ASH PR: CBS-TV Holds Smoker Piece Following Complaint [01/19/06-5]

The CBS Evening News delayed airing a segment on "smokers' rights," which it had said was definitely going to be presented on Wednesday, after Action on Smoking and Health (ASH) questioned a plan to list states which supposedly protect smokers from "discrimination," and issued a complaining press release.

Following the transmission of the press release reprinted below (which explains the situation), CBS Evening News failed to air the news report about companies which decline to hire smokers, and apparently substituted one on older drivers.

"By the time the smoker piece airs, we hope CBS will have corrected the problem we pointed out, and may even have made a better effort to present both sides of this important issue," says public interest law professor John Banzhaf, Executive Director of ASH.

CBS's Smoker Piece May Be Misleading or One-Sided [1/18/06]
Smoker-Protection Laws Ineffective and Rarely Enforced 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 // 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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