October 31, 2005
Women fired for being smokers
A while ago, much news was made by an employer who decided he refused to continue employing smokers. He told his employees that they had some time to quit, and if they smoked past a certain date, they could pack up their things and find a job elsewhere. One of the reasons he did so was for his employee health insurance premiums, but he also considered it to be a disgusting habit and was upset about the extra time that smokers would take in their regular “smoke breaks”.
As a former smoker, I have some issues with this. If I were a business owner, I wouldn’t hold this policy. I might restrict employees from smoking on-site or if they will be dealing with a customer, but what an employee does on his own time is just that– his own time. But at the same time, I’m not going to tell someone else who he can and cannot employ. Well, this employer is back in the news. Some of his employees didn’t quit smoking, so he fired them.
Fellow LLP member Let Darkness Fall seems to have a problem with this:
If you read the full story, it seems this is the usual case of an employer supposedly trying to limit health related liabilities, a concept I do not object to. In general, smokers have more health issues and employers don’t like them causing health insurance premiums to increase. What I don’t understand is why the employers don’t mitigate this liability by either passing on the cost of the higher premiums to smokers or by not offering them health insurance. If people want to smoke while away from the office, don’t fire them for it; simply let them pay for the increased costs. Smokers already pay more for life insurance (if they directly buy a policy unrelated to their work benefits) so why not let them pay more for their medical insurance?
How about, why don’t you let the owner of Weyco decide who he does and does not want to employ, based upon the criteria he determines. This isn’t government here, nobody is forcing these employees to work for Weyco. He has in no way infringed upon their “rights”, because the only right here is the right of contract. He has determined that one of the terms of him extending an offer of employment is that the potential employee doesn’t smoke. For current employees, this policy was announced 15 months in advance of it taking effect, and he offered assistance programs to those employees who wanted to quit.
Now, I’m not saying whether requiring your employees not to smoke is a good or a bad policy. I used to smoke. I try very hard not to be the sanctimonious ex-smoker who tells all his smoking friends about how badly they need to quit. I hated when people did that to me, and I don’t do it to others. But this isn’t about smoking. This is about freedom. And freedom is letting people do some things that you think they shouldn’t do, as long as it doesn’t violate the rights of others. And regardless of what you might think of employment, nobody has a “right” to force me to employ them on any terms other than my own.
The Unrepentant Individual linked with Smokers are Personas Non Grata
Lest Darkness Fall linked with Revisiting Employer vs Employee Rights
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Brad, One of the reasons that TF is a “one horse operation” is because of this very thing. We don’t want to be told who we can and cannot employ. We don’t want to be told that we cannot fire someone if we deem it necessary. It’s just easier being your own boss….This story just proves our point.
Brad,
As I understand it, Federal law has prohibitions about charging the same class of employees different amounts for their health insurance, or not offering them uniform benefits.
Thus, the only choice he probably has is to either offer the smokers and non-smokers the same thing, which of course is what he is trying not to do, or fire the smokers. He is allowed to discriminate on smoking status in employment. He is not allowed, as I understand it, to discriminate on smoking status in benefits.
BTW, the productivity numbers between smokers and non-smokers is not about “smoking on your own time.” The smokers in my building take more breaks. These breaks are social outings down an elevator to get to the smoking congregation area outside the building. There are some exceptions of smokers extremely productive when not on break, and the breaks don’t inhibit their output compared to the avg. employee. Most, however, are similarly or less productive than average (per hour worked), but not working as many minutes. Thus, less productive.
At my place of employment, we are eligible for a yearly “smoking cessation” benefit if we do not smoke.
Of course, the smokers just mark on the box that they don’t smoke and take the benefit, but that’s nearly beside the point.
On a more serious note: Brad, if employers are allowed any criteria whatsoever, then “women who have a chance of becoming pregnant” (i.e. “women ages 16-40″) would be very widely discriminated against in hiring. After all, it’s “lost productivity with all that darned morning sickness, doctor visits, and don’t get me started on maternity leave!” Right?
Sam,
If you were a business owner, wouldn’t you be leery of hiring a woman who is planning on having a child in the next 2-5 years? Several months of maternity leave disrupts quite a lot in a company, especially in industries and job functions where someone’s job might be crucial to certain projects finishing on schedule.
Now, there’s a different between “having a chance” and “intent”. For example, my employer didn’t mind that I rode a motorcycle. However, riding that motorcycle put me at a greater risk of horrible death or accident than non-motorcyclists. They had to make a choice to either hire someone who didn’t ride that motorcycle, hire me but tell me that I cannot ride a motorcycle, or choose to hire me anyway. It’s illegal to ask a female prospective hire whether or not she intends to have children, but should it be? If I had a choice, I’d much rather hire a qualified woman who didn’t intend to have a child in the near future than one who did intend to have a child.
Again, I bring up the question of freedom. As an employer, do I have the right to deny employment based upon my terms, or should those terms be dictated to me by the government?
Again, I bring up the question of freedom. As an employer, do I have the right to deny employment based upon my terms, or should those terms be dictated to me by the government?
Of course you should have your freedoms, Brad. You can feel free to set up your own country with its own Constitution and its own laws and social contract. Here, the social contract holds that a woman’s freedom to have a family (for example) is more fundamental than your freedom to use whether or not she is planning to have a child in deciding whether you will hire or not.
Freedom of association is not the prime freedom in the United States. Perhaps it once was, and perhaps we could argue that it was the prime motivating factor in this country’s formation, but like federated powers and limited government, it has gone the way of the dodo, in the name of other “rights”.
This will not be reversed overnight, and millions and millions of Americans do not wish it to be, either. A return to the “laboratory of the states” concept of federated or confederated states is a good model — but don’t go proposing a return to “Confederacy” any time soon, Brad. We like you alive.
Sam,
I have a moral objection to someone telling me who I do and do not have the freedom to hire and for what reasons. That being said, I understand that the game is played by rules often out of my hands, and that my freedom is of little consequence to this current government. I’m willing to play the game, as I find it worth it to go along rather than trying to move somewhere I can go and live “off grid”. But I call them as I see them, and as long as I still have this right of free speech, I intend to keep doing so.
I got into a similar debate the other night. In Georgia, to get a driver’s license you need to provide a thumbprint. I don’t like it, I think it’s a bunch of bull-crap, and it serves no legitimate purpose to improve the safety of our roads. But if the question is to accept that or run the risk of getting pulled over and fined heavily for driving without a license at all, I’m going to choose the lesser of two evils.
Some may think it’s their duty to manage my life for me. That may be telling me who I can hire and for what reasons. That may be telling me whether or not I have to wear a seat belt in a car. That may be telling me that any medicine has to be approved by the FDA or I can’t take it, regardless of my own risk/reward calculation. In every case, I may accept that the government has taken that power and there is little I can do to change the situation, but I’m never going to say that they have the right to control me.
Revisiting Employer vs Employee Rights
Rebuttal from Lest Darkness Fall:
If we take this logic to the farthest extreme, the so called “right of contract” would trump basic human rights. What if Weyco decided to fire all employees who have not been surgically sterilized in order to make s…
[...] TMH’s Bacon Bits notes this story about Scotts Miracle-Gro, following in Weyco’s footsteps and declaring that workers who smoke will be fired: Quit smoking, or you’re fired. [...]