When UP recently instituted a policy of not hiring smokers, it had to carve out exceptions in the 13 states across its route system that have “smokers’ rights” statutes on the books.
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this report under "Inalienable Rights" or "No Good Deed Goes Unpunished."
Wherever it goes, the fact remains that when a company becomes involved with an
employee’s health risks, size and/or personal habits, the employer runs the risk
of getting entangled in a web of vague, often conflicting state and federal
statutes. "We’re very, very careful about getting involved in this," says
Barbara Schaefer, Union Pacific’s senior vice president for human resources.
When UP recently instituted a policy of not hiring
smokers, it had to carve out exceptions in the 13 states across its route system
that have "smokers’ rights" statutes on the books. These laws prohibit
discrimination against employees and applicants on the basis of off-duty
smoking. Thirty states in all, says an American Lung Association survey,
currently have similar laws. Two states, Wyoming and Montana, say that off-duty
smoking cannot be a disqualifying factor for employment, but allow employers to
charge smokers extra for including them in their health coverage. The
Commonwealth of Virginia’s smokers’ rights statute applies only to public
employees.
While the issue of the right to refuse to hire or fire
smokers hasn’t moved into the federal courts, the Department of Labor offers
some guidelines on the question of whether a smoking habit is considered an
addiction to nicotine. If it is, it might someday be considered a drug addiction
under the Americans with Disabilities Act. "It’s very unclear. They [the
bureaucrats] tend to flip-flop on the issue," says Lori Shapiro, general counsel
with Employee Learning and Innovations Inc. in Atlanta.
In many states it is within the law to fire or refuse to
hire people who indulge in off-duty consumption of another legal product,
alcohol. This is illegal, however, in Colorado, Illinois, Minnesota, Montana,
Nevada, New York, North Carolina, North Dakota and Wisconsin.
Another major issue is the right of employers to fire or
refuse to hire, for reasons of cost or safety, people whom they deem to be
unhealthily or dangerously overweight. Union Pacific had a serious encounter
with the court system on this topic 20 years ago. In Greene v. Union Pacific
Railroad, a U.S. District Court found that the state of Washington didn’t
intend to include obesity in its statute prohibiting discrimination against
disabled individuals. However, similar suits brought in other states, including
New Jersey and California, have produced the opposite result.
To add to the confusion, only one state, Michigan, and
three cities, Washington, D.C., Santa Cruz, California, and San Francisco,
specifically prohibit job discrimination based on weight. But a number of
lawyers and advocacy organizations feel that all overweight and obese American
adults should be covered by either the Civil Rights Act of 1964 or the Americans
with Disabilities Act of 1990. "These are emerging issues," says Sondra Solovay,
an Oakland lawyer and the author of Tipping the Scales of Justice: Fighting
Weight-Based Discrimination. So far, however, while she contends that
obesity is a chronic health problem rather than a lack of self-control and that
women, African-Americans and Latinos, who tend to be overweight in greater
numbers than the population as a whole, are being unduly penalized, no case
brought by an overweight employee has held up in federal court.
John Pearce thinks that trouble for employers might arrive
from the opposite direction. A professor of strategic management and
entrepreneurship at Villanova University, Pearce recently studied an initiative
by the California Department of Health Services to encourage programs promoting
better health and nutrition in the state’s workplaces. Pearce was impressed
enough to comment, "Maybe employees of companies who aren’t offered these types
of programs will begin suing."
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