What constitutes job discrimination?

UPDATED: Oct 11, 2011

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What constitutes job discrimination?

I accepted a job with a medical center. They have a policy that after a certain date (7 months ago) to not hire smokers, and to fire smokers who were hired after that date. Smokers hired before that date are “grandfathered” in and not subject to the rule. We couldn’t even smoke at home. I applied and was hired after that date. I tried to stop smoking but could not and resigned. We couldn’t use smoking patches. Nothing. I was drawing unemployment prior to taking that job. Now I am being denied unemployment benefits because of this. My argument is that this job is unsuitable for someone who has smoked for over 40 years. Other hospitals in the community do not have this work rule. To me it is unreasonable and fascist.

Asked on October 11, 2011 under Employment Labor Law, Illinois


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Unfortunately, whether you believe the rule is unreasonable and fascist--or even whether it is unreasonable and fascist in some objective sense--does not  matter. Contrary to popular belief, companies are allowed to discriminate on a great many bases: they can refuse to hire, or choose to fire, someone because of the person's political beliefs (the 1st Amendment does not apply to private business), because of the movies the person likes (they could decide someone who likes "slasher" films is unsuitable for customer contact), because of the person's hobbies (they could choose to not hire a martial artist, if they believed such a person likely to be violent), etc. The only thing they can't do is discriminate on the basis of certain protected categories, such as race, religion, age over 40, sex, or disability. Other than that, they can discriminate. I do not believe that smoking falls under one of these categories--for example, I don't believe it's a disability.

Moreover, even those categories are not absolute. An employer may still discriminate if necessary for the job--e.g., refuse to hire woman as mens locker room attendants in a health club. A strong argument could be made that even if smoking were, for the sake of argument, considered a disability, that a medical center could still refuse to employ smokers because the second hand smoke could affect patients or treatment.

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