Employer Justification for Smoker Discrimination
Imagine you’re a first-year associate and after your standard fourteen-hour workday, you sit back and indulge in a product recently found more addictive than cocaine: the iconic Oreo. You rush back to work the next morning with a wayward Oreo stain on your favorite blazer only to end yet another long day…with a pink slip!?! You violated the firm’s categorical ban on Oreo consumption promulgated to reduce diabetic healthcare costs believed to rise with sugar consumption. Luckily for this author, no employer has banned recreational Oreo consumption, but America’s over 43 million smokers aren’t so fortunate. Healthcare industries, city municipalities and airlines have banned hiring prospective candidates who smoke or use tobacco products, citing controlling costs and presenting a “healthy” image for their rationale. These employers may be justified in their decision given the new “tax” for not proving health benefits to all employees. However, employer regulation, and especially government employer regulation, of what happens in an employee’s home seems to conflict with those penumbral privacy rights cherished and protected by our judicial system.
As a result, twenty-nine states and the District of Columbia have enacted “smoker protection laws,” which prohibit various forms of discrimination based on a candidate’s off-duty smoking habits. The laws vary in their expansiveness and application. For example, D.C.’s legislation exempts employers who prove nonsmoker status is a Bona Fide Occupational Qualification (BFOQ). This carve out may lessen the worries of the hospitals, clinics and fire stations most likely to institute the bans. Other state legislation such as Kentucky’s statute eases employers’ cost concerns by banning smoking-based discrimination for hiring and termination decisions but allowing employers to charge higher rates to smokers for employer-subsidized healthcare premiums. However, most of these laws prohibit any smoker-directed discriminatory activity, and some, such as California’s and North Dakota’s, extend protection to any employee’s “lawful off-duty” activities. Especially with the recent legalization of marijuana, employers may question how these laws square off with previously adopted drug-free workplace policies.
Though employers’ smoking-based discrimination seems to infringe an employee’s right to engage in a lawful off-duty and private activity, state intervention could also be attacked with a similar rationale. First, employers may invoke the “contract clause” constitutional defense, which states that no state can enact a law violating the obligation of contracts. Employers could aver that such statutes impinge on both their rights and an employee’s rights to enter into valid employment obligations. However, such an argument is likely to fail in the post-Lochner Era. Employers could also appeal to theories that such regulation constitutes confiscatory “takings;” but they are more likely to rely on business needs (such as the case with hospitals), the need to guarantee compliance with smoke-free workplace requirements, or the notion that they shouldn’t have to pay for wrongs caused by tobacco companies. In this case, a business’s right to control costs and shape its workforce conflicts with a person’s right to engage in a lawful private activity. This conflict evokes the questions of whether states should legislatively declare smokers a protected class and how legislation should be tailored to balance competing employer interests. With the rapidly-changing healthcare regime, this issue is one to watch in the future.
[*] J.D. Candidate, Harvard Law School, 2016.
 Oreos just as addictive as cocaine—in rats, United Press Int’l (Oct. 15, 2013), https://www.upi.com/Health_News/2013/10/15/Oreos-just-as-addictive-as-cocaine-in-rats/76821381873121/ [https://perma.cc/L9DY-GACE].
 See Current Cigarette Smoking Among Adults in the United States, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/tobacco/data_statistics/fact_sheets/adult_data/cig_smoking/ [https://perma.cc/WVQ3-ADX2].
 David A. Asch, Ralph W. Muller & Kevin G. Volpp, Conflicts and Compromises in Not Hiring Smokers, New England J. Med. (Apr. 11, 2013), https://www.nejm.org/doi/full/10.1056/NEJMp1303632 [https://perma.cc/H2TY-E4LR].
 State ‘Smoker Protection’ Laws, Am. Lung Assoc., http://www.lungusa2.org/slati/appendixf.php [https://perma.cc/AR6R-ERNY].
 Discrimination Laws Regarding Off-Duty Conduct, Nat’l Conf. of State Legislatures (Oct. 18, 2010), http://www.ncsl.org/documents/employ/Off-DutyConductDiscrimination.pdf [https://perma.cc/JNN5-8MAC].
 U.S. Const. art. I, § 10, cl. 1.
 U.S. Const. amend. V.
 See, e.g., State Smoke-Free Laws for Worksites, Restaurants, and Bars—United States, 2000-2010, Ctrs. for Disease Control and Prevention (Apr. 22, 2011), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6015a2.htm [https://perma.cc/99C3-V36U].