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Discriminating against smokers

The legal assessment of such a policy comes down to whether or not smoking is deemed a disability

By Stuart Rudner 

A few days ago, the National Post ran a story about an employer, Jack Kowalski, who runs a jet boating tour company and has refused to hire smokers for the past 30 years. It described Roger Nugent, who applied for a job and, after learning that the company did not hire smokers, abruptly quit smoking and then signed a contract that provided that if he began smoking again, his employment will be terminated. 

Not surprisingly, this article has generated a significant amount of controversy. I, for one, posted about this on my social media feeds, and have received comments from a number of people taking diametrically opposed positions. Many wholeheartedly support the employer and scoff at the notion that smokers should be considered to be a group protected by human rights legislation since it is a “choice" to smoke, whereas others see smoking as an addiction to cigarettes no different than addiction to alcohol or various drugs, which have been recognized as disabilities. 

In fact, in the National Post article, experts are quoted as saying that smoking is an addiction and refusing to hire someone who smokes could be found to be discrimination on the basis of a disability and therefore a breach of human rights legislation. 

Proponents of such a policy have pointed out that smokers tend to take more frequent and lengthier breaks during the day, tend to miss more work due to illness, and can encounter performance issues if they are forced to either quit or refrain from smoking during working hours. 

Interestingly, I gave a presentation last week for the Human Resources Professionals Association (HRPA), in which I discussed medical marijuana in the workplace. One of the attendees made the comment that issues relating to smoking cigarettes have largely disappeared within the workplace, but that medical marijuana will be the next battleground. However, this National Post article has brought cigarette smokers back to the forefront. 

As I have stated in the past, there is nothing inherently wrong with “discriminating" in the hiring process. In fact, good HR professionals will discriminate against weaker candidates and only select the best ones. There is also nothing wrong with discriminating against someone on the basis of a ground that is not protected by human rights legislation. To use a somewhat silly example, those tasked with hiring candidates could discriminate against any candidates that choose to wear blue shirts, if they so choose. There is nothing legally wrong with such a policy, questionable as it may be in other ways. 

With respect to discriminating against smokers, the legal assessment of such a policy comes down to whether or not smoking is deemed to be a disability. Other addictions have been found to be disabilities, and the law is always being asked to evolve and stretch those definitions.

By way of example, the protected ground of “family status" has been interpreted to include child and elder care obligations.  Similarly, “disability" has recently been interpreted to include the need for medical marijuana. In the past, addiction to alcohol and various drugs have been deemed to be disabilities.

Some individuals have attempted to push the envelope even further by claiming addiction to pornography in defence of allegations that they had been fired for cause due to surfing inappropriate websites, and others have attempted to argue that their gambling addiction constituted a disability.
 

Addiction to tobacco seems more plausible than addiction to pornography. And if the analysis that smokers suffer from an addiction is accurate, then they would presumably be entitled to the protection of human rights legislation. If that is the case, then employers cannot refuse to hire, or choose to dismiss, or take any other action that would have an adverse impact upon smokers, without being in breach of human rights legislation. 

I look forward to receiving comments on this issue, which has already generated significant interest and controversy.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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