Are smokers protected?

scottofstead · November 2003

I just learned that one of my management team is asking candidates if they smoke as one of his interview questions. We're in Washington State. Any thoughts from the collective wisdom on whether or not he's causing us trouble? Thanks to all!

Whatever · November 2003

Why is he asking? Was he told to ask?

Don D · November 2003

Scott: Four questions; Are you in HR? What are your thoughts? What would you advise if the manager had asked you about his intention to ask these questions? What's the law in your state?

scottofstead · November 2003

First, he's the company president. He's asking because he believes that smokers are going to be less healthy and less productive than non-smokers, and he wants to rid the company of people who smoke. He wants to start by not hiring them in the first place. Yes, I'm HR; the law is quiet in WA (not silent, but ambiguous); and I haven't been able to find anyone to give me a definitive answer. I think that absent a policy of not hiring smokers, we are probably treading on thin ice. If we implement a policy of not employing people who smoke, it will cause disruption (including instituting a smoking cessation program for those who need it), and most likely will result in our terminating some associates who are unable to quit. My real issue at this point is, could a candidate whom we decline to hire on the basis of his/her smoking bring any cause of action against us? I don't think so, but I'm wondering if anyone else sees it differently.

Parabeagle · November 2003

I haven't been able to find anything specifically protecting smokers in Washington State. Here in Oregon, there is a prohibition against discriminating against those who lawfully use tobacco products, but I can't find any similar statutes for Washington. So I think what the co. pres. is doing is fine up there, but would not be if you were in Oregon. I think there are only about three or four states that have smoking protections. It seems to me, though, that if you have a number of smokers the employee relations angle is going to be a tough one to deal with.

Also, the assumptions your co. pres. makes about smoking and health are not universal. I know many smokers who miss less time due to illness than nonsmokers and I would be hesitant to use this argument to sell a policy change to the employees.

Don D · November 2003

It has been ruled likewise in MS that you cannot lawfully require that employees be non-smokers since tobacco use is lawful itself. I thought this was a universal application of the law, but maybe not. Just be glad he's OK with Snicker's eaters.

Brad Forrister · November 2003

Several states do have prohibitions on asking such questions, although Washington doesn't. Some of our editors counsel against asking the question anyway - do a search on "smoking" and "interview" behind the password and you'll see some articles to that effect.

Washington State seems to have a bit more anti-smoking public policy bias than some, so you're probably safer asking the question there than in many other states.

Brad Forrister
Director of Publishing
M. Lee Smith Publishers

Parabeagle · November 2003

>Washington State seems to have a bit more
>anti-smoking public policy bias than some, so
>you're probably safer asking the question there
>than in many other states.

Yeah, you just can't trust those tree-hugging, health-conscious, Birkenstock-wearing Washingtonians to let you have any fun. x;-)

mwild31 · November 2003

Hi scottofstead - he's causing trouble.

There are new laws working their way through the state House & Senate that would prohibit smoking in public places - and I really believe it's only a matter of time before they get passed. As these laws, the lawsuit our attorney general was involved in against tobacco companies & public opinion continue to turn against smokers, I think it's only a matter of time before more and more applicants will be denied employment if they answer yes to the 'do you smoke?' question. As Brad and Parabeagle stated, it's okay to ask the question - it's even okay to not hire smokers.

Here's a few reasons why he's causing trouble. Most people, especially smokers, know that if they answer 'yes' to that question they won't get hired - so they lie - good people or bad people - they just want a job. He's also causing trouble because he's the only one asking. He's causing trouble because it doesn't sound from your post as though there's a company policy/consensus about smokers. Although it may not be against the law - it's remarkably poor management.

Final thought, he says that he doesn't want to hire smokers because of the health risks - does he also discriminate against fat people, type 'a' personalities, single mothers, people over 50, men who divorce later in life - all of these groups have also been linked to heart disease, the largest killer in the nation, and/or early death. I won't kid you, employees with cancer eat up the health premiums & can cause the rates to go higher, I currently have 2 employees with cancer, one breast & the other prostate - I swear, neither smokes nor has smoked in their lives - apparently, it's genetic. So when hiring, should I ask if anyone in the applicant's family has had cancer?

I mean, if he's citing health concerns against hiring one particular group - let's not be a hypocrite - let's go for them all.

It's a big debate - with a lot of ramifications - if I can make a simple-minded argument - just think what a good attorney could do as well - maybe not now - but in the future. Have the debate at your company - make the decision & then make sure all follow the policy.

TN HR · November 2003

I've seen a lot of good advice given. Honestly, I have not stayed on top of pending legislation as it affects tobacco in the workplace.

Another angle from which to look at this would be to analyze any adverse impact this may have on certain groups or classes. You may find yourself looking at this in a totally different light.

Just my thoughts............

Gene

Are smokers protected?

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