Lifestyle Discrimination in the Workplace Your Right to Privacy Under Attack

Document Date: March 12, 2002

Lifestyle Discrimination in the Workplace:
Your Right to Privacy Under Attack

Legislative Briefing Kit on Lifestyle Discrimination

(Access this report for a more detailed discussion of the issue.)

The word “privacy” means many different things to different people. One widely accepted meaning, however, is the right to be left alone. The framers of our Constitution and Bill of Rights certainly embraced that meaning, especially with regard to the sanctity of family life. This cherished right is now under attack, but the government is not the primary culprit. Private employers are using the power of the paycheck to tell their employees what they can and cannot do in the privacy of their own homes. The American Civil Liberties Union believes that what a person does during non-working hours away from the workplace should not be the basis for discrimination.

Q: What causes employers to engage in lifestyle discrimination?

A: The driving force behind this trend is economics, in particular the rising cost of health care benefits provided by employers. Health care costs for employers are increasing almost three times as fast as inflation. Several factors are contributing to the high cost of health insurance, but the only factor employers have substantial control over is their employees. Under the pressure of economic considerations, employers may very well try to regulate every health-related aspect of their employees’ lives, including diet, hobbies, sleep habits and even childbearing.

Q: Who is affected by lifestyle discrimination?

A: Several groups have been targeted by employers and subjected to discriminatory practices, both on the job and during pre-employment screening. Those most frequently discriminated against are smokers and people who are overweight. A 1988 survey taken by the Administrative Management Society revealed that six percent of employers (about 6,000 companies) were discriminating against off-duty smokers. That figure has almost certainly risen. It is more difficult to quantify the number of companies who discriminate against overweight people because this is seldom an official corporate policy, but the evidence suggests that such discrimination is at least as common. Other targeted groups are: people with hypertension or high serum cholesterol levels, social drinkers, sports enthusiasts and, potentially, people who are genetically prone to contracting certain debilitating diseases.

Q: Why shouldn’t employers be allowed to keep their costs down by hiring employees who won’t generate high medical bills?

A: Employers’ desire to keep their health care insurance costs down is understandable, but it is unclear that employers can save much by engaging in lifestyle discrimination. For example, the Bureau of National Affairs reported in 1987 that 95 percent of companies that banned smoking reported no financial savings. Furthermore, even if there were significant savings, the price would be too high. To permit such discrimination allows, in effect, the banning of perfectly capable workers from any type of employment — thus, denying them the opportunity to earn a living for themselves and their families. Permitting employers to act as “health police” will not solve our nation’s health care crisis; it will only destroy the private lives of working Americans.

Q: Why shouldn’t employers be able to restrict their employees’ “high-risk” activities?

A: Virtually every lifestyle choice we make has some health-related consequence. Where do we draw the line as to what an employer can regulate? Should an employer be able to forbid an employee from going skiing? or riding a bicycle? or sunbathing on a Saturday afternoon? All of these activities entail a health risk. The real issue here is the right of individuals to lead the lives they choose. It is very important that we preserve the distinction between company time and the sanctity of an employee’s private life. Employers should not be permitted to regulate our lives 24 hours a day, seven days a week.

Q: Can’t employers just charge a premium to employees whose activities raise the cost of health insurance?

A: Often, an employer claims to be charging “unhealthy” employees a premium over the “normal” rate, while some employers claim to be giving their “healthy” employees a discounted rate. Either way, however, some employees are required to pay more for health insurance than others.

This may not be wrong in principle, but the employer should be able to justify surcharges imposed on an employee whose lifestyle is deemed “unhealthy” with sound actuarial data. The employer should be able to demonstrate that an employee’s behavior increases the employer’s health care costs by a measurable amount. The employer should also be required to show that the surcharge is not discriminatory — that is, does not fall disproportionately on racial minorities or other protected groups.

Q: What is the ACLU doing about it?

A. The ACLU has found that state legislation is the best method for protecting workers’ private lives. Two states have already passed comprehensive laws against lifestyle discrimination, and 21 other states have laws that provide partial protection. Our goal is the enactment, _in every state_, of statutes that protect all working Americans from discrimination based on their off- duty activities.

Q: Isn’t this creating a “civil right” to drink and smoke?

A: Not at all. The ACLU does not oppose smoking bans in public buildings, in the workplace or in locations where non-smokers may be subjected to secondary smoke. We object only to bans on smoking, drinking, diet and hobbies in a person’s own home.

Q: Isn’t the ACLU just fronting for the tobacco lobby?

A: No. Lifestyle discrimination legislation is supported by a wide variety of civil rights groups and labor organizations, as well as by a majority of Americans. A 1992 National Consumers League poll showed that 84 percent of Americans believe that an employer does not have the right to refuse to hire an overweight person. Ninety-three percent believe that an employer does not have the right to base employment decisions on whether an employee smokes after work, and ninety-six percent say it is inappropriate to base employment decisions on whether a person drives a motorcycle.

Public Opinion Poll on Employee Privacy===================================================An Employer does not have the right to 84%refuse to hire an overweight person. An Employer does not have the right to 93%base an employment decision on whether an employee smokes after work. An Employer does not have the right to 96%base an employment decision on whether a person drives a motorcycle. Source: National Consumers League 1992 National Opinion Poll On Workplace Privacy

Produced by:
The ACLU National Task Force on Civil Liberties in the Workplace
American Civil Liberties Union
Department of Public Education
125 Broad Street
New York, NY 10004