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: The Journal of the Business Law Society

Puff-Puff, You're Unemployable

By Naoshi Cummings

I.  Introduction

An increasing number of employers are refusing to hire smokers in hopes of cutting health insurance costs and increasing productivity. [1] A number of large corporations, including Alaska Airlines, Union Pacific, and the World Health Organization, have instituted formal policies against hiring smokers. [2] This practice has surfaced in a variety of employment industries including health care, government services, education, transportation, law care maintenance, and retail services. [3] Though this practice appears to be gaining popularity, the more common method of cutting costs associated with smoker-employees is to provide cessation incentives within the workplace.[4]

Three initiatives that smokers have utilized to combat anti-smoker policies are: 1) assertions of a constitutional "right to smoke," 2) claiming violation of privacy rights by requiring an individual to disclose their smoking habits, and 3) attempts to have nicotine addiction classified as a disability under the Americans With Disabilities Act ("ADA"). [5] All three of these arguments and mechanisms have been largely unsuccessful. [6] This discrimination is perfectly legal so long as employers are not using an individual's smoking status as a pretext for discrimination prohibited by federal and state statutes.[7] Employers must also refrain from engaging in this practice in states with statutes explicitly prohibiting such discrimination. [8] However, it must be noted that the Supreme Court has said nothing as to the legality of this practice. [9] As such, employers engaging in this practice may want to develop secondary plans for cutting costs.

II.  Challenges Based on Violation of the United States Constitution

Claims brought pursuant to the United States Constitution on grounds of equal protection violations are easy to overcome.  Firstly, there is no express or implied constitutional right to smoke tobacco, and the act of smoking is not a fundamental right. [10] Secondly, smokers are not a "suspect class" warranting heightened scrutiny of policies discriminating against them. [11] Accordingly, such anti-smoker policies are presumed to be valid and the employer only needs to establish a "rational connection between the non-smoking regulation" and the stated goal of the policy. [12]

The constitutional challenge most likely to succeed appears to be alleging that disclosure of one's smoking status violates the right to privacy implicit in the United States Constitution. [13] The Supreme Court granted the lower federal courts with the ability to "discover" new fundamental rights. [14] As such, federal courts have the power to expand the right of privacy, a fundamental right, to include disclosure of off-duty nicotine intake, and could subject employer policies regarding off-duty smoking to a heightened standard of scrutiny much less deferential to the employer.

III.  Challenges Based on Disability Discrimination in Violation of the ADA

Challenges alleging discrimination against persons with the disability of being addicted to nicotine in violation of the ADA are consistently denied. [15] To begin with, smoking or "nicotine addiction" is not a disability within the meaning of the ADA. [16] This is in part due to a reluctance to classify millions of people as disabled and also partly due to the "remediable" nature of smoking and nicotine addiction. [17] Additionally, nothing in the ADA prohibits employers from discriminating based on smoking. [18] Thus, challenges to the refusal to hire smokers premised on nicotine addiction being a disability are precluded.

IV.  Challenges Based on Pretextual Use

One viable federal statutory challenge would be to allege an employer's policy of not hiring smokers was being used as a pretext for discrimination of persons protected by Title VII or the ADA. [19] The only other viable option would be to claim that such a policy in the workplace was only being exercised in retaliation of an individual exercising a protected right such as filing an administrative claim. [20] Federal courts have not specifically addressed the potential pretextual use of the refusal to hire smokers, but decisions involving termination based on violation of no-smoking policies are instructive.

To prevail on such a claim, a plaintiff's burden of proof would be high. Retaliation claims would require a plaintiff to produce evidence demonstrating that the employer's "legitimate reason was a mere pretext." [21] Claims of race, sex, and disability discrimination would require the plaintiff to establish: 1) membership in the protected group; 2) that the plaintiff was qualified for the position; 3) despite such qualifications, the plaintiff suffered an adverse employment decision; and that 4) similarly situated people not in plaintiff's protected group were treated more favorably. [22]

V. State Law Challenges

There are currently no published opinions that find an employer's inquiry into the off-duty smoking of a potential employee to be violative of the right of privacy granted by a state constitution. Further, in most states, claims for violation of state constitutional rights of privacy are restricted to government employers. [23] However, it is worth mentioning that at least one state found that a private employer requiring drug testing for the presence of nicotine may have potentially violated privacy rights under the state's constitution. [24]

The most successful state law challenges to this practice will be in the thirty-one states which have statutes protecting smokers from employment discrimination. [25] However, some of these statutes speak only to the conduct of government employers. [26]

VI. Conclusion

Aside from state statutes prohibiting discrimination based on smoking, the only legal restriction on such discrimination is that such policies cannot be used as a pretext for discrimination against members of protected groups. For now, it appears that employers using this policy to cut costs may do so without fear of legal reprisal. However, employers must be mindful of the fact that the legality of this practice will remain unsettled until the Supreme Court speaks on this issue.

____________________________________

[1] See Christopher Valleau, If You're Smoking You're Fired: How Tobacco Could Be Dangerous to More Than Just Your Health, 10 DEPAUL J. HEALTH CARE L. 457, 462 (2007), This policy is being practiced by more than 6,000 companies nationwide seeking to control costs and the National Workrights Institute expects this number to increase. See also City of North Miami v. Kurtz, 653 So.2d 1025, 1026 (Fla. 1995), wherein City of Miami "adopted employment policy designed to reduce the number of employees who smoke tobacco, and Rodrigues v. Scotts Co., LLC, No. 07-10104-GAO, 2008 WL 251971, slip op. at 1 (D. Mass. Jan. 20, 2008) where a lawncare company adopted policy "to save money on medical insurance and to promote healthy lifestyles among it's employees."

