Legislative Briefing Kit: Lifestyle Discrimination in the Workplace

December 31, 1998

INTRODUCTION TO LIFESTYLE DISCRIMINATION IN THE WORKPLACE 

In 1989, Daniel Winn, an employee at the Best Lock Corporation in Indiana, admitted to his superiors that several years earlier he had a few drinks in a bar with friends. Mr. Winn was promptly fired on the basis of Best Lock's policy that its employees cannot drink alcohol under any circumstances. 

Two officials at the Ford Meter Box Co. in Wabash, Ind. pulled Janice Bone aside and escorted her from the plant. Bone is a smoker, and although she did not smoke on the job, Ford's policy barred her from smoking at all. "I was very shocked. It's devastating when this happens to you", said Bone.  1

In Michigan, Donna O'Leary, a bus driver, was unable during a physical exam to run in place for three minutes. O'Leary, who weighs over 368 pounds was simply terminated after 26 years employment.  2

Americans have long accepted that employers have a certain degree of control over what we do while at the workplace. But increasing numbers of employers are dangerously broadening the sphere of their control to include what employees do in their own homes. Many employers now refuse to hire people whose private lives are deemed "unhealthy". A few even fire current employees who don't change their lifestyle to meet new company demands. The most common victims of this type of discrimination are smokers and fat people.  3 According to a 1988 survey taken by the Administrative Management Society, 6% of all employers (about 6,000 companies) now discriminate against off-duty smokers. The number has almost certainly increased since then. It is more difficult to estimate the number of companies which discriminate against fat people, since this is seldom an official corporate policy. However, anecdotal evidence collected by the National Association for Advancement of Fat Acceptance (NAAFA) suggests that discrimination against fat people is even more common. Other employers refuse to hire people who drink alcohol, have high cholesterol levels, or ride motorcycles.

The driving force behind this trend is economics. Health care costs for employers are increasing by at least 15% per year,  4 almost 3 times as fast as inflation. Although several factors contribute to these rising costs, the only factor employers have control over is their employees. With such an incentive, employers may well try to dominate every health related aspect of their employees' lives, including diet, exercise and sleep habits ' and without protective legislation they will succeed.

The early Americans adopted the Bill of Rights to limit the government's involvement in their lives and modern Americans demonstrate the same unwillingness to tolerate intrusion whether by government or by employer. According to a 1990 poll by the National Consumers League,  5 81% of Americans believe that an employer has no right to refuse to hire an overweight person. 76% believe employers have no right to refuse to hire a smoker. 73% believe employers have no right to require an employee or applicant to change their diet.

Recognizing that refusing to hire people for reasons unrelated to job performance is unfair and often prevents the company from hiring the best qualified person, some employers have adopted a different strategy. Employees who have lifestyles the employer considers unhealthy are required to pay more for their company health insurance. Some employers say they are charging unhealthy employees a premium over their "normal" rate, some say they are giving healthy employees a discount. Either way, one employee is paying more for their health care than another.

This may not be wrong in principle, but such programs should be based on sound actuarial data. The company should be able to demonstrate that the behavior in question increases employer health care costs by a measurable amount. While such relationships may exist, the data currently available does not demonstrate it clearly. For example, the Bureau of National Affairs reports that 95% of companies banning smoking reported no financial savings,  6 and the U.S. Chamber of Commerce has found no connection between smoking and absenteeism.

The methods used to enforce these policies raise independent civil liberties issues. Most employers currently take an employee's word that they are not violating the rules for off-duty behavior. As discrimination grows more common, however, it will become more difficult to simply avoid companies with whose policies one doesn't comply. People will take jobs, not reveal their lifestyle, and hope the employer doesn't find out. When this occurs, employers will have to hire spies to follow people away from work and/or require frequent universal medical testing (such as urinalysis) in order to enforce the policy.

