"We know that demographically approximately 25 percent of the adult population smokes, and that 25 percent tends to have less desirable characteristics in terms of employment"

Translation: don't let the sun set on you here, working class person, Pat Buckley or Kate Moss

I mostly share your concerns, but I don't think there's grounds for an equal opportunity lawsuit here. The business can clearly show a direct impact between the class of individuals they hire and their bottom line. Hire no smokers, pay less in health insurance premiums.

Courts have generally sided with business in cases like these where the business can show a clear correlation between this type of discrimination and the bottom line -- it's not unlike the type of discrimination that allows auto insurers to charge men, singles and younger drivers higher premiums for the same coverage.

Having said all that, it does point out one of the pitfalls of employer-provided health coverage. Employers have been more prying into the private lives of their employees for a couple decades now, on a fairly steady, slowly increasing scale; this is just more proof of it. And as you say, next they can go after other people who don't live a "health police-approved lifestyle".

I'm not against reasonable ways to hold individuals accountable for their own bad health decisions, but this is a bit too far. Perhaps hiring them and insuring them, but requiring them to eat a somewhat higher payroll deduction, would be the most fair here. Just as it seems a bit much to not hire someone because they aren't the poster children for "diet and exercise," so too is it not fair for those who make good health decisions to be subsidizing, albeit indirectly, the folks who don't.

Although I don't smoke and generally agree with most anti-smoking efforts, I do agree that if the report is accurate, it seems to go a bit far. I suspect that a company like Alaska Airlines could accomplish much the same thing by doing the following:

1. Banning smoking on the job and anytime an employee is in uniform. You want to smoke? Wait until you're off the job and out of uniform.

2. Excluding smokers from the group insurance plan or set up a separate plan for smokers. That way the majority of non-smokers in the company don't have to subsidize health insurance for the smokers.

Both of those two measures are completely valid from my point of view and would be legally defensible.

A bit off-topic but I gotta say that I really have no patience anymore for those who want to smoke in public. The past 10-years or so of no-smoking in public offices, malls, airports, and restaurants has really been refreshing. And you don't realize how much smoking is an imposition on everyone around until you travel to places where smoking in public is more common. I take annual trips to Chile with my wife and kids to visit her family. Every time we go the public smoking in every mall and restaurant is just a slap in the face and a huge irritant.

I'm of two minds on this issue. On the one hand, the smoker has every right to work if he/she is able to do the job without interfering with the rights of those who find smoking offensive. On the other hand, I'm reminded that many athletes have clauses in their contracts that prohibit activities that have nothing to do with their sport while they are away from the playing field.

While I think an employer has the right to restrict smoking on the job, what occurs away from the job is open to debate.

These policies are more common than you might think - scan the help wanted classifieds for some idea. I agree - ban it at work if you must, but give your employees some discretion over their private lives.

BTW - I think the insurance argument is bogus as well. I'm a vegetarian but I'm not out there advocating charging carnivores higher insurance rates because their diets lend themselves to high cholestrol and heart disease. While I'm sure that insurance companies would love to itemize our rates each year based on lifestyle and genetic predisposition to disease, it can only spell bad news for the rest of it and we should fight it tooth and nail IMHO.

BTW - I think the insurance argument is bogus as well.

Just curious -- do you also think it's bogus that men pay more for auto insurance than you do, even with identical driving records and driving experience?

For the record, before I begin, I am a nonsmoker and I have never smoked; I detest being around tobacco smoke, and I am certain that secondhand smoke is a serious health hazard. This isn't about banning smoking in the workplace itself; I insist on that.

That said, I'm with those above who think refusing to hire smokers is outside the pale. I also believe having a separate employer insurance plan for smokers is a gross injustice, though that may have more to do with my views on insurance than with my outlook on smoking.

And yes, I do see a slippery slope for the potential employee, starting with tobacco use at the top, greased by fatty foods on the way down and landing inert on a couch in front of a TV (or a chair in front of a computer!) at the bottom. What else will employers ban? Will they send a representative to make sure you're taking precautions when you have sex? After all, both babies and AIDS are expensive for employers.

