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Debates: S Chapman The smoker-free workplace: the case against Tob Control 2005; 14: 144 [Full text] [PDF]

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A Middle Ground: Don't Condone or Condemn, But Let Employers Decide

Ronald M Davis   (27 March 2005)

The slippery slope is not so slippery

Simon Chapman   (29 March 2005)

A Middle Ground: Don't Condone or Condemn, But Let Employers Decide 27 March 2005
Ronald M Davis, Physician Henry Ford Health System Send letter to journal: Re: A Middle Ground: Don't Condone or Condemn, But Let Employers Decide ron.davis{at}ama-assn.org Ronald M Davis	My position in this debate, which has been a difficult one for the tobacco control community, is that I neither condone nor condemn hiring policies that favor non-smokers. However, I do support the employer's right to adopt such a policy if the employer so chooses. I believe this position—which is intermediate between the opposing views espoused by Nigel Gray and Simon Chapman—is the most appropriate and defensible position for tobacco control advocates to articulate. Many years ago the tobacco industry was lobbying forcefully in the United States for passage of state laws banning employment discrimination against smokers. From 1989 to 1993, 25 states enacted such "smokers' rights" laws. Malouff et al published an analysis of those laws in TOBACCO CONTROL in 1993,[1] and these authors provided a nice summary of reasons why some employers might wish to hire only non-smokers: "Why would anyone prefer to hire non-smokers? The answer may differ from organisation to organisation and supervisor to supervisor. Some possible reasons include evidence that smokers as a group have more job accidents, suffer more work injuries, and create more disciplinary problems at work than do non-smokers; a desire of some companies to avoid worker compensation claims for lung damage that could be due to either smoking or an occupational hazard, such as fighting fires; a desire for physically fit employees, for jobs such as police officer and firefighter; a desire to avoid the appearance of hypocrisy, when a smoker works in a job to prevent or treat dependence on nicotine or some other addictive substance; a need to maintain a super-clean workplace free of even the tobacco on the breath of employees; the higher cost of employer-subsidised life, health, disability, and worker compensation insurance when some employees are smokers; the belief that smokers take more sick leave; the fear that occupational toxins such as asbestos may interact with smoking (even if limited to off-work time) to increase risks among employees; and the desire of some religious organisations to hire employees who follow off-work the non-smoking tenets of the religion. Also, the US tradition has long been one of employment at will, meaning that employers can hire and fire whomever they like for whatever reason they want. For instance, employers might choose to hire employees who are relatives, who look or act a certain way, or who seem to desperately need a job. A major limitation on this employer freedom in modern times has been a series of federal and state civil rights laws that prohibit employment discrimination based on race, sex, age, and disability." (citations omitted) As noted by Malouff et al, the US Constitution and federal and state civil rights legislation protect against discrimination based on race, ethnicity, gender, age, and disability. To accord smokers (as a class) the same level of protection against discrimination, as "smokers’ rights" laws do, would be dangerous in my judgment. Simon Chapman dismisses Nigel Gray’s argument that smokers are less productive (as a class) than non-smokers, because "many smokers do not take extra sick leave or smoking breaks." However, "discrimination" based on class averages may be justifiable when measurement of individual behavior or risk is impractical or impossible. For example, I pay much higher automobile insurance premiums because I have two teenage sons who drive, even though they may (theoretically) be the best drivers around. Installing alarm systems and smoke detectors in homes reduces premiums for homeowners’ insurance, even though some people don’t use or maintain these devices after installation. Insurance companies assess risk and develop fees based, in large part, on actuarial data and aggregate experience. Employers may wish to use the same approach. It is more practical for employers to refuse to hire ALL smokers, than to refuse to hire only smokers who have worse health or higher risk of disease. In defense of his position, Simon offers the analogy that employers might refuse to hire younger women because they might get pregnant and take maternity leave, and more time off later to look after sick children. In the US, that policy would constitute illegal discrimination based on age and gender, and would violate the spirit (if not the letter) of the federal Pregnancy Discrimination Act.