Smoke gets in their eyes

Workforce, April, 2003

FEBRUARY'S LEGAL INSIGHT ARTICLE, "Gray Areas in Controlling Employee Lifestyles," which featured an interview with employment attorney Michele Coyle, a partner in the Los Angeles office of Hogan & Hartson LLP, about the legality of refusing to hire smokers, prompted questions and criticism. Here are the letters, and Coyle's response.

I read with great interest the column written by attorney Michele Coyle. As a management-side labor and employment attorney practicing in Florida, I take exception to Ms. Coyle's advice that a company should not refuse to hire smokers since it may run afoul of anti-discrimination laws. At least in Florida, employers can take comfort in the Florida Supreme Court's decision in City of North Miami v. Kurtz, 653 So. 2d 1025 (1995). In that decision, the court upheld the city's requirement that all employment applicants sign an affidavit that they had not used tobacco in the preceding year. Kurtz challenged the procedure on constitutional grounds. The court held that an employment applicant did not have a legitimate expectation of privacy regarding whether or not she used tobacco and that the right to smoke was not protected by the federal constitution. Additionally, the city had a rational basis for banning smoking among its employees because of the higher health-care benefit costs associated with smokers and the loss of productivity resulting from their having to go outside to smoke. Since constitutional rights generally do not apply in a private-sector workplace, Florida employers would be in an even better position to defend a challenge to a total ban on hiring smokers.

Any employer considering a total ban on hiring smokers would be well advised to check its state laws. For example, in some tobacco-growing states, there are laws that specifically prohibit discrimination against smokers. However, most states have no such laws, and therefore, employers may have greater latitude than was suggested in the article.

Mark J. Neuberger

Buchanan Ingersoll

Miami

I disagree with one of the major points made in the "Gray Area" article. If a client asked me whether it could refuse to hire smokers, I'd generally say yes. It's true that you can't refuse to hire someone because of a protected characteristic. However, smoking isn't a protected area, and I don't think that we could link the smoking to any protected trait (as opposed to, for example, the fact that pregnancy is specifically linked to gender). Further, I think the issue of second-hand smoke could be used as the basis of a "danger to others" argument, depending on the type of work done by the company, the amount of time people have to spend in the smoker's area, etc.

Employers have flexibility in making decisions regarding the acceptability of candidates that are based on issues in addition to a simple skill set. I do agree, however, that employers must be able to justify their selection process with reasonable criteria that have some rational relation to the position for which the person is being selected.

I'm having trouble understanding the basis of Ms. Coyle's statement, which seemed to strictly prohibit an employer from employing someone who possesses any habit or characteristic that is different from those of other applicants. Can you clarify that position for me?

Maria Greco Danaher, Esq.

Dickie, McCamey & Chilcote, PC

Pittsburgh

MICHELE COYLE REPLIES:

I enjoyed reading the comments from those who felt that an employer in their states could refuse to hire smokers without risking litigation. While I am aware of only five states where smokers are afforded protected status and thus such refusal would be prohibited (Wyoming, Oregon, New Hampshire, Louisiana, and Kentucky), and one state where a city's ban on hiring smokers was upheld (Florida), in most other jurisdictions an outright ban on hiring smokers would likely be controversial. Uncertainty over such a ban would eventually lead to litigation to test its legality. In California, the state constitution guarantees citizens a right to privacy that encompasses much more than the privacy rights protected by federal law. An outright ban on hiring smokers would immediately be challenged for reaching off-the-job conduct, and failing to distinguish between on-the-job and off-the-job behavior. Bottom line--any employer that wishes to avoid the cost of litigation, but limit its workforce to nonsmokers, should approa ch such a task with caution, and solicit the advice of counsel familiar with the privacy and equal-employment laws in the relevant jurisdiction.

Playing by the "Rules"

After 15 years in human resources, on some days it's tough to get a good laugh. However, you've done it again! Your article "Simple Rules for Workplace Harmony" (On the Contrary, March 2003) is a treasure. On this one I broke the rules (that I set) and e-mailed your article to key individuals who I know will appreciate it. For this week, Dilbert takes a backseat to your winning "memo". Thanks Shari and we love you (no harassment intended).