (1 drink/wk, etc.) is not an addiction. Alcoholism is. Smoking is. Alcoholics and smokers cannot stop what they are doing. Look under “addiction”, there are other differences.
“Non-smoking” is not a “personality trait”. Your entire last sentence does not make any sense. What are you trying to say? I am trying to understand, come back.
It’s an interesting thread. I asked some questions which were not in the OP. They remain ananswered. Should I start a separate thread? Mods?
Yes, but everyone who smokes is not an addict. There are some casual, occaisional smokers. They are not the norm, but they exist.
But, you’re right. ‘Personality trait’ was a poor choice of words’ Lets use ‘legal personal habit’.
The ADA states that companies can’t discriminate against individuals with a disability who, with or without reasonable accommodation, can perform the essesntial functions of the employment position that such individual holds or desires.
Smoking has become an issue in discrimination and privacy suits because generally, we don’t want employers hiring people based upon who they think will end up costing their insurance company the least amount of money in insurance claims.
Back to disability law. There are 3 different ways someone can qualify as having a disability under the ADA:
a physical or mental impairment that substantially limits one or more major life activities of such individual;
a record of such impairment
being regarded as having such an impairment.
If a smoking addiction could qualify as one of these, it might fly. But not bloodly likely. There is little that someone can’t do (essential functions of a job) because they smoke.
It would be horrible, horrible public policy for the company to refuse to hire smokers, most likely. Smokers are not a protected class under Title VII.
This isn’t something that can be answered at first glance and the employer’s motives matter. But that’s somewhat of the gist of the ADA.
I would hazard a guess, like Neurlman, that this issue would be covered on a state by state basis. I do know that I interviewed for a job several years ago where this was an issue. The company sold insurance to low risk clients. They would not write a policy for someone who drank or smoked, even socially. I was told in the interview, point blank, that they would not hire anyone for whom they would not write a policy. It made sense to me. My honest answer that I may have a glass of wine with dinner 3-4 times a year cost me a shot at the job. Harsh? Maybe. Illegal? Nope, not in Georgia. Should it be? Not IMHO.
Spooje, if you are interested in my opinion: anyone who smokes, or anyone who drinks, is NOT an addict. Anyone who cannot stop either, is. Alcohol is not as addictive as nicotine and many drugs are. And do not confuse habits and addiction. Many people smoke pot for years. Yet they can stop anytime “cold turkey”, without any physiologic consequenses. But if they decide to stop, promise it to thei SO, say; “This is absolutely the last one” and continue, that’s addiction.
I used to know a girl that worked at CNN in Atlanta. They (CNN) have a strict non-smoking policy where if you’re caught smoking anywhere - even on you’re own time in public, you automatically get canned. My kinda place!
JunrGatr, you left out a very big part. If the person’s conditon can be cured with medication or surgery, the person does NOT qualify for ADA.