Seriously, there are at least two distinct issues here: whether people have a reasonable expectation of freedom (and I choose that word deliberately and in its broadest sense) when they are off work, and whether there is any sense in reasoning from the general case, e.g., percentages in the population, to the individual in question. There is simply too much to both of those questions to discuss in a comment thread, but the short version is that the whole concept of freedom means little if someone controls your (legal) behavior when you're off the clock (including compelling someone through economic means), and reasoning from the general to the particular often has the potential for great unfairness to large numbers of individuals.

Just curious -- do you also think it's bogus that men pay more for auto insurance than you do, even with identical driving records and driving experience? - Tim

I most emphatically do. Placing insured drivers into a cohort by age and sex is a convenience and a money-maker for insurance companies, but I've never seen a plausible justification that age and sex, per se, actually cause good or bad driving. As always, correlation does not imply causal relationship, and in any case you cannot legitimately reason from population statistics to an individual's characteristics. "Bogus" is a good word for that practice.

As to pricing by age and sex, you may as well categorize people by skin color. Oh, wait, that's (quite rightly) illegal, isn't it? So should be pigeonholing people by other personal characteristics they cannot change.

Smoking rights, like gun rights, fur rights, and a number of other such recreational issues, bring into focus the differences between right-wing authoritarianism (see the fine work of Bob Altemeyer) and left-wing authoritarianism (less studied, but Altemeyer has a chapter on it): RWAs act in their own perceived interest when they forbid things to others; LWAs do it to you 'for your own good'.

I agree that it is going to far. However, from the point of view of a corporation which pays for employee's health care a smoker would theoretically increase those costs. As smokers get older they have more health problems. Business is in business to make money and decrease liabilities against those profits. Keep in mind that there is a prejudice against very overweight people in the business world possibly for the same reason.

Refusing to hire someone who smokes off the clock should absolutely qualify for an EEOC lawsuit. Healthcare costs is a red herring. If you can legitimately ban smokers, then you should ban anyone who indulges in adult beverages (auto accidents and liver problems are expensive), participates in extreme sports or is a practicing homosexual, since studies show that they are trending back to sexual practices that were prevalent before AIDS became an issue. But no company would dare even ask if an applicant is a homosexual, for fear of the resultant lawsuits. What I or anyone else does off my employer's premises is noone's gawddamn business

I can see a legitimate concern from some industries about smokers. The airline industry, for example, needs to have people who can carry out high-stress jobs without the need for a cigarette interfering with how they work. You can't exactly light up on an airplane, and smoking is a condition that can impair how they do their jobs.

Outside of that kind of thinking, however, I definately agree that there should not be this kind of behavior regulation by businesses of their employees private lives.

Addressing the insurance issue: Consider the employee that doesn't smoke, but also doesn't exercise. That doesn't smoke, but drinks daily. That doesn't smoke, but eats a double cheesburger and fries everyday for lunch. Then try and justify why only the individuals that smoke should be penalized with the higher premiums of a separate insurance plan.

And Kent, if you consider smoking in the designated area of a restaurant an irritant, try having someone sit behind you during an expensive dinner with their wife and children, and asking you to put out your cigarette because the second hand smoke bothers them, without having the common courtesy to ensure that their children don't scream, make faces, fall on the floor, crawl under your table, kick chairs, throw things, and on and on and on...now that's worthy of a slap in the face

This is just so wrong. While I'm ususually not a big fan of the slippery slope argument, where does this end exactly? If employers get to consider smoking as a criteria for excluding someone from their job pool, then why stop at smoking?

If certain kinds of decisions affect health care needs then what about overweight people? Do employers get to exclude people who don't exercise? Or people who eat McDonalds for lunch every day? Or people who drink more than 3 drinks per week? Or people with too many speeding tickets? (Assumption is that they're more likely to get into accidents.) There are so many things people do that are dangerous and negatively effect their health, smoking is one of many.

