Is leisure-time smoking a valid employment consideration?

• Author: Chadwick, Karen L.

1. INTRODUCTION

   It has been over forty years since the Surgeon General first released a report stating that cigarette smoking is a health hazard and a primary contributor to lung disease. (1) Since that report, substantial research has established that smoking dramatically increases the risk of death from a plethora of conditions. (2) Despite widespread awareness and acceptance of the risks of smoking, (3) an estimated 44.5 million adults, or 20.9% of the United States population, continue to smoke. (4) It has been estimated that cigarette smoking is now responsible for 440,000 deaths annually in the United States. (5) Another estimated 8.6 million persons in the United States suffer from serious illnesses attributable to smoking. (6)

   In the years since the Surgeon General's initial report, the evidence has mounted that the costs attributable to smoking are reflected not only in smokers' decreased longevity and increased risk of disease, but also in the workplace. (7) The highest prevalence of smoking in the United States occurs during peak employment years in the twenty-five to forty-four-year-old age groups. (8) Health care costs for smokers are estimated to be as much as forty percent higher than those for nonsmokers. (9) Employers of smokers suffer a substantial loss of productivity attributable to smoking. (10) In the United States, productivity costs attributable to smoking total an estimated $92 billion annually. (11) Many of the employment costs attributable to employee smokers, including increased health insurance costs and productivity losses due to absenteeism, are ultimately shared by nonsmoking employees. (12)

   Currently, twenty-seven states and the District of Columbia have adopted statutes which prohibit enforcement of employment policies that penalize employees and potential employees for engaging in legal activities such as smoking during non-employment periods. (13) Notwithstanding the substantial support for legislation prohibiting lifestyle discrimination, a significant number of states continue to permit discrimination based on off-duty activities. (14) In those states, an increasing number of employers have opted to enact policies precluding the employment of smokers. (15) Currently, approximately six percent of companies refuse to hire smokers. (16) In contrast to the draconian no-smoking-ever approach taken by some employers in states that tolerate lifestyle discrimination, other employers in those states have adopted a middle-of-the-road approach to leisure-time smoking by employees. Those employers, rather than proscribing employment of smokers, have attempted to pass on at least some of the additional costs attributable to smoking to employees that smoke. (17)

   This Article examines the current approaches to employment discrimination based on off-duty smoking. Part I examines the constitutional, statutory, and common law background giving rise to the differing views regarding employer consideration of off-duty behavior in making employment decisions. Both federal and state constitutional attacks on employment discrimination against smokers have failed. (18) Similarly, no federal statute prohibits employers from refusing to hire smokers. (19) Finally, a right to be free from employer scrutiny of employee off-duty smoking is not protected by tort law. (20)

   Part III of this Article examines the majority view that off-duty smoking is not a legitimate employment consideration. An employee's right to engage in leisure-time smoking without employment consequences is defended on both the basis of privacy and the connected notion that condoning discrimination against smokers constitutes a slippery-slope which will result in increased leisure-time scrutiny by employers.

   Part IV of this Article reviews the arguments favoring allowance of discrimination against employees who smoke. From an economic perspective, a smoking employee simply costs more than one who does not.

   Part V of this Article discusses the "middle" approach to employer scrutiny of off-duty smoking. This approach rejects the current all-or-nothing views on leisure-time discrimination against employee smoking and attempts to pass on at least some of the costs attributable to employee smoking to those employees who smoke.

   Finally, in Part VI, this Article concludes that the current all-or-nothing approaches have unfair consequences to both employees and employers. A preferable approach would be state legislation with rational limitations on employment sanctions against employees and potential employees who smoke. Such a legislative scheme would allow the employer to shift some of the costs of smoking that are traditionally borne by the employer and employees (smoking and nonsmoking) to employees who smoke.

