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Employee discrimination:

Should smokers be refused employment?

by Simon Longstaff

Should people who smoke cigarettes be refused employment? Some people certainly think so.

Take the new owner of Edgells/Birdseye. Mr Simplot is not just against smoking at work - employees are banned from consuming tobacco products at any time.

Mr Simplot does not base his case solely on the grounds of public health promotion (although this may be a beneficial side-effect). He also argues that employing smokers is more costly than the alternative - especially if the company bears the cost of employee health insurance.

It should be noted that employers frequently exercise at least indirect influence over the way in which employees behave during 'free' time. For example, most require their staff to be sober during working hours. This, in turn, means that the recreational use of alcohol and other drugs must be restrained (or entirely curtailed) before work and during breaks.

At first glance, the Simplot policy may seem to be unduly discriminatory. But is it?

Part of the problem about discrimination on the basis of factors such as colour, race, gender and age is that people are unable to choose or change the significant characteristics. In addition, factors such as these rarely have any bearing on a person's capacity to do a job. Given this, it is unreasonable to limit a person's opportunities because of an irrelevant accident of birth.

Yet, enlightened legislatures have also enacted measures affording protection against discrimination on the basis of religious and political affiliation as well as a number of other factors that are within the control of individuals. Giving up a certain set of religious beliefs may be easier, for some, than giving up smoking. However, most would consider it unjust to require a person to renounce personal beliefs in order to secure a job.

Furthermore, I suspect that this judgement would be maintained even if it could be shown that a certain set of beliefs were counter-productive (in an economic sense). For example, some employers may wish to boost productivity by using a flexible seven-day roster. At the same time, we know that certain days of the week are holy-days for the devoutly religious and that on such days no work may be done. Employing the faithful may reduce productivity or increase costs to the same degree as employing people who smoke during their spare time. Yet, to discriminate on the basis of a person's religious beliefs is (with a few exceptions) unlawful.

It might be objected that discrimination on the basis of smoking is different in that it helps to protect the welfare of the smoker. Even if this were so (and it's worth noting that some beliefs have caused more deaths than cigarettes), defenders of the principle of liberty have argued that the freedom of the individual may only be infringed for the good of others and not for the sake of the person subject to control. Preventing smoking at work meets this test as the aim is to protect the passive smoker.

What of the argument that shareholders' interests should be protected and enhanced in the same way as passive smokers'? Is this not reason enough to restrict the liberty of the would-be private smoker? Strictly speaking, a formal argument of this kind may hold good.

Of course you would have to make a few assumptions. For example, you would need to assume that preserving the prosperity of shareholders counted at least as much as preserving the health of workers. This is to highlight the obvious point that there are legal and ethical boundaries restricting the policy options of companies seeking to maximise profits. The case of Mr Simplot's policy is interesting because of what it tells us about how those boundaries should be drawn.

However, its significance goes beyond questions to do with the rights and obligations of smokers. For example, we need to start thinking through the implications of developments in the science of genetic 'fingerprinting' and manipulation. Consider a few scenarios. In the first, let us suppose that it is possible to identify genetic sequences of a kind associated with increased risk of heart disease. Would it be acceptable for employers to screen out all applicants with this genetic predisposition on the grounds that a failure to do so would increase the costs of the company? It is fairly easy to see that the genetic composition of a person is not something over which they have control. Being like gender, race or colour; discrimination would seem to be unreasonable.

What if people could choose to alter their genetic make-up? Suppose gene therapy could correct a latent condition such as heart disease. Would failure to undergo such treatment be akin to a refusal to give up smoking? In these circumstances, would a corporation be justified in refusing to offer employment? Or suppose that it was possible for a person's parents to decide on genetic manipulation of a yet-to-be-born child. Would the failure of a parent to correct a recognisable 'abnormality' (providing, of course, someone can specify what is 'normal') give rise to a subsequent liability for the child's failure to secure work?

If profit maximisation is the key and if it is acceptable to employ people with particular physical attributes (such as the strong and fit as removalists), then why not pre-select babies that have the genetic material needed to make the ideally configured navvy, stockbroker, soldier or surgeon? Scenarios such as these may seem to have been lifted from the pages of Aldous Huxley's Brave New World. However, the technology exists to do the things imagined above. Hence the need to start debating these issues now.

There is a tendency to think that matters such as these should be left in the hands of scientists and philosophers. Yet, these are questions for the community to consider. As an influential part of the community, business has a vital role to play in working through its response to the issues. How will its leaders react when it becomes technically and economically feasible to pick and choose employees whose very being is configured to maximise productivity? Would an increase in the economic wealth of society be sufficient to justify adoption of policies that discriminated on the basis of genetic structure?

Should people who smoke cigarettes be refused employment? Some people certainly think so.

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