Cana non-smoker be discriminated against?

I work for a company that allowed smoking indoors in an unventilated room for over 10 years. I complained to management several times and the solution to the problem was to move me (the only non-smoker) to another office more then double the distance from my home. I have been written up due to being late since I have an hour an a half drive with no traffic/2 hours with. I feel that I’m being treated unfairly. No one at my job agrees with me. They tell me to bite my tongue and be happy I have a job. I have e-mailed the Department of Health and the Labor Board but I haven’t back.

Asked on September 22, 2010 under Employment Labor Law, New Jersey


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

The law only prevents certain forms of discrimination. For example, it is illegal to discriminate against people on the basis of race, religion, sex, age over 40, or disability. However, unless a form of discrimination is specifically barred by law, it is legal--for example, your boss *can* discriminate against you on the basis of your political views (as long as you're in the private sector; government employers can't). Anything not specifically barred is permitted as a basis for employers taking employment action.

Unfortunately for you, "non-smoker" is not a protected category; therefore, discrimination against non-smokers is permitted. The company could have simply fired you, for example, if you were unwilling to work under your work conditions.

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