Non-Smoker Requirements

April 8, 2011

Q: Can I post job openings that state we hire only non-smokers? We have a large healthcare client that requires all contract service employees to be non-smokers.

A: Oh, boy! I’m not sure if that would be considered discrimination or not. I know you can create a tobacco-free workplace and have a drug-free workplace with pre-employment drug testing and periodic drug testing. I also know from our insurance folks that you can make employees who smoke pay more toward their healthcare coverage. I would be concerned that this might differ from state to state. I can see places like California accepting this practice, whereas in Tennessee it might be illegal.

So, I asked our HR attorney and this is what he said:

The Federal Anti-Discrimination Laws do not classify smokers as a protected group. Likewise, smoking isn’t a disability under the Americans with Disabilities Act (unlike alcoholism). However, 29 states (and the District of Columbia) have laws that prevent discrimination against employees that use tobacco products. There are no statutes in the others that specifically forbid discrimination against tobacco users.

That sounds straight forward enough that you need to figure out if you are in one of those 29 states. But, wait … here comes the good part. He went on to say:

Nonetheless, it is conceivable that an individual could allege that discriminating against tobacco users is a proxy form of discrimination against a particular minority grouping. The United States Supreme Court has recognized a legal doctrine called “disparate impact.” Under that doctrine, if it can be shown that by refusing to hire smokers, an employer is indirectly discriminating against a particular minority grouping, it is possible the practice could be found to be discriminatory. In order to make such a showing, a would-be employee must demonstrate that members of the minority grouping at issue use tobacco at a statistically significant higher rate than nonmembers of that minority grouping.

And, sure enough, the last part casts a shadow of doubt over the part I understood. I bet your client is in a state that allows this; if they are in the same state as you, chances are you can. Check with your HR firm before doing anything. — CW

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