Source Guru

Discrimination?

by on Aug.07, 2008, under Geeky, Personal

Some of you may know that I’m looking for a new job.

Well, anyway, I had a Phonecall from Kalamazoo Reynolds earlier, who, 3 questions into the interview asked.

“Do you smoke?”

“Yes”

“Ok, then please feel free to re-apply if you ever give up, we have a company policy in place that we do not employ smokers”

Is this legal?


72 Comments for this entry

  • d2kx

    Well, the company is free to give jobs to whoever they want, of course this is legal. And to be honest… I can understand this policy.

  • LaserJock

    As far as I know it is legal (in the US anyway), but awfully weird. I can see not allowing smoking on the job, but not even employing a person if the smoke is really odd. The Equal Opportunity Employment Commission says you can’t discriminate based on: sex, race, age, religion, or ethnic group, or individuals with disabilities.

  • Vyper

    strictly speaking, yes, smokers are not a legally protected demographic.

  • Geoff

    Yes, it’s a great idea! There should be no thing as “smokers’ rights”. You chose that habit, so don’t expect others to be fine with it.

  • Shaun Marolf

    Unfortunately yes its legal

  • CoolGoose

    Just tell them that you quit smoking and smoke at home :) )

  • Tom

    It is most defineately NOT legal. That’s one.

    Second you could make it a “religious” issue. Aren’t you native american ? Lots and lots of cultures (and religions) smoke, sigarettes may not be very much used, but pipes are present in just about any religion. Even in Christianity there are (ancient) rituals that involve smoking. Using this would be lying, obviously, but then again, most religious lawsuits are lies too, and they get lots of money sometimes.

    That said, unless you really still think that “human rights” law is applied equally to all citizens, I wouldn’t try it. After all this is discrimination in order to advance “progressive” ideals and the judge will be reluctant, to say the least, to stop that.

    Or you could restart your application … and lie. There’s no law against that.

  • jegHegy

    Legal in the EU as well.

  • suscal

    So quit already, it’s stupid anyway. And you know that!

  • Tomaz

    IT’s legal in UK, and it’s ‘legal’ in the PT_BR meaning of the word also ;P

  • Dale

    Everybody knows you should lie to that question.

  • Rsh

    It would be really stupid if it was illegal. Imagine yourself running a company and you have a damn right to employ whoever you want! It’s *your* company and you know best how to manage it. At the previous place I worked smokers usually took twice the breaks the non-smokers did, so such policy is quite understandable – but IMHO it’s quite stupid in a company which relies heavily on education and skills of certain person .. in any case, life goes on. :)

  • markrian

    I must ask – are you offended by their policy?

  • Diggs

    The certainly can…especially here in the states if the company provides insurance. Plus, there could be other considerations such as they may have employees with sensitivity to smells (perfume and such…and smokers tend to…well…smell like smokers).

  • 6r00k14n

    I am not a lawyer, but I have taken quite a few classes on Business Management and Constitutional Law. The answer to you question of “Is this legal?” is yes, and here is why:

    1) An employer may not discriminate based on gender, unless safety is a legitimate defensible explanation.
    2) An employer may not discriminate based on religious beliefs.
    3) An employer may not discriminate based on age, but this only actionable if you are over 50.
    4) The Americans with Disabilities Act forces employers to make reasonable accommodations (at their own expense) to employees with disabilities (if alcoholism is a disease, why isn’t nicotine addiction), and they cannot discriminate, unless safety is a legitimate defensible explanation.

    Are you getting the point? There are a total of 9 protected classes in the U.S., and smokers are not any of them, neither are white males or homosexuals.

    Until I read your post, I thought that the worst thing to be in the U.S. was a terrorist, but apparently, it is a white homosexual male smoker. My guess is that you would be happier work for a company that is not myopic, like that one.

  • Mez

    Yes, I am. Personally, I think it’s my own right and own freedom to smoke if I wish. I can understand their point of view, but I can also understand that I’m a considerate smoker.

