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Lifestyle Discrimination

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Lifestyle Discrimination Legislative Briefing Series Lifestyle Discrimination I Introduction, p Questions and swers, pg. 3 & 4 Current Legal Status, pg. 5,6,7 Model Bill pg. 8,9,10 ~obb~in~dtrategies,pg. 11,12,13 Bibliography, pg. 14 page 1 of 14 INTRODUC'i'IO?:-.T3 LIFESTYLE DISCRIMINATION IN THE WORKPLACE In 1989, Daniel Winn,an employee at the Best Lock Corporation in Indiana, admitted to his superiors that several ears earlier he had a few drinks in a bar with friends. Mr. Winn was promptly fire d' on the basis of Best Lock's policy that its employees can- not drink alcohol under any circumstanceu. "Two officials at the Ford Meter Box Co. in Wabash, Ind, ulled [Janice Bone] aside and escorted her from the plant." Bone is a smoker, and alt Rough she did not smoke on the job, Ford's policy barred her from smoking at all. "I was very shocked. It's deuas- fating when this happens to you". said Bone.1 In Michi an, Donna Oxear , a bus driver, was unable during a physical exam to run inplace Ior three minutes. J~ear~,who weighs over 368pounds was simply terminat- ed after 26 years employment.2 Americans have lon accepted that employers have a certain degree of control over what we do while at ill e workplace, But increasing numbersof employers arsdan er- ourly broadening the sphere of their control to include what employees do m tei? own homes. Many employers now refuse to hire people whose private lives are deemed "unhealthy". A few even fire existing employees who don't change their lifes- tyle to meet new company demands. The most common victims of this type of dis' crimination are smokers and fat people.3 According to a 1988 survey taken by the Administrative Management Society, 6% of all employers (about 6,000 companies) now discriminate agalnst off-dut smokers. The number has almost certainly in- creased since then, It is more di lcult to estimate the number of companies which I discriminate a ainst fat peo le, since& this is seldom an official co7t.e policy. How- ever, anecdot.f evidence co Plected by the National Association or Advancement of Fat Acceptance (NAAFA) suggests that discrimination against fat eople is even more common. Other employers refuse to hire people who drink alcog 01, have high cholesterol, or ride motorcycles. The drivin force behind this trend is economics. Health care costs for emplo era are increasing% Y at least 16% per ye@, almost 9 times as fast as inflation. AT though several f&& contribute t6thew rising costs, the only factor emplo era have contiol over is their emdovees. With such an incentive, employers may we r1 try to dominate every health-rela6d aspect of their employee$ liies,-includih diet,-exercise and sleep habits-. and without protective lepslation they will succeeIi . The early Americana adopted the Bill of Ri hts to limit the government's involve- ment in their lives and modern Americans !emonstrate the same tolerate intrusion wheber b government or by employer. According to a by the National Consumers Eeagues. 81%of Americans believe that an no ri ht to refuse to hire an overweight person. 76% believe employers have no right toce fuse to hire a smoker. 73% believe employers have no right to require an employ- ' ee or applicant to change their diet. ul I.' ul , .-hJ P 1. 'Prtvate Ilves becom~ngemployers'bus~nerr.~Ph~lad~l~h~aInauirer.March 31. 1991 2. Schlorb, John Emploqment Oi~(rtm~nationBasedon Em~loveeL~fertvles.A.C.L.U.Document Bank IP13 (19911 ul Thlc 1s the term fat people have to de~rlbethemselves. m 3. chosen 01 4. Stascla. A New Look st Wellne$sPlans: Well.Oertaned Proqrams Trim Fat from Healtn Carelab, 8us.lns. February 18, v 1991 page 2 of 14 Recognizing that refusing to hire people for reasons unrelated to job erformance is unfair and often prevents the company from hiring the best qualifie t! person, some employers have adopted a different strategy. Employees who have lifestyles the em- ployer considers unhealthy are required to pay more for their company health insur- ance. Some employers say they are charging unhealthy employees a premium over their "normal" rate, some say they are giving healthy employees a discount. Either way, one employee is paying more for their health care than another. tion increases tionshi s may exampP e, the smok~ngreported no found no The methods used to enforce these policies raise independent civil liberties issues. Most em loyers currently take an employee's word that they are not violating the ru- les for o8 -duty behavior. As discrimination grows more common, however, it will be. come more dcficult to simply avoid companies with whose policies one doesn't com- ly, People will take jobs, not reveal their lifestyle, and hope the employer doesn't End out. When this occurs, employers will have to hire spies to follow people away from work andlor require frequent universal medical tesung (such as urinalysis) in order to enforce the policy. i. page 3 of 14 QUESTIONS AND ANSWERS: LIFESTYLE DISCRIMINATION .,.., .