I think too much is made of smoking. Americans are freakishly obsessed with their health and mortality. This is going too far, it's too invasive. Frankly, it's just plain obnoxious.

"Consider the employee that doesn't smoke, but also doesn't exercise. That doesn't smoke, but drinks daily. That doesn't smoke, but eats a double cheesburger and fries everyday for lunch. Then try and justify why only the individuals that smoke should be penalized with the higher premiums of a separate insurance plan."

What about someone who does smoke, drinks 1-3 drinks most days, eats a reduced calorie diet very low in saturated fats and high in fiber, poly- and monounsaturated fats and Omega 3 fatty acids, and exercises vigorously for an hour a day, six or seven days a week?

I disagree with most of the folks here. As I understand it, the EEOC protects employees from discrimination in only a few areas, race, sex, religion, national origin, and ADEA protects against some age discrimination. Anything else falls under freedom of contract. No one has a general right to a particular job. In Texas, especially, where employment is considered at will, you can be fired for any number of nonsense reasons, so long as they don't cross over the magic categories that are protected. Smokers, fat folks, ugly people, rude people, pet owners, any of these reasons are reasons left to the employer. Of course, in theory, if an employers limits itself only to non-smokers, presumably they are limiting the applicant pool and the overall excellence of their employee group should be less. But that is up to them.

Suck it up. They can test for nicotine like any other drug, it's often as evident as poor personal hygiene, and, most inexorably, it's increasingly associated with the one disadvantage they can always discriminate against: low socio-economic status. You can find another job if your right to smoke is that important.

There's a false premise here. The employers want to discriminate against smokers, believing that smokers add to their health insurance rates, and if they don't hire them, their rates will decrease (or at least, stop rising so fast). But health insurance is an aggregation of risk across many companies, and there are plenty of smokers insured on your health plan in OTHER companies. Refusing to hire smokers in your company will have only an infinitesimal effect on health insurance costs unless it can be eliminated in EVERY company using your insurance plan.

I'm an ardent anti-smoker, but this goes too far! Based on the idea that the employer has an interest in your overall heath, there is nothing an employer can't control in your outside life:

Want to go skydiving? Sorry, the boss says no. SCUBA? Nope. Want to own a motorcycle? Icks Nay.

Single and want to date? Nope, the boss says, "No sex for you!" You might get AIDS and cost the health plan money.

The primary cure for this is getting away from having our health care based on our employer where he has a conflict of interest with our civil rights.

I smoke, although not indoors, and I agree it's a stupid and destructive habit, but if you've ever seen the insurance coverage the executives at most companies get (and believe me, it looks _nothing_ like the insurance coverage the rank and file gets - bijoux insurance for executives is a huge product and growing), you'd look with a bit of a jaundiced eye at companies that want to reach into your personal habits to decide what coverage you deserve.

Take, for instance, Coors, which I guarantee you provides Viagra but no longer birth control.

To get around any EEOC meddling, just make a simple test such as 'ability to walk up a flight of stairs without getting winded', if you want to weed out the uneducated, unseemly, and unhealthy practitioners of a trashy habit such as smoking. :)

Alternatively, you could have a test such as "can you work an honest day without stepping outside for a CancerStick every few minutes?" or "do you understand the basic tenets of science and public health?" This usually weeds out smokers as well.

A number of comments here.

First, I generally agree with Kuff: "It's none of your damn business if someone smokes outside of work. By all means, ban smoking in your building, ban it near your building if you want, but keep your nose out of what legal things employees do on their own time."

In fact, I would go even further: even if what their employees are smoking on their own time is illegal, employers should keep their noses out, unless it affects the emloyee's performance or safety on the job. (Note also how this gives the lie to John Fought's false distinction between "right-wing" and "left-wing" authoritarians - so-called RWA's have no problem with drug testing, when the drug is marijuana and not nicotine.) I don't smoke (legal or illegal drugs), but I resent having to prove that I don't in order to get or keep a job. Private employers aren't subject to the Fourth Amendment, but they shouldn't abuse that privelege by becoming the Government's deputies in the Drug War.