    I also find, personally, that that 5/10 minutes outside when I’m having a cigarette generally, when coding, allows me to re-focus my mind. I’m sure my previous employers will tell you that I’ve generally come in from a cigarette break asking questions, or proposing new ideas. It’s for the same reason that I run rsibreak. Whether I was a smoker or not, I’d still have those breaks (to go make a cup of tea, or something similar) that allow my mind to calm down and re-focus. Generally I’ll come back from a smoke break and be more productive than before I went on it.

    Also, I find it gives me a chance to have a walk around, and stretch my legs, which, with my disability, is pretty important for me.

    I agree with all the other posts here, smoking is bad, but it’s my choice to do so. I’m not forcing you to. I have to go outside… it’s MY choice (and I’m planning to give up anyway!)

  • jim

    Ianal, but I hope it’s legal. No one should have to deal with smokers. They are annoying and a health hazard to everyone around them. They are also inconsiderate (as a group, not specifically you). They light up when they want without regard to who is around them. They also seem to think it’s okay to toss their trash wherever they want. I hope more and more people adopt positions that discriminate against smokers. I’d like to see it illegal.

  • Marius Gedminas

    I don’t smoke, but one of my coworker smokes. It’s really unpleasant to do pair programming (or meetings, or ad-hoc hallway discussions) when he comes back after a smoking break, stinking.

  • Alan Pope

    As an aside.. I recently had to visit a specialist medical practitioner with my daughter. She had a condition which was exacerbated by cigarette smoke. Neither my wife nor I smoke, but other family members do. The Professor we saw said that even if family members smoke outside, when they come in they continue to breathe out very nasty particulates over the rest of the family.

    Passive smoking doesn’t doesn’t mean someone has to be sat next to you for you to be inhaling their exhaled nasties. It can happen for some time after too.

    Picture yourself as one of the co-workers, sat near a smoker. Is it fair on them that you come back from a cigarette break and breath that over them?

    If I were employing people, after checking the legality, I too would not employ smokers. For the above stated reason and also because I think they vastly under-estimate the amount of time they spend away from their desk smoking.

  • Marius Gedminas

    FWIW it was not my intention to condemn smokers; I wanted to point out that counting minutes spent on breaks is perhaps not the main reason for such a policy.

  • Michael Pyne

    I would imagine it’s probably legal. I sympathize but at least on our boat the smokers’ take many short breaks a day to go outside and smoke, probably costs an hour to hour and a half each day. I’m trying to get a special day off approved for our division’s non-smokers to compensate.

    If you were only to smoke outside during designated break periods I can see no real reason why people should complain (it’s your break time after all). However it may be possible that the company does not want to employ you due to insurance concerns, I don’t know.

  • Mez

    As an aside, at my previous job, we didn’t actually get a lunchbreak – just went round the corner, and got a baguette, and ate it at our desk.

    I can see the whole “hour” thing (probably about right for what I smoked, erring on the cautious side) but I’d probably go for 2/3 a day, either at a time where I’d been working intensively, and needed to re-focus, or a lull in what needed to be done (like, after dealing with all the bugs for that day, or while waiting for the boss to review a spec or similar)

  • Anonymous Coward

    I wonder if the reasoning behind this is that they are trying to minimize the cost of insuring employees. If insurance is the reason, it makes sense; smokers are high-risk, thus it costs more to share that risk. The employees may not care if you actually smoke (or if you don’t) but maybe don’t like what it does to their bottom line.

    Now, is this probably a policy that’s offensive to most smokers. Especially since they didn’t state their reasons behind it, it could easily be construed as prejudice against smokers. Your concern may very well be valid.

    Finally, I have no idea what laws and practices are where you are from so I don’t know if the place you are seeking employment even has an insurance industry (as opposed to government health plans, etc). I just figured I’d add a little perspective. Thanks, I enjoy reading your blog on Planet Ubuntu.

  • Gryc Ueusp

    If you have a lawyer handy, claim it as a disability. It _is_ an addiction after all, and addictions are disabilities.

