Healthism and the Law of Employment Discrimination

• Author: Jessica L. Roberts
• Pages: 571-635

571

Healthism and the Law of Employment

Discrimination

Jessica L. Roberts

ABSTRACT: Recently, several employers around the country announced

they would no longer hire applicants who use nicotine, even off the clock.

Just last year, one entity adopted a policy that it would not employ

individuals classified as severely obese. Read together, nicotine and obesity

bans can be understood as employer practices that intentionally screen out

unhealthy individuals.

Yet should these employer practices constitute legally actionable

discrimination? That question is the central inquiry of this Article. It begins

by identifying those recently adopted policies as discrimination on the basis

of employee health. It then analyzes this novel brand of employment

discrimination by comparing employer bans on nicotine and obesity with the

employment actions forbidden by the current federal statutes that cover

health-related information, mainly the Americans with Disabilities Act, the

Rehabilitation Act, the Genetic Information Nondiscrimination Act, the

Health Insurance Portability and Accountability Act, and the Affordable

Care Act. The Article distinguishes between discrimination on the basis of

health-related traits and discrimination on the basis of health-related

conduct. Because the current federal employment discrimination laws are

uniformly trait-based, prohibiting employment policies related to nicotine use

and weight requires a different kind of antidiscrimination statute. The

Article then surveys existing state legislation that limits an employer’s ability

to discriminate on the basis of unhealthy behavior. It ends by proposing that

well-structured legislation could reconcile the concerns surrounding this

 Assistant Professor of Law, University of Houston Law Center. Thank you to Josh

Blackman, Zack Bray, Jessica Clarke, Mary Coombs, Ben Edwards, Dave Fagundes, Peter Huang,

Elizabeth Weeks Leonard, Dan Schwarcz, Ron Turner, and faculties of the Temple School of

Law, the Florida State University College of Law, the Thurgood Marshall Scho ol of Law, the

University of Houston Law Center, and the University of Miami School of Law for commenting

on earlier versions. I presented a portion of this project at the American Association of Law

Schools 2013 Annual Meeting during the Law, Medicine, and Health Care Section Panel. My

appreciation also goes to Louis Holzer and TJ Tesch for research assistance, Emily Lawson for

library support, and Elaine Gildea for administrative aid. Finally, many thanks to my editors at

the Iowa Law Review, especially Courtney Burks.

572 IOWA LAW REVIEW [Vol. 99:571

contentious issue, simultaneously shielding the interests of employers while

offering workers protection.

INTRODUCTION ...................................................................................... 573

I. DISCRIMINATION ON THE BASIS OF HEALTH .......................................... 577

A. HEALTH-RELATED EMPLOYMENT POLICIES ....................................... 577

B. MOTIVATIONS BEHIND HEALTH-RELATED EMPLOYMENT POLICIES ..... 579

1. Cost .......................................................................................... 580

2. Stigma ..................................................................................... 584

3. Business Image ....................................................................... 586

4. Paternalism ............................................................................. 589

C. HEALTH-RELATED EMPLOYMENT POLICIES AS “HEALTHISM” ............. 590

II. HEALTHISM & ANTIDISCRIMINATION ..................................................... 593

A. ANTIDISCRIMINATION & PROTECTED TRAITS .................................... 594

1. Healthism & Employment Discrimination Law ................... 594

2. Beyond Employment: Healthism & Insurance Law ............. 600

B. TRAIT-BASED VS. CONDUCT-BASED HEALTHISM ................................. 604

III. OUTLAWING HEALTHISM ....................................................................... 607

A. EXISTING STATE LIFESTYLE DISCRIMINATION STATUTES .................... 608

B. ADDITIONAL LEGISLATION ................................................................ 610

1. Reasons for Regulation .......................................................... 610

a. Privacy, Autonomy, & Anti-Paternalism............................. 611

b. Immutability and the Absence of Choice ............................... 614

c. Harm to Historically Disadvantaged Groups ....................... 616

2. Reasons Against Regulation .................................................. 618

a. Freedom of Contract and Employment At-Will ...................... 619

b. Market Effects ..................................................................... 620

c. Erosion of Existing Protected Categories ............................... 622

d. Benefits of Paternalism ....................................................... 623

C. GOING FORWARD .............................................................................. 624

1. Protecting Employees ............................................................ 625

2. Protecting Employers ............................................................. 630

CONCLUSION ......................................................................................... 634

2014] HEALTHISM 573

INTRODUCTION

For most of us, our health is a work-in-progress. A nagging voice in the

back of our heads reminds us that we should shed a few pounds or give up

smoking. Yet time and time again, many of us still reach for a second

cupcake or light up a cigarette. But what if employers could use these

seemingly personal choices related to our wellness to make decisions

regarding whether to hire us, even if we never eat or smoke at work?

Recently, employers around the country attempted to do just that.

In October 2012, Methodist Hospital System (“Methodist”) announced

that starting in January 2013 it would no longer hire applicants who use

nicotine.1 The new policy forbids hiring individuals who smoke or chew

tobacco in an effort to establish the hospital as a “tobacco-free employer.”2

Methodist plans to enforce the ban with a urine test: Applicants who test

positive for nicotine will lose their job offers, yet will have access to a free

tobacco cessation program and may reapply once they have been nicotine-

free for ninety days.3 In a similar move, Baylor Health Care System

(“Baylor”) stopped hiring nicotine users in January 2012, also adding a test

for the legal substance to its existing drug screening process.4 These new

policies led to public outcry,5 given Methodist’s and Baylor’s statuses as

among the largest employers in two greater metropolitan areas.6

Methodist and Baylor were not alone. In just the past two to three years,

employers throughout the United States banned hiring nicotine users,

including employers in Florida,7 Massachusetts,8 Michigan,9 Ohio,10

Pennsylvania,11 and Texas.12

1. Renée C. Lee, Hospitals Turn Away Applicants Who Smoke, HOUS. CHRON. (Oct. 29, 2012,

2:45 PM), www.chron.com/news/houston-texas-houston/article/Hospitals-turn-away-applicants-who-

smoke-3988931.php.

2. Id.

3. Id.

4. Gary Jacobson, Dallas-Based Baylor Health Care System to Stop Hiring Smokers, DALL.

MORNING NEWS (Sept. 23, 2011, 11:20 AM), http://www.dallasnews.com/news/community-

news/dallas/headlines/20110921-baylor-health-care-system-to-go-nicotine-free-in-its-hiring.ece;

see also Editorial: Not Hiring Smokers Crosses Privacy Line, USA TODAY (last updated Jan. 29, 2012,

6:56 PM), http://usatoday30.usatoday.com/news/opinion/editorials/story/2012-01-29/not-

hiring-smokers-privacy/52874348/1 [hereinafter Privacy Line]. The newly added nicotine

screenings are expected to cost Baylor an additional $60,000 per year. Jacobson, supra.

5. For a discussion of the critiques of these hiring bans as unfairly discriminatory, see

infra Part I.C.

6. Methodist currently employs more than 13,000 people. Lee, supra note 1. Baylor

currently employs approximately 20,000 people and received around 3,800 job applications

just last year. Jacobson, supra note 4.

7. See Delray Beach, Florida Bans Hiring of Smokers or Tobacco Users to Save on Health Insurance,

HUFFPOST MIAMI (Oct. 03, 2012, 6:03 PM), http://www.huffingtonpost.com/2012/10/02/

delray-beach-florida-bans_n_1933172.html [hereinafter Delray Beach].