Is Leisure-time Smoking a Valid Employment Consideration?
This Article examines the current approaches to employment discrimination based on off-duty smoking. The majority of states have adopted statutes which prohibit enforcement of employment policies that penalize employees and potential employees for engaging in legal activities such as smoking. In those states that have not enacted off-duty privacy statutes, a growing number of employers have implemented policies precluding the employment of smokers. Do these all-or-nothing approaches make sense? Is there a viable middle ground that protects both employer and employee interests? This article explores the development of the differing views regarding employer scrutiny of employees legal, off-duty activities. The article considers both the privacy concerns of employees and the economic consequences to employers inherent in hiring or refusing to hire smokers. The article argues that the all-or-nothing approaches to off-duty smoking do not adequately balance the competing interests of employers and employees.