  • Hobbsee

    And so it should be!

    I can understand that people smoke – I just don’t want to breathe their air, thanks!

    I found this at UDS – It’s great talking to you people, but not when I’m finding it hard to breathe due to your smoke! A coworker always comes in and talks to us, right after she’s had a smoke too – urgh! I want my clean air back!

  • Jacob

    First of all – it was not a question about smoking during workinghours?

    I would not like to be employed at a company where everybody are clones. How boring is that?? If you are cloned (Western version of Mao uniforms?) it is more than likely that “life” is utterly boring.

    Eventually most clones will break out one way or another. (Smoking pot at weekends, cocaine, mountainclimbing, MTB, diving, swinging, collecting stamps).

    Streamlining humans is a bad thing. Humans are not perfect and they do not have perfect health. You can be healthy and kill your colleagues with pure boredom.

    The banning of smokers as employees is just the same as excluding women, pregnant women, homosexuals, army veterans, non-white, garliceaters, curryeaters, disabled, old, young, whaterver.

    The smokers are out – then overweight – then diabetes – then those with relatives died of cancer – then parents of disabled kids – then with healthy kids – then people with glasses.

    Where do you draw the line? When does it become healthfacism? In my opinion the question is: Does whatever you do or whatever you are preventing you to perform your job well?

    Someone WILL replace the smokers in the bottom of the peckingorder.

  • Wesley

    This is one of the side effects of having employers provide our health care. They have a vested interest in keeping us healthy to keep their costs down. If we would buy our health insurance like we buy all other insurance (personally), the employer’s would no longer have any reason to tell us how to live our lives (healthwise).

  • Jeremy

    I don’t think this is unreasonable at all.

    Job interviews are all about selecting the best person for the job. If you are a smoker, you won’t be able to work as effectively as an equivalent non-smoker, as you will have to take frequent forced breaks in order to stop you from going crazy.

    You call it discrimination because you are no longer the best person for the job?

  • MeiYouMingzi

    please excuse my poor english i am a bbc

    “I also find, personally, that that 5/10 minutes outside when I’m having a cigarette generally, when coding, allows me to re-focus my mind.”
    - most universities and colleges now enforce 5-10 minute breaks every 45 minutes as it has been proven that it helps concentration

    “At the previous place I worked smokers usually took twice the breaks the non-smokers did, so such policy is quite understandable”

    Your right, lets ban all smokers from the work place, and while we’re at it dont those anoying drinkers annoy you aswell.. lets ban drinkers from the workplace .. rolling in monday morning still hung over from the night before.. lowered overall productivity due to fatigue and headaches..

    whilst were on the subject of lowered productivity why not ban muslims from work also? i mean come on during fasting season they are terribly tired .. strict muslims even deprave themselves from fluids during this time, so they may also be dehydrated.. talk about lowered productivity..

    women shiesh women should be banned or rather women that forsee themselves becomming pregnant.. talk about leeching money from a company..

    old people.. cmon.. “you cant teach an old dog new tricks” you would honestly hire a 50yr old over a 20yr old even if they have the same qualifications in every way.. ofc not.. the 50 yr old will be retiring soon one would assume

    jim says:”They are annoying and a health hazard to everyone around them.”

    -u ever see an elderly company driver? no? why not? because as we all know elderly people are in general slower to react, senses are dimmed talk about a health hazard to everyone around them.

    .. okay enough of the crap
    If a company can hire “only ethnic minorities” during a recruitment drive to ensure “equality” under our own english laws then it seems anything goes..
    sad but true – what type of discrimination is leagal in this ‘pc’ world.. who the hell knows.

    “I hope more and more people adopt positions that discriminate against smokers. I’d like to see it illegal.”

    To me it honestly sounds petty and unfair real discrimation shouldnt fking exist in this day and age and yet you would want such a strict rulling against this.. on a personal note i hate smoking and i despise drunken louts but it is their choice to do those things.. and that i donot hate, our own choices define us. controlling every aspect of what we do down to our very choices of what we do/see/hear doesnt seem like freedome to me

  • Sam

    I’d continue this interview:

    “Excuse me. May I ask a question?”

