Will the current debate over smoking someday lead to 'The Lifestyle Choices Act'?
I watched with interest the other night as business people and lawyers on a talk show debated whether companies should be able to fire smokers and refuse to hire job candidates who smoke. More than 6000
U.S.
companies have now imposed such a ban and it's likely many more will follow suit. This is a fascinating issue and it will spark contentious legal battles in coming years. It may even result in new legislation to protect employees from employers who pry too deeply into their private lives.
One guest on the TV show was a Seattle CEO whose small company banned smoking. He argued persuasively that his reasons had nothing to do with bias; they were purely related to cost. Annual health insurance premiums are more than $1,500 higher for smokers. Smokers are less healthy, so they call in sick more often. They take costly cigarette breaks. All told, you lose an additional $1,500 or so in lost productivity for every smoker you employ. The business world is extremely competitive, the CEO said, and hiring smokers who increase his costs make his company less profitable and less able to compete.
Another guest raised the "slippery slope" objection. If you ban smokers, who's next? Disabled employees? People who have trouble sleeping at night? The same logic applies to them, doesn't it? Well, no, argue advocates of smoking bans. Smoking is addictive, but it's a choice. You've never met anyone who reversed a spinal injury, or grew back a limb through an act of will. But you've known many people who quit smoking from one day to the next. Smokers cost companies a lot of money. They can quit at any time. Nobody should have to employ them.
The logic for banning smoking sounds pretty sound. But not all decisions in business, or in society, are based strictly on logic. I’ve never met a CEO who wouldn’t tell you that office romance is dangerous and often costly, but most companies don't prohibit it, even though they have every right to. The courts aren't always willing to go with pure logic either. In non-compete cases, companies rightly argue that after they invest huge sums of money training people and sharing proprietary secrets with them, employees shouldn't be able to jump to a competitor. And yet every day the courts rule in cases where they have to balance a company's proprietary rights with the employee's "right to make a living." And they very often side with the employee.
Opponents rightly argue that discriminating against smokers does indeed take us down a slippery slope, and this argument will be at the center of future legal battles. If the courts eventually allow companies to ban smokers, why not overweight people as well? You can apply the exact same logic and conclude that overweight people increase insurance premiums, have higher levels of absenteeism and are less productive. Shouldn't I, as an employer, be able to discriminate against overweight people? After all, they make my company less competitive in the marketplace.
And what about people who engage in high-risk activities? I think I'll ban any person who sky dives, flies airplanes, scuba dives, skis, bungee jumps or races cars. Insurance actuaries have identified such people as high-risk and categorize them differently. So why shouldn't I? Come to think of it, all things being equal, I think I'd hire or promote the candidate who didn't have a trampoline in his back yard. And I'm not too happy about over-50 employees who play organized softball. If grandad wants to risk a rotator cuff injury or a torn ACL, fine. But why should I take that risk with him? He gets hurt and I have to hire and train replacement workers. The cost of that is astronomical and makes my company less competitive.
You catch my drift. Where does it stop? In the next few years we're going to see many court cases where employees claim that their company infringed on their privacy. I predict that in most cases the courts are going to rule in favor of the employee. We now have the Americans with Disabilities act to protect disabled people who, in many cases, cost companies a little more and perhaps make them a little less competitive. We have the Pregnancy Discrimination Act to make sure companies don't apply "pure economic logic" when making decisions about pregnant women. The FMLA does the same for people who are ill or who must care for sick loved ones. The courts have decided that, for the better good, companies can legitimately be asked to incur additional costs for certain employees.
Will we someday see the "Lifestyle Choices Act," which gives employees the right to engage in certain lifestyle choices that, yes, result is additional costs for employers, but allow people to be who they are?
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