Is it discrimination to tell employees they are not allowed to smoke outside in designated smoking areas?

I work in a non-smoking hotel with outside designated smoking areas.
Employees are not given breaks nor lunch hours. They eat or take a
break only when they can not for more than a few minutes. Now they
are being told they can no longer smoke. Employees who smoke are now
expected to go eight hours without doing so. Is this legal?

Asked on September 22, 2018 under Employment Labor Law, Texas

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

In order to make a claim for "discrimination" in the workplace, an employee's treatment must be based on their inclusion in a legally "protected class" (i.e. must be based their on race, religion, nationality, age (over 40), gender or disability). Merely receiving treated lesser treatment due to your being a smoker does not constitute a form of legally actionable discrimination since smoking is not legally protected. The fact is that absent such discrimination or an employment/union agreement to the contrary or discrimination, not all workers need be treated the same or even fairly.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

It is perfectly legal. People often think "discrimination" is any treatment they feel unfair or unwarranted, but in an employment context, "discrimination" is only treating someone worse or differently due to one of a few specifically defined reasons, princapally due to his/her race, color, national origin, age 40 or over, religion, disability, or sex. However, "smoker" is not a protected category, so there there is no protection afforded to smoking; an employer may restrict or even ban it outright for its employees any way it wants.


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