Can Employers Discriminate Against Smokers?

It may be legal to smoke tobacco, but that doesn't mean your employer can't hold it against you.

It may be legal to smoke tobacco, but that doesn't mean your employer can't hold it against you.

Smoking tobacco may be unhealthy, but it’s your choice whether to do it or not. And although it may be an unpopular choice these days, the last thing you’d expect is your career suffering because of it. Believe it or not, many states, as well as the federal government, allow employers to decide whether or not they want to hire smokers and work with smokers.

No Federal Protection

Extensive federal laws protect certain groups of people, such as immigrants and the disabled, from various types of discrimination in the workplace, but no laws exist to protect workers who smoke from employment discrimination. Since smokers aren’t a protected class under the Equal Protection Clause and the government doesn’t recognize smoking as a protected liberty or right, employers who refuse to hire you or subject you to treatment that puts you at a disadvantage in the workplace are not breaking any federal laws. But depending on whether the state you work in has anti-discrimination laws that protect smokers, you may have legal rights that guarantee your freedom to use tobacco without discriminatory interference by your employer.

States Allowing Discrimination

Because there's no federal protection for smokers, every state has the authority to establish its own laws preventing employer discrimination against employees who smoke. As of this writing, 21 states don’t have legislation giving employees who smoke legal rights against an employer who discriminates against them. For example, Washington state is home to Alaska Airlines – a company well-known for its anti-smoking culture. At Alaska Airlines, job applicants who interview for positions in Washington or another state that doesn't protect smokers from employment discrimination, must submit to a test that detects nicotine use within the last six months and receive a nicotine-free result before any offer of employment is made.

State Anti-Discrimination Laws

The other 29 states and the District of Columbia do, however, have laws in place to protect smokers from employer discrimination. Seventeen of these states and the District of Columbia expressly prohibit discrimination against employees who legally use tobacco when not at work. Eight other states have enacted broader legislation that protects employees who use any lawful product – not just tobacco. The laws of California, New York, Colorado and North Dakota provide the greatest levels of protection to all employees by forbidding employers from making job related decisions based on lawful activities their employees engage in when off duty. However, your rights in these jurisdictions don’t require employers to accommodate your smoking while at work.

Smoking At Work

Many states also want to protect the health of their residents who don’t smoke and have enacted laws that prohibit smoking at work. Vermont and New York, for example, don’t allow you to smoke indoors at any facility where people are working – regardless of whether it’s a government building or not. Some employers even take it a step further and have designated smoking areas located away from building entrances. If you violate a state law or your employer’s smoking policies, you may be penalized for doing so, and it would not be considered discrimination.

 

About the Author

Michael Marz has worked in the financial sector since 2002, specializing in wealth and estate planning. After spending six years working for a large investment bank and an accounting firm, Marz is now self-employed as a consultant, focusing on complex estate and gift tax compliance and planning.

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