Refusing to Hire Smokers - Settle a debate

franfields

Is it legal to ask an applicant if they smoke and, if they do, refuse to hire them?

What about physical exams? Can they be required or must the physical requirement relate specifically to a job function?

I am in Arkansas.

Gillian

Unless Arkansas has passed a law protecting smokers, which I doubt, it is not illegal to use smoking/non-smoking as a selection criteria. Some, but not too many, organizations use that criteria. Physical examinations should be job related.

Theresa Gegen TX

[font size="1" color="#FF0000"]LAST EDITED ON 11-16-01 AT 01:20PM (CST)[/font][p]Several states have laws protecting smokers from employment discrimination -- usually they are the tobacco producing ones. I do not know if your state has one.

However, some states also have law protecting applicants from discrimination based on private conduct that is not illegal. So that law may also come into play. You will have to call an employment attorney in your state to determine if this comes into play.

Another issue with a refusal to hire a smoker is that the smoker will probably claim that your reason is a pretext for an unlawful reason. Your company probably already has employees that smoke, so the applicant will not believe that you screened them out because of smoking.

The best thing any company can do is to hire the person who is most qualified for the job, based on actual job qualifications. Any time a company uses a non-job related disqualifer (like smoking habits) the company opens itself up to complaints about whether that was the true reason the applicant was not hired. Consider this scenario: the company has 2 applicants, one male barely qualified for the job and one female with excellent qualifications. The male is a non-smoker and the female is a smoker. The company hires the male because he is a non-smoker (even though that has nothing to do with job qualifications). This would not be an easy case to defend if the female sued for sex discrimination.

The smoker could be African American, Older, disabled (name any category).

Even if the policy is neutral, but is shown to have a disparate impact on a particular group (for example if an applicant could show that more women smoke than men, or that more hispanics smoke than caucausions), the company could be liable for discrimination.

So, the company needs to ask itself, is this a road we really want to go down? The costs may not outweigh the benefits.

That being said, in a Florida case, the Court upheld the right of a state employer to ask applicants about smoking and refuse to hire those that smoked.

So before implementing this policy, an attorney in your state needs to review the local law.

Good Luck!

LAB

Both Kentucky and South Carolina have laws protecting "Smokers Rights". KY statute protects employment as well as terms and conditions such as not paying higher health insurance premiums. Employer can have smoke free workplace with designated smoking areas (can be outside). Longer or more frequent breaks are allowed. Smokers to be treated as any other applicant/employee with respect to company policies.

Down_the_Middle

Smokers are certainly not a protected class in any state that I know of. One has to ask the question, though, as to the wisdom in doing this in such a tight labor market for most industries. While concern over smoking may be an issue for wellness and health plan utilization, there are also those "other categories" that trouble some folks.......alcohol consumption, excess body weight, use of other forms of tobacco, etc...... I have trouble with this legislative approach to lifestyle issues, but that wasn't part of your question......

Theresa Gegen TX

Actually Oklahoma has a state law that protects employees from discrimination based on the "use of tabacco products or smoking." Some other states may have a similar law.

California, I believe, protects employees from discrimination based on conduct in their private life -- off the job conduct -- (so long as the conduct is legal). I believe one could argue that smoking falls into this category.

felicia_matthews

Additionally, an applicant could claim ADA protection as a "nicotine addict". And what do you do with an employee who suddenly picks up the smoking habit? Fire them, demote them, etc???

I think that if there are concerns with hiring a smoker, i.e., higher insurance rates, too many or too long of breaks, the focus should be on offering cessation classes or other programs, instead of simply not hiring a smoker...