 QUESTIONS AND ANSWERS: LIFESTYLE DISCRIMINATION 

Which companies practice lifestyle discrimination?
There is no comprehensive list of companies which practice lifestyle discrimination. A few examples of employers who discriminate include:

  • Cardinal Industries refuses to hire smokers stating it "only hires nonsmokers and gives every applicant a urine test and promises to fire those who say they have quit, but don't." 
  • U-Haul International charges its smoking employees an extra $130 per year for health insurance. 
  • Pointe Resorts, which operates 3 hotels in Phoenix, pays 40% more of the insurance costs of employees with a normal weight than of those who are overweight. 
  • In 1990, the city government of Athens, Georgia initiated a health screening for prospective city workers. Applicants whose cholesterol level was in the worst 25% of national ranges were simply ineligible for any position.

Shouldn't employers be able to keep their costs down by hiring employees who won't generate high medical bills?
It is unfair and dangerous to allow employers to discriminate against certain employees because they believe their private lifestyle choices are unhealthy and lead to higher health insurance costs. To begin with, it is unclear that employers can achieve significant savings through lifestyle discrimination. Also, if it becomes acceptable to deny employment because of potentially higher health care costs, people who are capable of working will be effectively banned from any employment, preventing them from providing for themselves or their dependents. Finally, even if employers could achieve substantial savings, sacrificing the private lives of all working Americans is too high a price to pay.

Why shouldn't employers be able to restrict their employees' high-risk behavior?
Risks are associated with nearly every personal lifestyle choice we make ' from smoking cigarettes, to sitting in the sun, to having children. Where do we draw the line as to what our employer can regulate? The real issue here is the individual right to lead our lives as we choose. It is important that we preserve the distinction between company time and the sanctity of our private lives.

Isn't it wrong to encourage people to smoke with protective legislation?
The government has the obligation to insure that people understand the health risks of smoking. Government and employers ought to help people who want to quit smoking. Ultimately, however, it is up to the individual to decide if they want to engage in risky behavior such as smoking or riding a motorcycle. What is wrong is using the power of the government or the paycheck to tell other people how to live.

Isn't this creating a right to smoke?
No. The ACLU does not oppose smoking bans in public buildings, in the workplace, or in other locations where non-smokers may be subjected to sidestream smoke.We object only to bans on smoking (or beer or junk food) in a person's own home.

Isn't lifestyle discrimination legislation just a tool of tobacco companies?
No. Lifestyle discrimination legislation is supported by a variety of civil rights and labor organizations and by the majority of Americans.

 CURRENT LEGAL STATUS OF LIFESTYLE DISCRIMINATION 

Federal Law

At the federal level, civil rights laws barring discrimination on the basis of race, gender or disability may apply to lifestyle discrimination.

Race and Gender

There is demographic data showing that blacks and young women smoke in disproportionately large numbers. It is possible that this disproportion is large enough to constitute disparate impact under Title VII of The Civil Rights Act of 1964, which prohibits discrimination in the workplace on the basis of race and gender.

Disability

The new Americans with Disabilities Act (ADA) prohibits employment discrimination against people with "any physical or mental impairment that substantially limits one or more of an individual's major life activities" and also people who are "regarded as having such an impairment." 

While the ADA does not take effect until July of 1992, employees of federal agencies and federal contractors already have this protection under section 504 of the Federal Rehabilitation Act of 1973. 

While there is not yet case law on point, it can be argued that certain forms of lifestyle discrimination are illegal under ADA. The critical issue is whether the individual's limitation (real or perceived) is serious enough to qualify as a "disability".

State Law

Most states have statutes parallel to the Federal Rehabilitation Act of 1973, which cover both public and private sector employees. There have already been state court decisions holding that under these statutes fat people are protected from discrimination. For example, the New York Court of Appeals held that Xerox Corp. violated the New York Human Rights Law by denying Catherine McDermott a job because of her obesity. The Court rejected the company's claim that it had a right to deny employment because of the likely future health costs her condition would create for the company. The Court said that "employment may not be denied because of any actual or perceived undesirable effect the person's employment may have on disability or life insurance programs."  7

Even the best state disability laws, however, provide no protection for lifestyle choices that are recreational rather than medical. 

To correct the shortcomings of current law, twenty-one states have passed lifestyle discrimination statutes. The majority of these protect only smokers, but a few are broader. Colorado and North Dakota ban discrimination based on any form of legal off-duty behavior. 