[2] Valleau, supra note 1; HILARY SMITH, MSN MONEY - INSURE YOUR HEALTH, THE HIGH COST OF SMOKING, 1 (Nov. 2005), http://www.alpharesourceshypnosis.com/pdf/2/pdf.   

[3] Valleau, supra note 1, at 457-458, 462; Kris Maher, Employers Filter Out Applicants Who Smoke, WALL STREET J. ONLINE, Jan. 18, 2005, http://executivewoman.com/hrcenter/articles/20050118-maher.html; Jennifer Barrett Ozols, A Job or a Cigarette?, Newsweek, Feb. 24, 2005, http://www.msnbc.msn.com/id/7019590/site/newsweek/print/1/displaymode/1098/; Smith, supra note 2, see City of North Miami, 653 So.2d at 1026; see also Rodrigues, No. 07-10104-GAO, 2008 WL 251971, slip. op. at 1.

[4] Ozols, supra note 3.

[5] Grusendorf v. City of Oklahoma, 816 F.2d 539, 540-41 (10th Cir. 1987), alleging a right of privacy under the Florida state constitution and the United States Constitution; Brashear v. Simms, 138 F. Supp. 2d 639, 693-94 (D. Md. 2001), alleging an ADA violation and a violation of constitutional right to smoke; and City of North Miami, 653 So.2d at 1026, alleging a right of privacy under state and federal constitution.

[6] Grusendorf, 816 F.2d at 542; Brashear, 138 F. Supp. 2d at 694-95 (finding no fundamental right to smoke and nicotine addiction is not a disability within the meaning of the ADA); City of North Miami, 653 So.2d at 1028 (finding no federal or state constitutional violation of right of privacy); Valleau, supra note 1, at 467-68, 475-77; L. Camille Hebert, Consideration of Lawful Off-Duty Conduct as Invasion of Privacy, 2 Employee Privacy Law 13:48, (last updated Nov. 2007); L. Camille Hebert, Right to Privacy Implications of Regulation of Lawful Off-Duty Conduct, 2 Employee Privacy Law 13:4, (last updated Nov. 2007).

[7] Ilan Brat, A Company's Threat: Quit Smoking or Leave, Scotts Miracle-Gro Joins Rank of Employers Trying to Cut Costs By Targeting Smokers, WALL STREET J. ONLINE, Dec. 20, 2005, http://executiverecruitment.com/hrcenter/articles/20051221-brat.html; Hebert, supra note 6.

[8] Valleau, supra note 1, at 479-82; Brat, supra note 7.

[9] 5 Emp. Coord. Employment Practices 24:2 (last updated Feb. 2008).

[10] Grusendorf, 816 F.2d at 541; Brashear, 138 F. Supp. 2d at 694; City of North Miami, 653 So.2d at 1028; Valleau, supra note 1, at 468-69..

[11] Romer v. Evans, 517 U.S. 620, 637 (1996) (Scalia, J., dissenting); Valleau, supra note 1, at 468-69.

[12] Grusendorf, 816 F.2d at 542-43; Brashear, 138 F. Supp. 2d at 694.

[13] Grusendorf, 816 F.2d at 541, 543; Hebert, supra note 6.

[14] Grusendorf, 816 F.2d at 541.

[15] Brashear, 138 F. Supp. 2d at 694.

[16] Americans With Disabilities Act, 42 U.S.C.A. § 1201 (1990); Brashear, 138 F. Supp. 2d at 695.

[17] Brashear, 138 F. Supp. 2d at 695; Valleau, supra note 1, at 475-77.

[18] 45A Am. Jur. 2d Job Discrimination § 399; Employment Practices, supra note 9.

[19] King Golden, Jr. v. Commc'n Tech. Corp.-Moore Lambert Indus., No. C84-1088A, 1985 WL 1102 (N.D. Ga. January 29, 1985), wherein plaintiff alleged racially differential treatment; Chapsky v. Baxter V. Mueuler Div., No. 93-6524, 1995 WL 103299, at 1-2 (N.D. Ill. March 9, 1995), wherein plaintiff alleged sex and disability dicrimination; Hebert, supra note 6; No-Smoking Rules, 10 Emp. Coord. Labor Relations 30:147; Brat, supra note 7.

[20] Tzannetakis v. Seton Hall Univ., 344 F. Supp. 2d 438, 440, 448 (D. N.J. 2007), wherein plaintiff alleged retaliation for filing EEOC claim.

[21] Tzannetakis, 344 F. Supp. 2d at 438, 440, 448.

[22] Chapsky, No. 93-6524, 1995 WL 103299, at 3.

[23] Hebert, supra note 6.

[24] Rodrigues, No. 07-10104-GAO, 2008 WL 251971, slip op. at 3.

[25] Summary Reports, State Smoker Protection Laws, American Lung Association, http://slati.lungusa.org/appendix.asp; Valleau, supra note 1, at 478-83

[26] Valleau, supra note 1, at 479.

Full post as published by The Journal of the Business Law Society on February 25, 2008 (boomark / email).