Trying to limit benefits costs by avoiding applicants with health issues related to smoking
Question: Is it discrimination if an employer refuses to hire people with health issues due to personal choices (such as smoking) who could lead to extra health benefits costs?
Answer: The question of whether it is discriminatory to refuse to hire an applicant with a health issue will depend on whether that applicant has a disability or is perceived to have a disability within the meaning of the applicable human rights legislation.
If the applicant does have a disability falling within the protection of the legislation, a prospective employer does not have the option of discriminating against the applicant based on the cause of that disability. Whether the employer disapproves of or questions the wisdom of the behavior that caused the disability or believes that it renders the applicant less deserving of access to the employer’s health care dollars than others is immaterial.
Thus, a person who suffers from emphysema arising from her own smoking is no less entitled to human rights protection than one who suffers the same condition because of a genetic predisposition or from air pollution. It is the role of human rights legislation to ensure that disabled employees are considered for work on their individual merits. This does not normally encompass consideration of the merits of their chosen lifestyle.
The Supreme Court of Canada made this clear in Quebec Québec (Commission des droits de la personne & des droits de la jeunesse) c. Montréal (Ville):
“It is important to note that a ‘handicap’ may exist even without proof of physical limitations or the presence of an ailment. The ‘handicap’ may be actual or perceived and, because the emphasis is on the effects of the distinction, exclusion or preference rather than the precise nature of the handicap, the cause and origin of the handicap are immaterial. Further, the charter also prohibits discrimination based on the actual or perceived possibility that an individual may develop a handicap in the future.”
In the cases before the Supreme Court, the employers had denied employment to the complainants because of current asymptomatic bio-medical conditions that the employers thought might become disabling in the future. In the same vein, it would certainly be possible for an applicant to claim discrimination if an employer based a denial of employment on a concern that the applicant might become disabled and a drain on a health benefits program in the future.
A rejected applicant could argue that her smoking was an addiction and a protected disability in the same manner as drug and alcohol addiction. An applicant who suffers from addiction cannot be turned down for employment unless the employer can establish that its discrimination on the basis of the applicant’s addiction can be justified as a bona fide occupational qualification. In an ordinary case, this would require the employer to establish it could not accommodate the applicant without undue hardship. The onus would be on the employer to prove that the costs attributable to hiring the addicted individual would cause it undue hardship. This is a difficult onus to meet.
There is very little case law and no consensus on smoking as a protected addiction in the human rights context.
A British Columbia arbitrator held, in Cominco Co. and USWA, Local 9705, Re, that nicotine addiction was a disability for the purposes of the B.C. human rights legislation and a ban on smoking in the workplace was discriminatory. In Stevenson v. Kelowna (City), a human rights tribunal refused to dismiss a complaint alleging that an applicant had suffered discrimination when she was not hired due to her smoking addiction and the likelihood of health concerns leading to excessive absences. In doing so, the tribunal also recognized the possibility that nicotine addiction was a protected disability under the B.C. legislation.
However, in McNeill v. Ontario (Ministry of Solicitor General & Correctional Services), an Ontario court concluded that addiction to nicotine was a temporary condition that many people voluntarily overcome and does not interfere with a person’s effective physical, social and psychological functioning. It was not a mental or physical disability for the purposes of the equality rights provisions of the Charter of Rights and Freedoms.
At the present time, the question whether it would be discriminatory to refuse to hire an applicant because she smokes would depend on whether the applicant’s smoking amounted to a protected disability under the governing human rights legislation. However, a decision clearly tying the refusal to hire to disapproval of the underlying cause of an existing disability or to a desire to avoid the costs of a future disability could be problematic.
For more information see:
• Québec (Commission des droits de la personne & des droits de la jeunesse) c. Montréal (Ville), 2000 CarswellQue 649 (S.C.C.).
• Cominco Co. and USWA, Local 9705, Re, 2004 CarswellBC 4103 (B.C. Arb.).
• Stevenson v. Kelowna (City), 2009 CarswellBC 264 (B.C. Human Rights Trib.).
• McNeill v. Ontario (Ministry of Solicitor General & Correctional Services), 1998 CarswellOnt 2309 (Ont. Gen. Div.).