A complete list of state lifestyle discrimination statutes: 

Enacted Privacy Legislation
1989 - 1991

STATE  LANGUAGE  BILL NUMBER ENACTED
Virginia
Oregon
Tennessee
Kentucky
Colorado
S. Carolina
Rhode Island
S. Dakota
New Mexico
North Dakota
Mississippi
Indiana
Oklahoma
New Hampshire
Nevada
Maine
Connecticut
Arizona
New Jersey
Louisiana
Illinois
Smokers Only
Smokers Only
Smokers Only
Smokers Only
Legal Activities
Smokers Only
Smokers Only
Smokers Only
Smokers Only
Legal Activities
Smokers Only
Smokers Only
Smokers Only
Smokers Only
Legal Products
Smokers Only
Smokers Only
Smokers Only
Smokers Only
Smokers Only
Legal Products
S607
S986
H2516
H628
H1123
S981
H8768
SB102
S132
SB2498
SB2172
H1439
HB1590
S171
AB667
LD1696
H7211
SB1153
A4699
HB499
HB1533
March 27, 1989
July 28, 1989
March 29, 1990
April 9, 1990
April 17, 1990
June 25, 1990
July 12, 1990
March 1, 1991
April 4, 1991
April 5, 1991
April 16, 1991
May 4, 1991
May 8, 1991
June 10, 1991
June 14, 1991
June 18, 1991
June 25, 1991
June 25, 1991
July 15, 1991
July 19, 1991
January 1,1992

New York and Michigan have pending legislation

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Government Employees

Government employees are protected by equal protection and due process clauses of the federal constitution.

There are comparable clauses in many state constitutions.

These constitutional provisions should protect public employees from discrimination based on non-job related criteria. Perhaps for this reason, lifestyle discrimination by public employers is rare.

The city of North Miami, however, recently adopted an ordinance barring smokers from any municipal employment. The Florida A.C.L.U. has challenged this policy in court,  8 and the result will shed much light upon the extent to which public employees are already protected.

 MODEL ACT 

1.Prohibited Practices
1.1 It shall be illegal for an employer to discriminate against any employee or applicant on the basis of that person's conduct during non working hours away from the employer's premises or on the basis of personal characteristics unless that conduct or characteristic affects the person's ability to properly fulfill the responsibilities of the position in question.

1.2 No employer shall collect information about the off-duty behavior or personal characteristics of employees or applicants which would not be a legitimate basis for personnel decisions under section 1.1.

2.Exceptions
2.1 Nothing in sections 1.1 and 1.2 shall be construed to make it illegal for an employer to:

2.2 Maintain a bona fide conflict of interest policy. This section applies only to current employees and does not affect the law of this state regarding restrictive covenants for former employees.

2.3 Refuse to employ a person whose off-duty conduct, while not incompatible with the requirements of the position, is incompatible with the fundamental objectives of the organization.

3.Enforcement
3.1 Any person who has been aggrieved by a violation of this act shall have a private right of civil action in any court of competent jurisdiction in this state.

3.2 In any such civil action the plaintiff shall have the burden of proving that he or she was qualified for the position in question. The defendant shall then have the burden of producing a basis for its decision which is consistent with this statute. The plaintiff then has the burden of proving by a preponderance of the evidence that the actual reason for the decision was off-duty behavior or a personal characteristic. The defendant then has the burden of proving that this behavior or characteristic is job related.

4.Remedies
4.1 A prevailing plaintiff in a civil action under this action is entitled to:

4.2 Injunctive relief.

4.3 An award of damages equal to the harm caused by the violation (both economic and non-economic) or $1,000, whichever is greater.

4.4 Full costs of action plus reasonable attorney's fees.

5.Waiver
5.1 The rights and procedures provided by this Act may not be waived by contract or otherwise, unless such waiver is part of a written settlement agreed to and signed by the parties to the pending action or complaint under this Act.

