2011-06-28 P-D Guest commentary: “Smokers need not apply”

A rather provocative title.

As I believe I’ve noted before, it was John Britton, former Jefferson City lobbyist for the now-defunct Tobacco Institute who inserted language into the Missouri Clean Air Act, passed in 1992, that made it illegal to discriminate against smokers in hiring decisions. There were a few exemptions, employers like SSM Healthcare mentioned below being one.

Guest commentary: Smokers need not apply

By Tyler S. Gibb | Posted: Tuesday, June 28, 2011 12:00 am

It has been a difficult time recently for smokers. Reports that the FDA issued new, more graphic warning labels and images for tobacco packaging followed on the heels of a report that SSM Health Care, a large health care provider in the St. Louis area, will not consider job applications from smokers.

SSM’s hiring policy is not discriminatory. Federal and state anti-discriminatory laws are intended to protect individuals in narrowly defined groups. These groups are identifiable by one or more immutable characteristics, such as ethnicity or having a disability. The theory behind these anti-discrimination laws is simple: Our society should not tolerate prejudice based upon characteristics that are outside the volition of the individual — one did not choose to be disabled anymore than one chose to be Hispanic. Traditionally, these groups lacked sufficient political or social power to protect themselves, thus, protective laws were created. Stiff penalties exist to punish employers who hire or fire workers based upon these group characteristics.

Being a smoker is not a recognized group in need of protection for two key reasons.

First, regardless of a smoker’s addiction to nicotine, at some point, beginning to use tobacco, regardless of peer-pressure, social norms or enticing advertising, was a personal choice. Second, smokers are not a socially or politically disadvantaged group that laws need to protect. Smoking cuts across all segments of society and includes people from all walks of life and all demographics.

Missouri anti-discrimination laws support this position. Unlike other states in which policies against hiring smokers have been successfully challenged in courts, Missouri law permits SSM’s policy.

But is SSM’s policy ethical? Assuming that by ethical we mean supportive of individuals and society’s endeavor to seek out the human flourishing, or the “good life,” as described by Aristotle and his ilk, the policy is ethical. SSM has a duty as a provider of health care to provide quality health care and, as an organization, to embody the ideals (or virtues, according to Aristotle) they espouse. A policy against hiring individuals with blue hair has no rational bearing on SSM’s organizational mission or on promoting the good life, and would thus be unethical. Encouraging employees to develop healthful habits, and enforcing those habits, is a necessary and ethically justifiable position by SSM.

As a private organization, SSM has more latitude in policing the personal lives of its employees than a public employer, such as state government. This assumes that the activities the employer chooses to police have a direct and identifiable relationship to the mission of the organization and do not run afoul of other existing laws.

If we can agree that smoking is bad for individuals, we may also agree that it is bad for society. SSM defended its hiring policy by providing statistics showing it is more expensive to employ a smoker versus a non-smoker. By implementing this policy, SSM, like other leading health care providers such as Cleveland Clinic, are increasing the pressure on individuals who consume a higher percentage of finite health care resources.

Public health campaigns long have sought to end smoking. First they tried to inform, then educate, then scare and, most recent, shame people into not using tobacco. SSM, within its limited sphere as one employer in the Midwest, is taking this campaign one step further by placing real, tangible, economic consequences on personal choices that negatively impact society at large.

There is little public support for outlawing tobacco use, although recent legislation has severely restricted where smoking can occur and governments at all levels levy ever-increasing taxes on tobacco. Americans love their freedoms too much, and rightly so. I should be able to smoke an exquisite hand-rolled cigar if I so choose. However, SSM is taking a rational, justifiable step in deciding what type of workforce it will employ by filtering job applications on the basis of an individual’s exercise of their rights. Some fear this will lead down a slippery slope of intrusion by employers into the personal lives of employees, but SSM’s policy is narrowly tailored, directly relevant to its role as a health care provider and fiscally prudent.

Perhaps in addition to disturbing photos of the ills of tobacco use, the U.S. Food and Drug Administration should warn the public that smoking could make you unemployable. Perhaps then individual choices will begin to support our society’s fiscal and health goals.

Tyler S. Gibb studied health care law at St. Louis University, where he is a doctoral student in health care ethics.

3 responses to “2011-06-28 P-D Guest commentary: “Smokers need not apply”

  1. Sheila Martin

    “Shame people”? The State of Missouri can, with the flourish of a pen, ban the selling of tobacco products. Who is kidding who here?

    mogasp comment: This is so far removed from reality, if one knows anything about state tobacco politics, as to be hilarious.

  2. I find the entire post by your lawyer friend offensive as should all Constitutionally minded Americans. There are no provisions in the Constitution that call for or allow for the so called “Protected Class” or the term “Public Accommodation” As a Libertarian I agree they have the right but the rational is patently offensive. The 14th amendment clearly calls for equal protection and makes no provisions for special classes. If it is illegal to discriminate against one American in hiring practices then under the constitution it is against the law to discriminate period. The progressives have used false science repeatedly throughout history, Eugenics is a classic example.

    The use of Meta-analysis is more of the same.

    Marshall P Keith

    mogasp reply: I’ve never met or heard of the author of the OpEd so he’s hardly my “lawyer friend.” You’re at liberty to disagree with him in your comment and I’m quite prepared to allow it. I posted this because it’s germaine to the broad subject on this blog.

  3. Tony Palazzolo

    Tyler makes some very good points. We have all along maintained that we support their right to hire whom they please. Why stop at smokers. Why not those that are obese, do not excercise and do not eat right. Why hire those that engage in risky behavior such as unprotected sex. Then why not apply this to doctors and surgeons (the policy only covers a fraction of doctors). At some this needs to be called what it is. A public relations scam.
    The first you heard of was in the press. Why, because that is what they wanted. They wanted to announce to the world because they felt that it would strengthen their image. If in the future they need to drop the policy they will do so very quietly. They will not notify the press.

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