The Right to Discriminate Against Smokers


The New York Times reports that "more hospitals and medical businesses in many states are adopting strict policies that make smoking a reason to turn away job applicants." The Times concedes there are "no reliable data on how many businesses have adopted such policies," so the evidence of a trend is thin. But the shift from smoke-free to smoker-free workplaces (assuming it is in fact occurring) is interesting because it provokes objections not only from cigarette manufacturers (who years ago lobbied for bans on employment discrimination against smokers, which most states have adopted) but also from civil libertarians and even some anti-smoking activists. Michael Siegel, the Boston University public health professor who regularly criticizes anti-smoking groupthink, pseudoscience, and extremism, says:

If enough of these companies adopt these policies and it really becomes difficult for smokers to find jobs, there are going to be consequences. Unemployment is also bad for health.

The American Civil Liberties Union and the National Workrights Institute likewise want to protect smokers from employment discrimination. Lewis Maltby, president of the latter group, says:

There is nothing unique about smoking. The number of things that we all do privately that have negative impact on our health is endless. If it's not smoking, it's beer. If it's not beer, it's cheeseburgers. And what about your sex life?

Reinforcing Maltby's slippery slope argument, the head of the Cleveland Clinic, which pioneered the "no smokers need apply" trend (assuming it really is a trend!), "mused in an interview two years ago that, were it not illegal, he would expand the hospital policy to refuse employment to obese people." Even the American Legacy Foundation, the anti-smoking group funded by the Master Settlement Agreement that the states reached with the leading tobacco companies in 1998, says job discrimination is unfair to smokers because (as the Times puts it) "refusing to hire smokers who are otherwise qualified essentially punishes an addiction that is far more likely to afflict a janitor than a surgeon." Ellen Vargyas, the group's chief counsel, adds:

We want to be very supportive of smokers, and the best thing we can do is help them quit, not condition employment on whether they quit. Smokers are not the enemy.

Anyone who has paid any attention to anti-smoking propaganda over the years could tell you that smokers are the enemy whenever it's convenient. They are portrayed as victims in product liability suits and pleas for limits on tobacco advertising but villains in campaigns for higher cigarette taxes and ever-more-comprehensive smoking bans. If anti-smoking activists truly believed that smokers are helpless nicotine slaves, why would they support policies that "punish an addiction" through punitive, regressive taxes and restrictions that make it increasingly difficult for these addicts to get their fix (for example, by banning separate smoking rooms in workplaces and smoking near the entrances of office buildings)?

In any case, these objections, however sincere, strike me as fundamentally misplaced. Employers may well have sound financial reasons for declining to hire smokers. Although smokers seem to have lower lifetime medical expenses than nonsmokers do because they tend to die sooner, they may be more costly to insure during their working careers and more likely to take sick days. In addition, medical businesses such as hospitals may see modeling healthy behavior as part of their missions and therefore may want to avoid hiring nurses or orderlies who smoke. Whatever their reasons, they should be free to apply the criteria they consider appropriate; freedom of contract means people should not be forced to hire smokers, any more than they should be forced to hire nonsmokers.

The real slippery slope threat comes not from increasingly nosy employers but from an increasingly intrusive government that considers promoting "public health" part of its mission and interprets that concept broadly enough to encompass everything people do that might increase their own risk of disease or injury. That totalitarian tendency is reinforced by the government's ever-expanding role in health care, which transforms a moralistic, pseudo-medical argument into a fiscal imperative by giving every taxpayer a stake in his neighbor's lifestyle. A smoker or fat guy turned away by one employer can always look for work elsewhere, but citizens subject to the state's coercive health-oriented interventions cannot easily pick a different government.