2. THE BACKGROUND AND BASIS FOR THE DIFFERING VIEWS ON EMPLOYMENT DISCRIMINATION BASED ON LEISURE-TIME SMOKING

   Employees who have challenged employment policies considering off-duty behavior have based their claims on constitutional rights, (21) statutory rights and prohibitions, (22) and common law rights. (23) Nonetheless, absent specific statutory or contractual prohibitions against an employer's consideration of leisure-time activities, such as smoking, employers have been successful in protecting their right to hire and fire employees at their will. (24)

   1. Constitutional Claims Based on Privacy Interests

      In the public sector, it has been argued that employer discrimination against leisure-time smoking amounts to an impermissible constitutional violation of the state employee or applicant's constitutional right to privacy and due process. (25) However, federal constitutional attacks on state employment decisions based on leisure-time smoking have met with little success. (26)

      In Grusendorf v. City of Oklahoma City, the constitutionality of the Oklahoma City Fire Department's no-smoking-ever rule for fireman trainees was at issue. (27) There, the plaintiff was fired from his position as a firefighter trainee when he was observed smoking during a lunch break. (28) At the time he was hired, the plaintiff had signed a statement indicating that he understood and agreed to the Fire Department's no-smoking policy. (29) After being fired from his trainee position, the plaintiff brought suit claiming that the nonsmoking requirement constituted an unconstitutional infringement of his rights to liberty, property, due process, and privacy. (30) The district court dismissed his claims. (31)

      On appeal, the Tenth Circuit Court of Appeals addressed whether the regulation violated a federal constitutional right to privacy and concluded that it did not. (32) As a threshold matter, the court addressed whether the right to smoke cigarettes was a fundamental right subject to heightened constitutional protection. (33) Relying on Carey v. Population Services International, (34) the court concluded that smoking was distinguishable from rights such as marriage, procreation, contraception, family relationships, child rearing, and education, all of which were previously recognized as fundamental by the Supreme Court. (35) Nonetheless, the court concluded that there was a Fourteenth Amendment liberty interest involved in the trainees' right to smoke while off duty. (36) Accordingly, to be constitutionally permissible, the no-smoking-ever regulation could not be arbitrary and must be rationally connected to public safety. (37) The court found that there was a rational basis for the regulation because "good health and physical conditioning are essential requirements for firefighters." (38) In reaching its conclusion, however, the court chastised the plaintiff for failing to raise the argument that the regulation was irrational, noting that the regulation was seemingly arbitrarily limited to first-year trainees only. (39) Thus, the court invited constitutional attack on off-duty smoking regulations that may be arbitrary or irrational as applied.

      In City of North Miami v. Kurtz, the Florida Supreme Court considered whether a city job applicant's state and federal constitutional rights to privacy were violated by the City of North Miami's requirement that job applicants sign an affidavit stating that they had not used tobacco or tobacco products during the one-year period preceding the job application. (40) The case arose when Arlene Kurtz attempted to apply for a clerk-typist position with the City of North Miami. (41) At the time of her interview, she was informed that she was required to sign an affidavit stating that she had not used tobacco products for one year. (42) Ms. Kurtz refused and brought suit seeking injunctive and declaratory relief. (43)

      Initially, the trial court held that neither the state nor the Federal Constitution afforded Ms. Kurtz a right to privacy with respect to off-duty smoking and granted the city's motion for summary judgment. (44) The Third District Court of Appeal reversed, concluding that Ms. Kurtz did have a right to privacy with respect to smoking under Florida's state constitution and that the City of North Miami's interests were insufficient to outweigh the intrusion into her privacy. (45) The Florida Supreme Court reversed and remanded with directions that the trial court's judgment be reinstated. (46) Two justices dissented. (47)

      Florida, together with ten other states, incorporates privacy protection into its state constitution. (48) The Kurtz majority opinion, written by Justice Overton, first addressed whether the Florida Constitution--with its right to privacy--protected Ms. Kurtz from governmental intrusion into non-work-related activities. (49) In concluding that it did not, the court relied on the pervasive public nature of smoking. (50) The court reasoned that smokers must frequently disclose whether they smoke in obtaining seating in restaurants, renting cars, and reserving motel rooms. (51) Accordingly, the court held that smokers did not have an expectation of privacy within the meaning of the...