Employers are prevented in Canada from refusing to hire someone on a number of discriminatory grounds unless they directly relate to the job requirements. These categories include race, religion, gender, or political affiliation.
But what about lifestyle habits? Can employers refuse to hire someone based on the fact that they smoke, concluding that this individual in the long-term will have more sick days, and will have a shorter life expectancy?
Smokers Need Not Apply
It might seem strange, but that’s what is happening in Florida. Sarasota County officials announced that they will no longer hire smokers, who place a burden on taxpayers through health insurance.
The Supreme Court of Florida upheld a similar ban in 1995, when North Miami refused to hire smokers in The City of North Miami v. Kurtz.
Michelle Tyler describes the issues around the case in the Georgetown Law Journal,
…all prospective city employees to sign an affidavit stating that they had refrained from using tobacco products for the prior year.
…the city’s interest in reducing the burden on taxpayers is not only legitimate, but also compelling enough to override the individual’s privacy right, whether considered a fundamental right or merely a protected interest. This holding extends the Grusendorf rule that bona fide job requirements may override a privacy interest in smoking while off duty.
The heavy public costs associated with a smoking workforce support the court’s holding that the city had established a compelling interest sufficient to satisfy a strict scrutiny analysis. Health and productivity costs associated with smoking and borne by the employer are significant. Smokers more often suffer from chronic illnesses and are more susceptible than nonsmokers to acute health conditions. They incur more medical costs, require more hospitalizations, and visit physicians more often than nonsmokers. Productivity costs related to smoking include higher absenteeism; an injury rate double the nonsmoking rate due to loss of attention, coughing, and similar distractions; and lost time in the workday due to “cigarette breaks.” Together, these costs amount to significant losses to employers. For example, in 1992, Banc One reported that each smoking employee costs the company up to $1,100 more annually than its nonsmoking employees. Additionally, when an employer eliminates smoking on company premises, the company decreases structural maintenance and cleaning costs and derives savings from the reduced strain on heating and cooling systems which filter fewer smoke particles.
But could this happen in Canada?
The Canadian Council for Tobacco Control does cite Kurtz on their website.
Where Do we Stop?
The Soapboxblog raises the slippery-slope argument,
…ought we not then exercise this premise for private sector employers who wish to not employ individuals who are overweight?
Maybe said employers wish not to employ individuals with diabetes, a history of high cholesterol, a history of high blood pressure, genetic predisposition to breast cancer or cervical cancer, etc. or, as is more abundantly obvious, individuals who eat their weight in trans-fatty goods on a daily basis.
Maybe those same employers wish not to employ workers who lead “high-risk” lifestyles too. Come to think of it, the aforementioned list might just as well serve as a precursor for the latter argument as well; that being the healthier workforce argument.
And What About the Poor Farmers?
Even more compelling is the plight of tobacco farmers in Ontario, who are hitting tough times. Discrimination against smokers in the workplace would only make the farmers’ financial situation worse.
But tobacco farmers are putting their blame squarely on Conservative MP, Diane Finley. They are joined by residents in Caledonia, who are concerned that Aboriginal land claims will make their property value plummet.
What’s interesting is that members of her riding in Haldimand—Norfolk are seem to be taking it out on her gender,
When she runs again, I am going to have a sign on my lawn that says `Never ever vote for this woman again.’
So while the right of smokers to be hired may be scrupulously upheld, advances of women in the workplace (and politics) may take second place.
Hillary would not be pleased.