[2] The analogy is further weakened by the fact that age and gender are inborn and immutable characteristics (except for transgender surgery), whereas smoking is neither. Yes, of course, smoking is addictive; but effective treatments exist and millions of smokers have been able to quit. Simon also presents a "slippery slope" argument that "employers might ... draw up a check list and interrogate employees as to whether they engaged in dangerous sports, rode motorcycles, or voted for conservative politics." A philosophy professor has called this type of argument an illegitimate application of reductio ad absurdum.[3] Yes, all manner of discrimination in employment occurs today, and will occur tomorrow, but most of that discrimination is sub rosa. A restaurateur may not hire waiters with purple hair and pierced lips, even if those characteristics aren’t mentioned in the company’s employment manual. The issue at hand, though, is EXPLICIT "discrimination" spelled out in corporate policy. Weyco, Inc, a health-benefits management company based in my home state of Michigan, informed its employees about the company’s new "smoker-free" workplace policy 15 months before implementation.[4] It’s hard to imagine widespread adoption of similarly announced hiring policies based on Simon’s example of political ideology. (A rare exception might occur when such ideology is central to the job’s responsibilities—for example, editorial writers for conservative newspapers.) Another problem with this "slippery slope" argument is that it implies—wrongly, in my judgment—that employers cannot be trusted to adopt hiring policies based on a careful consideration of the merits and demerits of each policy option. A health insurer may decide to "discriminate" against smokers—and smokers only—for reasons outlined by Malouff et al.[1] The National Basketball Association’s standard player contract prohibits motorcycle riding, a recent violation of which caused disastrous consequences.[5] Contracts with theatrical stars often prohibit dangerous activities such as hang gliding and skydiving because of the difficulty of hiring an acceptable substitute when injuries occur.[6] In each case, the employer chooses hiring policies tailored to its own needs and circumstances, and cascades of discriminatory practices rarely (if ever) flow down that less-than-slippery slope. Sugarman discussed many types of off-duty worker behavior that may clash with employers’ interests, including personal (social/sexual) relationships, civic and political activities, leisure activities, moonlighting, characteristics of daily living (eg, health behaviors, personal appearance), and illegal acts.[6] The rationale for addressing these behaviors in corporate hiring policies may be strong in some cases and weak in others. But as Seligman noted, "Employers are not always right, but they are guaranteed to do better than regulators and judges in deciding which employees will be the most productive."[7] Currently 30 states in the US have "smokers’ rights" laws on the books.[4] Nevertheless, an estimated 6,000 employers no longer hire smokers, according to the National Workrights Institute.[8] That number may seem large, but it’s only a small fraction of the 20.8 million businesses in the country.[9] Smokers can still find jobs, and employers can decide for themselves whether to employ them. Tobacco control advocates should oppose laws that give smokers special protection similar to the protections afforded to groups defined by race, ethnicity, gender, age, and disability. Ronald M. Davis, MD Director Center for Health Promotion and Disease Prevention Henry Ford Health System Detroit, Michigan, USA 1. Malouff J, Slade J, Nielsen C, Schutte N, Lawson E. US laws that protect tobacco users from employment discrimination. Tobacco Control 1993; 2: 132-138. http://tc.bmjjournals.com/cgi/reprint/2/2/132.pdf 2. US Equal Employment Opportunity Commission. Facts about pregnancy discrimination. http://www.eeoc.gov/facts/fs-preg.html (accessed 25 March 2005) 3. Thompson B. Bruce Thompson’s fallacy page: slippery slope. http://www.cuyamaca.net/bruce.thompson/Fallacies/slippery.asp (accessed 25 March 2005) 4. Peters JW. Company’s smoking ban means off-hours, too. New York Times, 8 February 2005: C5. 5. Dodd M. Bulls' Williams likely to miss season after accident. USA Today, 24 June 2003. http://www.usatoday.com/sports/basketball/nba/bulls/2003-06-23-williams- injuries_x.htm (accessed 25 March 2005) 6. Sugarman SD. "Lifestyle" discrimination in employment. Earl Warren Legal Institute, 27 June 2002. Paper 1. http://repositories.cdlib.org/ewli/1 (accessed 25 March 2005) 7. Seligman D. The right to fire. Forbes, November 2003. http://www.forbes.com/forbes/2003/1110/126.html (accessed 25 March 2005) 8. Ozols JB. A job or a cigarette? Newsweek, 24 February 2005. http://msnbc.msn.com/id/7019590/site/newsweek (accessed 25 March 2005) 9. US Census Bureau. 1997 Economic census: minority- and women-owned businesses, United States. http://www.census.gov/epcd/mwb97/us/us.html (accessed 25 March 2005)