    “Yes”

    “Do you drink alcohol? I have a strong policy to not work with alcoholics. Feel free to try to hire me if you quit.”

  • jeffro

    it’s legal. and it’s lame.

    But I’m all for lying. I don’t know if it’s a state law (New York) or federal, but I’m entitled to two paid 15 minute breaks and one half-hour break when working six or more hours (required! some companies are cool and give you more than that). During said breaks (especially the half hour one), you aren’t required to be at your “work station”. So you could just leave the premises, go have your cigarette, hose yourself down with some Axe (or what have you), have an Altoid, and be good to go.

    Been there. Done that. It works.

  • Márcio Vinícius Pinheiro

    I don’t know in your country, but in mine (Brazil) it is somewhat encouraged.

    I believe the employer is free to give jobs based in any criteria he believes is better. Maybe he is like me, and he doesn’t want to live smelling ashes at his own office.

    I don’t smoke and I feel furious when someone pollute the air I breath with his smoke or even with his stench.

    Instead of been sniveler, you could do a favor for your health, for people around you and for your chances to get a job dropping you cigarettes.

    no offenses!

  • emmajane

    Would the new company be responsible for your health care or a health benefits package? My guess is that as a smoker you might potentially be a “more expensive” employee…

  • Malcolm Bastien

    You wouldn’t want to work for a bunch of people like that in the end of it all. People who either can’t accept or don’t give their employees choice in how they live their lives are no people I would want to work with.

  • MrGrim

    Fortunately, there is at least one enlightened state in the union. In Kentucky it is illegal to discriminate against smokers:

    http://www.lrc.ky.gov/KRS/344-00/040.PDF

    I’m unsure if other states have other laws.

  • shermann

    WTH?

    What’s wrong with our society?
    I mean, companies will employ no smokers, even if they have better reputation and more experience then non-smokers?

    Really, if this will be the next level of racism, I think the better idea is to put nicotine under heavy drugs law, and see how far the state comes, regarding missing tax income of smokers…

    Mez, I’m on your side..smokers unite..we are better people…we pay more for the social system then a non-smoker, we are more intelligent (I need to find the scientific paper again coming from the US), and we die earlier and don’t waste money of health insurances…and because we die earlier, we are not wasting the time of our young kids, taking care of us when we are old and can’t walk and the only thing we do is peeing into our pants.

    Hell, I hope something happens, that our society will be healed from their social sickness…

    \sh

  • jorge

    Note to self: When around popey, smoke as often as possible.

  • James Livingston

    While I don’t know about the legal aspects of it various countries, I’d find it somewhat disturbing they could refuse to employer purely on the grounds of being a smoker.

    Having it a condition of employment (applicable to everyone) that you don’t smoke at work, I’d be okay with – but refusing to employer a smoker, even if they are not going to smoke at work, sound dodgy to me.

    Here’s my responses to various reasons given above for not employing smokers:

    Wastes a hour a day smoking – as well as the large number of places where you can’t smoke at work, can I assume you won’t want to employ anyone who wastes time at work? Like the people who have a cup of tea three or four times a day, or do stretches for a few minutes every hour (as the OH&S rules at work technically say we’re supposed to)

    Smells, agitating allergies, etc. – this is more reasonable, but there are quite a few other things that could do it too, and I doubt that they’re stopping anyone in the workplace wearing perfume, wearing deoderant after they finish their jogging at lunch time, or accepting flowers from their partner on their anniversary.

    In summary, while not letting you smoke at work might be okay, I can’t see how refusing to employ you purely on the grounds of being a smoker could be any better than refusing to because you have red hair, have a New Zealand accent, or play gold on the weekends.

  • Robin

    I think the point is that smoking’s a choice, unlike skin colour.

