Is employment discrimination against smokers ethical (and should it be legal)?

by Brian Wolfman

At this blog, we have covered issues of employment discrimination. Our posts have mainly concerned employment discrimination on the basis of someone's characteristic or status. But employers sometimes discriminate against prospective or current employees based on behavior, such as whether the prospective or current employee is a tobacco user. Apparently, an increasing number of employers are discriminating against smokers to lower their costs, among other reasons. Is that type of discrimination ethical? Should it be legal?

Those issues are the topic of a debate just published in the New England Journal of Medicine. One  article, entitled "The Ethics of Not Hiring Smokers," by Harald Schmidt, Kristin Voigt, and Ezekiel J. Emanuel, maintains that employer smoker bans are unethical. Here's the opening:

Finding employment is becoming increasingly difficult for smokers.
Twenty-nine U.S. states have passed legislation prohibiting employers
from refusing to hire job candidates because they smoke, but 21 states
have no such restrictions. Many health care organizations, such as the
Cleveland Clinic and Baylor Health Care System, and some large
non–health care employers, including Scotts Miracle-Gro, Union Pacific
Railroad, and Alaska Airlines, now have a policy of not hiring smokers —
a practice opposed by 65% of Americans, according to a 2012 poll by
Harris International. We agree with those polled, believing that
categorically refusing to hire smokers is unethical: it results in a
failure to care for people, places an additional burden on
already-disadvantaged populations, and preempts interventions that more
effectively promote smoking cessation.

The second article, entitled "Conflicts and Compromises in Not Hiring Smokers," by David A. Asch, Ralph W. Muller, and Kevin G. Volpp, takes a different approach. Here are some excerpts:

Tobacco use is responsible for approximately 440,000 deaths in the
United States each year — about one death out of every five. This number
is more than the annual number of deaths caused by HIV infection,
illegal drug use, alcohol use, motor vehicle injuries, suicides, and
murders combined1 and more than the number of American servicemen who died during World War II. A
small but increasing number of employers — including health care
systems such as the Cleveland Clinic, Geisinger, Baylor, and the
University of Pennsylvania Health System — have established policies of
no longer hiring tobacco users. … These policies engender controversy, and we recognize that they risk
creating or perpetuating injustices. One set of concerns arises from the
fact that tobacco use is more concentrated in groups with lower
socioeconomic status. … However, these policies may also save lives, directly and through their
potential effects on social norms, and these same disadvantaged
populations are at greatest risk for smoking-related harms and ensuing
disparities in health. … These policies also increased the stigma against smoking, so although
there's debate over whether stigma can be used as a tool for good,
ultimately these policies almost certainly contributed to the decrease
in the prevalence of smoking, not just the limits on where it occurs.
For example, the Cleveland Clinic moved to a smoke-free campus in 2005
and stopped hiring smokers in 2007. Reportedly, smoking rates decreased
in Cuyahoga County (where the Cleveland Clinic is located) from 20.7% in
2005 to 15% in 2009, whereas the overall rate in the state decreased
only from 22.4% to 20.3%. … Do hospitals' anti-tobacco hiring policies denormalize smoking and
help communities escape tobacco's burden? Critics may argue that these
claims are disingenuous, akin to a human resource director's saying to
tobacco-using applicants, “Believe me, it's for your own good that I'm
not hiring you.” But in the long run, such policies may indeed be for
their own good. We recognize that these hiring practices are
controversial, reflecting a mix of intentions and offering a set of
outcomes that may blend the bad with the good. We know that many
companies will want merely to continue their current level of
anti-tobacco efforts, but given the threats that tobacco presents to our
communities and institutions, we believe it's time to climb another
rung on the ladder.