The slippery slope is not so slippery 29 March 2005
Simon Chapman, editor Send letter to journal: Re: The slippery slope is not so slippery simonchapman{at}health.usyd.edu.au Simon Chapman	Ron Davis finds my analogy weak when I liken employers not hiring smokers (because as a class they take more time off work) to not hiring women of child-bearing age (because they may become pregnant or take time off for childcare). He notes that in the USA (as indeed in many nations) there are laws outlawing labour discrimination on the basis of sex or age, but not discrimination based on smoking status. Some nations also forbid discrimination based on sexual preference, race and religion in such laws. He adds that sex and age are immutable, whereas smoking is at least in principle amenable to choice. I would defend my analogy by pointing not to the differing legal status of smoking and sex (or age) discrimination, but to the parallel matters of principle that have been responsible for the outlawing of various forms of discrimination. We have laws preventing sex, age and race discrimination because to allow discrimination would be to allow non- relevant and unjust barriers to intrude in decisions about capability and suitability to do a job. This principle is precisely that which I believe applies to the class “smokers”. As I argued, while it is true that smokers as a class take more time off (to smoke and when ill) than do non-smokers, this is not the case for every smoker. In my response to Nigel Gray, I was careful to emphasise that employers have every right to select staff whose presentation and skills accord with the needs of employers. I would concur completely with Ron’s examples of some restaurateurs being unwilling to hire people with strange appearance as being legitimate (although in my suburb, such appearance is fast becoming mandatory!). However, such policies are all about work performance and company image. Hair colour is seldom changed every evening, but many smokers only smoke away from work. Ron raises the practice of insurance companies levying higher policy rates based on “class averages” (such as higher premiums for young drivers, despite many individual young drivers having excellent driving records and abilities), and argues that by the same reasoning, employers could take the same “class risk” attitude to smokers. Again, I believe his argument here is imperfect. It would, as he argues, be “impractical or impossible” to predict which young drivers will crash, but it is not impractical or impossible for an employer with good management systems and skills to know which smoking employees are a drain on a company and which are not. Indeed, many insurance companies annually adjust individual policies depending on the insured person’s claims in a preceding period. I have no problem whatsoever with an employer insisting that employees do not smoke at work for reasons of corporate image, safety or of course harming others. But what of the many highly valued and productive smokers who only smoke away from work – the people I am talking about in this debate? If this debate were oxygenated and it became common practice for employers to not hire smokers, it is conceivable that this “movement” would add extra pressure on smokers to quit. That would be a good outcome, but it would be achieved by coercion which I do not regard as ethical in the absence of preventing harm to others. Ron also rejects what he calls my slippery slope analogies whereby employers would -- by evoking the same concerns -- have the right to enquire about whether employees engaged in high risk activities such as skiing, motor-cycle riding, or body contact sport such as the game of rugby (in which Australians dominate all other nations!), all of which significantly increase the risk of time being taken off work. While Ron’s philosophy professor shows how slippery slope arguments can violate logic, I remain unconvinced that there are any errors in logic in an employer reasoning “smokers are at higher risk of illness and time-off work. I will not hire them” and “motorcyclists have a high risk of injury and disability. I will not hire them.” My facetious example about voting for conservative politics was intended as a reductio ad absurdum example of how far employees might take an assumed right to know about out-of-working -hours activities that might impact on employment. I believe that out-of-hours smoking should be regarded as relevant to a decision on employment of an individual (hiring or firing) only when it can be shown to be affecting work performance. I have few problems with an employer firing an employee whose record of sick leave was significantly higher than normal, particular where that sick leave was attributable to a smoking which I agree with Ron, should not be construed as something that is impossible to stop.