Discrimination against smokers – is it fair?
Discrimination against smokers is on the increase. Smokers are banned by law from lighting up in the workplace, in pubs, at bus stops, on beaches, in taxis, in many publicly shared spaces and possibly even in their back garden or on their balconies if their smoke drifts into a neighbour’s home. (For more information please see Smoking on balconies and the law.)
Now increasingly jobseekers who happen to be smokers are being confronted with advertisements that specify only non-smokers need apply.
The jobs range from personal trainers to disability workers, office workers and receptionists, hospitality workers and hospital workers.
It’s a controversial topic and one where the law seems to have a bet each way. While the law bans smoking in many areas, the law also says people should not be discriminated against.
Smokers support groups argue it is a legal activity. Smokers generally accept their smoke can injure other people and they usually obey the law by leaving a building so their smoke doesn’t reach other people. Smokers know tobacco is bad for them but argue it is their choice to drag the lethal cocktail into their lungs. If smokers are to be condemned for risking their health, why not people who eat fatty food, drink too much, go sky-diving or play rugby?
Anti-smoking groups argue employers, especially hospitals and health organisations, have the right not to employ smokers. It’s a productivity issue as the habit requires them to take smoko breaks.
Some argue the smell left on smokers puts off non-smokers in their staff and clients they deal with.
Some employers see smokers as a bad investment for their time and expense in training them as their health is likely to suffer in the years ahead.
The law is clear – sort of. Job advertisements must not discriminate. The law says discrimination occurs when someone is treated unfairly because they belong to a particular group of people or have a particular characteristic. Listed by the Anti-Discrimination Board of NSW as against the law are discrimination on the grounds of sex, race, age, religion, marital or domestic status, sexual orientation, pregnancy, disability, transexuality, who you are related to or associate with and responsibility as a carer.
Nowhere does it list smoking as grounds for claiming discrimination. So legally the situation is unclear. “It is discriminatory, but not unlawful” said the head of the Queensland Anti-Discrimination Board. It would be a very interesting test case.
Legal advice to employers would be to establish the need not to smoke is an inherent requirement of the job they are advertising before they say “Smokers need not apply”.