ASHPR: CBS's Smoker Piece May Be Misleading or One-Sided

Smoker-Protection Laws Ineffective and Rarely Enforced [01/18-06-4]

Tonight's [1/18] CBS Evening News will reportedly include a piece on
so-called "smokers' rights," but it may be misleading and/or inaccurate
for many reasons.

It reportedly will imply that many states have laws which protect people
from employment discrimination if they smoke, even off the job and on
their own time. But any such suggestion is inaccurate for several
reasons, says law professor John Banzhaf of Action on Smoking and Health
(ASH).

First, many laws, even as written, provide little if any protection. For
example, while New Hampshire's law [§ 275:37-a ] says an employer may
not make non-smoking a "condition of employment," it does not -- unlike
traditional anti-discrimination laws -- prohibit an employer from giving
a strong preference in hiring to nonsmokers, refusing to promote
smokers, denying smokers other preferences or benefits, paying smokers
less, or requiring them to attend smoking cessation programs, etc.
Indeed, another New Hampshire law permits employees who smoke to be
charged more for health insurance.

Second, even in states with such laws, companies may [as some do]
prohibit employees from having any detectable odor of tobacco smoke
about them - a rule which generally requires smokers to shower, shampoo,
and change their clothes after each smoke. This requirement may
effectively prevent people who smoke off the job site from working
there, even if abstaining from tobacco use isn't made an express
"condition of employment."

Finally, it should be noted that, while a significant number of states
have so-called smokers' rights statutes, it appears that they are rarely
if ever enforced. Indeed, a check of Lexis news articles and judicial
opinions failed to disclose even one reported instance of a
discrimination-against-smokers case. On the other hand, there are a
growing number of surveys and anecdotal evidence showing more and more
companies refusing to hire smokers, charging them more for health
insurance etc.

Prof. Banzhaf, who has advocated and litigated for the right of
companies to refuse to hire smokers or to charge them more for health
insurance, says he also fears that CBS might present a one-sided piece
dramatizing the impact of such policies on smokers, and omitting many of
the reasons for such policies.

For example, he hopes that in fairness CBS will also report how
prohibiting employers from declining to hire smokers forces the great
majority of workers who are nonsmokers to bear the enormous costs of
unnecessary health care, early disability, and other costs of smoking,
even if it occurs off the job.

Laws which prohibit employers from basing hiring decisions on legal
conduct employees engage in on their own time (as some laws read) could
force animal rights organizations to hire hunters, womens' rights groups
to hire strip-show aficionados, and antismoking organizations to hire
smokers.

CBS also may fail to note that many major media organizations will fire
people who engage in certain lawful activities off the job if the
activities may have an impact on the company. For example, most media
companies will fire employees who exercise their right of free speech
and association by marching in parades related to issues like abortion
and gun control, or making racist statements or even attending private
events which are openly racist. They will also fire employees who accept
trips or other gifts from persons they cover, make investment decisions
based upon news they report on, etc.

Finally, CBS may also fail to point out that anti-discrimination laws
are usually aimed at protecting workers from hiring discrimination based
upon factors which are largely immutable (like race, national origin,
gender, etc.) and which have no impact on the employer. Smoking, unlike
these factors, is a behavior rather than an immutable condition, and
even off-the-job smoking does have a very significant adverse impact on
both employers and other employees, says Banzhaf, who has brought more
than one hundred successful anti-discrimination legal actions.

PROFESSOR JOHN F. BANZHAF III
Executive Director and Chief Counsel
Action on Smoking and Health (ASH)
2013 H Street, NW
Washington, DC 20006, USA
(202) 659-4310 // (703) 527-8418
http://ash.org

Presented as a public service by Action on Smoking and Health (ASH),
2013 H Street, N.W., Wash., DC 20006, USA, (202) 659-4310.
ASH is a 36-year-old national legal-action antismoking and nonsmokers' rights organization which is entirely supported by tax-deductible contributions.
Please credit ASH, and include ASH's web address: http://ash.org

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