Can An Employer Discriminate Against Me Because I Smoke?

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An AOL Jobs reader asks:

I am wondering what your opinion is on employers refusing to accept applications and/or offer of employment for a smoker. Smoking might be a health risk as is obesity or disability. I live in a state with many counties and one of them is going to start a "smoking ban" for new hires the previous county i lived in also did this all "fair"? Where are our rights going?

The employers claim it has to do with insurance issues but where I live now no employer gives employees insurance as most of the jobs are either part time or seasonal and not even part time when they give employees 10 hrs. per week. Where is the justification for this type of issue?

Where is the justification indeed? Employers are butting into employees' personal lives in ways we never contemplated when I started practicing law 27 years ago. The short answer is yes, employers can refuse to hire you or fire you because you're a smoker . . . unless you live in one of the 30 lucky states where this is illegal.

What excuses do employers use to invade your privacy this drastically? You're right, that the main excuse is that smokers have higher health insurance costs. However, the ACLU says this about the health cost excuse for discrimination against smokers:

[T]he Bureau of National Affairs reported in 1987 that 95 percent of companies that banned smoking reported no financial savings. Furthermore, even if there were significant savings, the price would be too high. To permit such discrimination allows, in effect, the banning of perfectly capable workers from any type of employment -- thus, denying them the opportunity to earn a living for themselves and their families. Permitting employers to act as "health police" will not solve our nation's health care crisis; it will only destroy the private lives of working Americans.

In the case reported by this reader, the employer doesn't even provide health insurance. So what's the excuse? It sounds like pure invasion of privacy, doesn't it? Yet it's legal in many states.

Here are the state laws that protect tobacco users from discrimination by employers:
  • Tobacco-only laws: Eighteen states prohibit discrimination against tobacco users. These states are Connecticut, District of Columbia, Indiana, Kentucky, Louisiana, Maine, Mississippi, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Virginia, West Virginia, and Wyoming.
  • Lawful consumable products laws: Eight states protect employees from discrimination if they use lawful consumable products, which would include tobacco. These states include Illinois, Minnesota, Missouri, Montana, Nevada, North Carolina, Tennessee, and Wisconsin.
  • Lawful outside activities laws: Four states say employers can't discriminate against employees who engage in lawful activities outside of work. Those states are California, Colorado, New York, and North Dakota

It should be noted that, even if employers can't discriminate against you for smoking on your own time, many of these state laws don't require employers to provide smoking breaks, smoking areas or any accommodations for smokers.

SHRM, the Society of Human Resources Management, has a terrific updated list of workplace smoking laws in every state, including laws banning smoking in workplaces and the various laws banning discrimination against smokers.

If your state is one of the 21 states that has zero protection for smoking and other legal off-duty activities, it's time to talk to your legislators and state governor about making a change. Unless employees fight for their privacy, we'll lose more and more ground to employers who think they have the right to poke their noses into our private business.

> Find a job in the state of your choice.

If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs.

Please note: Anything you write to me may be featured in one of my columns. I won't be able to respond individually to questions.
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