Comments on Drafting a Lifestyle Discrimination Statute 

The crucial choice in drafting a statute is deciding how broad the protection should be. There are four basic alternatives:

1. Prohibit Discrimination Based on Off-Duty Smoking
This is the most limited form of protection. While it protects one of the largest groups of victims, it leaves many unprotected. It also lends credence to the charge that the legislation is about smoking rather than autonomy and privacy. Its only real benefit is that its impact is limited and clearly defined. This can reduce, or even eliminate, opposition from organized business.

2. Prohibit Discrimination Based on Off-Duty Use of All Legal Substances
This formulation expands the coverage to off-duty drinking and, possibly, people with high cholesterol or other conditions related to diet.

3. Prohibit Discrimination Based on Any Legal Off-Duty Behavior
This is the broadest coverage that has yet been obtained. It clearly protects all dietary lifestyle choices and also choices of hobbies (skiing, motorcycles, etc.). It also prohibits discrimination based on sexual orientation in the 25 states that have repealed their sodomy laws. 

The pragmatic problem with this approach is that it is so sweeping that its exact impact is hard to determine in advance. This uncertainty increases opposition from organized business. While we have addressed all the legitimate concerns they have raised (see "exceptions"), there is concern that not all the legitimate concerns have yet been identified.

4. Prohibit Discrimination Based on Anything Not Related to Job Performance
This is the ideal way to write the statute. It not only prevents discrimination based on off-duty conduct, but prevents discrimination based on personal characteristics unrelated to job performance. All fat people are clearly protected under this approach. So are short people, the physically unattractive, and others who are often discriminated against, but whose condition is not serious enough to be classified as a "disability".

The second question is the position you want to take on illegal off-duty behavior.

The ideal position is that the employer's legitimate interest is limited to behavior that is related to job performance, and that even illegal off-duty behavior that does not affect a person's fitness for duty should not be grounds for discrimination. 

This position is probably politically untenable at the present time, especially where illegal drugs are involved. We may have to limit our bills to legal off-duty behavior, even in our initial proposal.

Assuming you choose general coverage option 3 or 4 above, there are a series of proposed exceptions from the business community to consider. Each of these purports to be a situation where a certain form of off-duty behavior is legal, but the employer has a legitimate reason for prohibiting it. These include:

1. Conflict of Interest: This is straightforward, and we have included it in the model.

2. Anti-nepotism Policies: Having relatives working together can create conflict. Many companies, however, have found ways to manage this without discriminating against relatives of employees. This is a judgment call. Our model does not include this exception.

3. Conduct Incompatible with Organizational Goals: The American Lung Association believes it should have the right to refuse to hire smokers. The model incorporates language which would allow this practice. It can be argued that this exception should be limited to high level employees.

4. Surcharges: Even when they support legislation banning lifestyle discrimination in hiring, organized business will lobby vigorously for the right to charge "unhealthy" employees more for company health insurance. (See introduction).

There is no compelling civil liberties argument against this in principle. It is not, however, a practice we want to encourage, and is not included in our model. 

The best position may be to remain neutral in principle, but insist on two conditions if a surcharge authorization is included in legislation:

1. Any difference in employee contributions must be supported by sound actuarial data on employer costs.

2. No surcharge may have a disparate impact on a group which is protected from job discrimination under federal or state law.

 LOBBYING STRATEGIES 

The political landscape is much different for lifestyle discrimination legislation than for other workplace rights bills.

We do not have strong opposition from organized business. The U.S. Chamber of Commerce has taken the position that it is wrong for an employer to refuse to hire (or fire) someone because of off-duty conduct unrelated to job performance. At least one state chamber (New Jersey) has actually supported lifestyle discrimination legislation.

In most states, disagreements over statutory drafting (especially damages) and a general reluctance to support legislation that restricts business led the chamber to remain neutral or offer lukewarm opposition. Seldom, however, have we encountered the strident opposition that has frustrated our efforts on other issues.

The real opposition comes from anti-smoking groups. This includes both national groups like the American Lung Association and local voluntary organizations. Although they are loath to admit it, these people are prohibitionists. They believe that smoking is so harmful that it should not be a matter of personal choice but should be stamped out by any available means. They are not very articulate or candid, but they ha

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