Hiring discrimination based on smoking

The question has been raised if it is legal to discriminate among applicants based on whether one is a smoker or non-smoker. Does anyone have any information on that?

Comments

  • 5 Comments sorted by Votes Date Added
  • Are you discrimating due to an inability to perform a BFOQ? Or are you discrimating due to "expected" costs associted with your medical plan? Smoking is not illegal,nor am i aware of any studies that indicate smokers are poor job performers. And if the applicant can perform the essential job functions, I would not touch this with a 20 ft. pole.
  • Be sure you have a communicated policy in place regarding the use of "tobacco products" during work hours...not just "smoking".
  • In KY it is illegal to discriminate against smokers or non-smokers. See KY 344.040 on employment discimination. See summary below from HR Hero state law section:

    Summary: 07/01/1997. KY 344.040. Discrimination by employers. It is an unlawful practice for an employer: (1) To fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the individual's race, color, religion, national origin, sex, age forty (40) and over, because the person is a qualified individual with a disability, or because the individual is a smoker or nonsmoker, as long as the person complies with any workplace policy concerning smoking; (2) To limit, segregate, or classify employees in any way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect status as an employee, because of the individual's race, color, religion, national origin, sex, or age forty (40) and over, because the person is a qualified individual with a disability, or because the individual is a smoker or nonsmoker, as long as the person complies with any workplace policy concerning smoking; or (3) To require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products outside the course of employment, as long as the person complies with any workplace policy concerning smoking.

  • TO: Lab

    Thank you. It sounded like dangerous territory to me, but I had never actually seen legislation pertaining to this particular topic. This gives me more than a gut feeling with which to respond to the manager who raised the question.
  • The employer has the right for a smoke free environment. If this is the issue, then there should not be a problem. If the employer states only non-smoker will be hired, I believe there must be another issue along with the smoking issue, and then there may be a medical question, which could lead to questions of disability. Please share other responses.
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