Second, I think Tim is probably right that there's no grounds for a lawsuit against employers with these kinds of extreme anti-smoking policies. New legislation would be needed. Of course, that's (turn up the volume now) "Government Regulation," but too damn bad!

Third, as far as the "insurance argument" goes, there's a simple solution: outlaw "experience rating," whereby health insurers charge businesses in the same community different rates based on their claims experience. Again, that's "Government Regulation," but it has to be done, since in a "free" insurance market, "community" raters will always be at a competitive disadvantage.

Fourth, I have to respond to this: "I'm a vegetarian but I'm not out there advocating charging carnivores higher insurance rates because their diets lend themselves to high cholestrol and heart disease."

Vegetarians may, on average, have lower cholesterol levels and rates of heart disease, but 'taint necessarily so in every case. First, cholesterol levels depend partially on genetics. Second, many vegetarian foods (esp. processed foods) are high in saturated and/or trans-monounsaturated fats, which raise LDL ("bad") cholesterol levels. Third, not all meats are high in said fats. Properly prepared, fish and fowl can be as good for your heart as vegetarian diets.

Fifth, re: "If you can legitimately ban smokers, then you should ban anyone who...is a practicing homosexual, since studies show that they are trending back to sexual practices that were prevalent before AIDS became an issue."

I think you're on our side here, but I'd like to remind you that only applies to gay men. Lesbians actually have a lower risk of AIDS than straight women.

Sixth, re: "But no company would dare even ask if an applicant is a homosexual, for fear of the resultant lawsuits."

I wish that were true, but it's simply not. There is nothing illegal about anti-gay discrimination in most of the country, and employers can and do discriminate against them. A pretty big one is even headquartered in Irving, Texas. (Hint: they're also a major contributor to global warming.)

Seventh, re: "To get around any EEOC meddling, just make a simple test such as 'ability to walk up a flight of stairs without getting winded', if you want to weed out the uneducated, unseemly, and unhealthy practitioners of a trashy habit such as smoking."

Assuming that nicotine use were protected by law: If that's a bona fide occupational qualification (e.g., fire fighter), then fine. Otherwise it'd be just as illegal as, say, a height requirement to "get around" the ban on sex discrimination.

As an ex-smoker I have to say I knew it was killing me and when I got to a point in my life that that mattered I was able to quit. It's not about understanding, it's about desire...
also this particular slippery slope started back with Ford (Henry)...he'd have agents come around to make sure employees were good family men, didn't drink, didn't smoke, etc...
one of his many evils...
but it accelerated when they started testing for illegal drugs...
if you can do the job, you can do the job...
if not you shouldn't have it...
simple...
when you're not at work you can be a monster, a crazy person, a druggie, or heck even a blog-addict and it shouldn't make a damn bit of difference...
I know lots of sober non-smokers who I hope to never have to work a day with in my life...
incompetence knows no boundaries...

Social stigma, my ass. Once municipalities get the power to forbid legal activities on private property, why should'nt such measures be allowed to the owners of the property?

You're about a decade down the slippery slope, Chuck, and I don't think the courts are going to save you. Best put down that beer and get on that bike, if you happen to work for such a company.

As an employer, I applaud this. In fact, in my own business, I am trying to go a step further and ban sexual activity -- not just on the job, but off the job too.

It's a know fact that sex is dangerous (disease, pregnancy, emotional issues). It also takes time and energy from my employees, and its messy and stinky to boot. Away with it!

I agree that this crosses the line. Please!

Additionally, how would we fund all those programs that get cigarette tax money if everyone quit?

A quick note on the insurance issue - smokers already pay higher premiums in employer and individual plans than non-smokers. Perhaps this is the issue - if the employer is picking up a percentage of the health insurance premium then the costs for smokers is definitely higher.

I think some of these smoking bans are rediculous. Isn't this the land of the free? Why are our rights being taken away? What we do in our personal lives shouldn't have any effect from our jobs.