  • Xan

    Yes. It is most definately legal.
    There can be many reasons someone may choose to employ non smokers. Many have been listed throughout this post. Break times, Insurance costs, allergic/comfort of other employees, etc. Many places I have met over time which have reduced the number of smokers over the years have also reported a reduction in building maintenance costs, having to repaint stairwell walls less often, as they claimed they tended to turn yellow after a while of smokers using them when it was heavily raining outside (unless you are wanting the company to spend more of its building/maintenance budget building a special kennel outside for the smokers?

  • mini_me

    It’s legal because you can’t choose your “sex, race, age, religion, or ethnic group, or individuals with disabilities” but you CAN choose whether to smoke or not. Personally I think the smell and direct/indirect health implications are more than sufficient to avoid hiring smokers.

  • maninalift

    “minutes outside when I’m having a cigarette generally, when coding, allows me to re-focus my mind” – because you were getting distracted by your craving? ;)

    seriously, don’t write on forms that you smoke, it’s never a good thing. I guess you couldn’t go all day without a cigarette (or until lunch)?

  • Wunderling

    Wow, that’s just great news! I didn’t know such companies exist…that’s just wonderful. I wonder if such companies exist around here too…I’d change job immediately.

    Btw, if you want to die early….there’s faster ways than smoking. And there’s even ways that don’t harm others – isn’t that great?

  • Meneer R

    WOW.

    I can’t imagine all the people in favor of discriminating smokers.
    They must be American, since i can’t imagine this behavior in Europe.

    WOW, WOW, WOW. What a bunch of a rascist biggots.
    How is “You should not smoke, let me help you by oppressing you” any different from “You should believe in god, let me smack you up with a bible!” ?

    Really, what is the difference. You are enforcing your beliefs onto somebody else.
    Also, if you are american, smoking is not going to kill you. It’s your car (the smog) that is causing long cancer. But even that is not killing you before you die of eating popsticles-on-a-stick. (seriously, wtf?)

    EVER HEARD THE EXPRESSION: WE CAN WORK IT OUT?
    Before you turn into fascist beliefs-enforcing biggots?

    If you have 100 programmers, couldn’t the 10 that smoke work together.. PROBLEM SOLVED.

    Big fucking deal.

    And no, I don’t smoke [anymore]. But the prosecution of these people is frightning.

    It’s weird enough the governemt bans some random selection of drugs.
    Why keep adding things we are not allowed to to the list? Why not just make a list of things we are allowed to? Then we can all be exactly like you.

    Wait, no, not you. You smoke. No,. not you, you eat too much. No, not you, you drive a car (stinkin pollutor!), no not you, you watch TV,….

    But sure, hey, go feel superior to people that smoke. You are not. You are just displaying your ignorance.

  • Meneer R

    @Marius..

    Talk to him about it.

    If he washes his hands and takes a mint he won’t smell.
    He doesn’t know he smells. (i didn’t notice how much smokers smelled until I quit)

    If you ask him to, i’m sure he would much rather prefer a solution like that.
    He might even be a little ashamed, because he wasn’t aware he was causing trouble for you.

  • Joao Pinto

    Meneer,
    I am an EU citizen and I agree with such “no somers” policy, you are actually the racist by trying to assign a discrimination policy to a specific nation.

    No one is trying to enforce beliefs , smoking or not smoking is not a belief, it’s an health care issue, specially when you work on a team.

    I do not smoke and hate to get the smoke from my colleagues, what is your suggestion for me ?
    Are smoker right’s superior to my health concerns ?

  • jorge

    Whoops, I realized that my “smoke around popey” comment implies that I would do so to get his daughter sick.

    Readers please note that popey and I are seperated by an ocean so when I smoke around him there is still usually a long flight and (rarely) a shower.

    Do note that slowly killing popey with second hand smoke is still very much a real goal.

  • Alan Pope

    Jorge, get me a job at canonical and your goal will be much easier to achieve. Also I can bring down your smokers empire from within.. Mwahahahaha!

  • Fuffo

    That company should be rewarded for its policy.
    And you should stop smoking.

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