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."