Friday, January 06, 2006

Why Discrimination Against Smokers is Discriminatory

I apologize for the tautological nature of this post's title, but it seems that there is some misunderstanding in the tobacco control community of the meaning of employment discrimination, at least as far as I'm using the term, and I'd like to clarify the reasons why policies in which employers refuse to hire smokers or fire existing smokers are unacceptable forms of employment discrimination, while policies in which employees decide not to hire people with bad body odor, tongue rings, purple hair, or tattoos on their face are not necessarily discriminatory (or if they are, they are not necessarily wrong).

I think there are 2 senses in which employment discrimination can occur. One is when an individual is judged not by his or her individual qualifications for employment, but by the group or category to which that individual is identified. The second is when an individual is judged by characteristics that are completely unrelated to any possible qualifications for employment.

For example, if an employer decided not to hire people with blond hair, that would be discriminatory for two reasons: (1) because individuals are being judged not on their individual qualifications for the job, but on the group to which they are identified by the employer; and (2) because having blond hair can hardly be considered to be related, in any remote way, to the qualifications to perform any job (unless, perhaps, you are applying for a role in a movie that calls for a brunette or red-head).

Employment discrimination seems to me to be wrong, and intolerable, when both of these conditions are present. In other words, if an employer decides not to hire anyone with purple hair, regardless of their other qualifications for a job, but does so because she is concerned about the public image of the receptionist she is hiring to welcome clients at her law office, then that is either not really discrimination or it is arguably not particularly wrong.

I think it's important to recognize that refusing to hire smokers is discriminatory and wrong because it fails on both of the above criteria.

First of all, a blanket decision to not hire smokers deprives any smoker of the opportunity to be considered for employment on the basis of his or her own individual qualifications for employment.

Second of all, whether a person smokes in their home or not is hardly relevant to his or her qualifications for most jobs. Obviously, there might be exceptions, such as perhaps a fire fighter or someone working for an anti-smoking organization. But in most cases, the fact that an individual smokes is not directly relevant to his or her qualifications for a job.

But the major reason why refusing to hiring smokers is intolerable discrimination, in my view, is that the behavior being judged is one that takes place in a person's own privacy and in a manner that is completely unrelated, and even indiscernible from the perspective of their employment.

So for example, if a person has a disheveled appearance, that is something that is readily apparent in the normal course of that individual performing his or her job duties. The same is true with purple hair, bad body odor, tongue rings, or tattoos on the face.

But whether a person smokes or not in the privacy of their own home is not something that is readily discernible without the use of a serum cotinine measurement. In fact, as an epidemiologist, I have strong evidence that even asking someone whether they smoke at home is not necessarily a reliable measure, and there is no valid way to discern from simply looking at a person whether they smoke or not.

The reason why the analogy to refusing to hire people who wear tongue rings, have bad body odor, purple hair, or tattoos on the face ultimately fails is that the analogy is flawed. The correct analogy would be to a policy not that refuses to hire people who show up at work with these features, but who do not show up at work with these features, but manifest them in the privacy of their own homes!

Remember, I am not arguing against policies that prohibit employees from smoking on the job. I am objecting to policies that do not allow employees to smoke in the privacy of their own homes.

So the correct analogy would be to a policy that refused to hire anyone who had a disheveled appearance in the privacy of their own home. Imagine, for example, that a law firm asked potential employees to provide a picture of them in their bed clothes to see how neat and clean their appearance was before they tucked in for the night, and then refused to hire anyone who did not look appropriately professional.

The analogy here is to the idea of extrapolating one's behavior and appearance on the job to one's behavior and appearance off the job. There are some situations when that is relevant, but not many, and smoking certainly is not in such a category.

It may be perfectly appropriate for an employer to dictate the way their employees appear and behave while on the job, but when they are off the job, and especially, in the privacy of their own homes, it is simply wrong for employers to dictate the appearance and lawful behavior of their employees.

Now it would be nice if one, just one, U.S. anti-smoking group or advocate were to publicly condemn this intrusive and discriminatory behavior.

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