- ...., " . Which companies practice lifestyle discrimination? There is no comprehensive list of companies which practice lifestyle discrimination. A few examples of employers who discriminate include: Cardinal Industries refuses to hire smokers stating it "only hires nonsmokers and 'ves every applicant a urine test and promises to fire those who say they have quit, rut don't." U-Haul International charges its smoking employees an extra $130 per year for health insurance. Pointe Resorts, which operates 3 hotels in Phoenix, pays 40% more of the insurance costs of employees with a normal weight than of those who are overweight. In 1990, the city government of Athens, Georgia initiated a health screenin for ro- spective city workers. Applicants whose cholesterol level was in the worst 2f % oP na- tional rangks were sirnpijineligible for any position. L Shouldn't employers be able to keep their costs down by hiring employees who won't generate high medical bills? k It is unfair and dangerous to allow employers to discriminate against certain employ- ees because they believe their private lifestyle choices are unhealthy and lead to hi her health insurance costs. To begin wth, it is unclear that em loyers can a 8ieve significant savings through lifestyle discrimination. Also, if it L?comes ac- ce table to deny employment because of potentially higher health care costa, people wI! o are capable of working will beeffectively banned from any em loyment, prevent- ing them from providing for themselves or their dependents. Fina fly, even if em loy- ers can achieve substantial savings, sacrificing the private lives of all worE ing Americans istao high a price to pay. Wh shouldn't employers be able to restrict their employees' high-risk behav. ior7 Risks are associated with nearly every personal lifest le choice we make -- from smoking ci arettes, to sitting in the sun, to having chi1h en. Where do we draw the line as to w% at our emplo er can replate? The real issue here is the individual ri ht to lead our lives as we cl case. It is important that we preserve the distinction !ie- tween company time and the sanctity of our private lives, Isn't it wrong to encqurage people to smoke with protective legislation? the health risks to quit smok- power of the Isn't this creating r right to smoke? ..- .. .._.___._ No. The A.C.L.U.does not oppose smoking balis in public buildin s, in the work- place, or in other locations where non-smokers may be subjected td sif estream smoke. We object only to bans on smoking (or beer orjunk food) in a person's own home. Isn't lifestyle discrimination legislation just a tool of tobacco companies? No. Lifestyle discrimination legislation is supported by a variety of civil rights and labor organizations and by the majority of Americans. page 5 of I4 Current Legal Status of Lifestyle Discrimination Federal Law At the federal level, civil rights laws barring discrimination on the basis of race, gender or disability may apply to lifestyle discrimination, Race and Gender There is demo aphic data showing that blacks and young women smoke in dis- proportionate Py large numbers. It is possible that this disproportion is large enough to constitute disparate im act under Title VII. However, even a mini- ma1 showing of increased medica f costs would constitute "business necessity" under current supreme court caselaw. If the Civil Rights Act of 1991 passes, restorin the ori 'nal, more stringent, definition of business necessity, a Title M chalf enge to dP'scrimination against smokers might become viable. Disabilit d~mericanswith Disabilities Act (ADA) prohibits emplopent dis- criinination against people with "any physical or mental impairment that sub* stantiall lirmts one or more of an individual's major life activities" and also people w o are "regarded as having such an impairment." K a, While the ADA does not take effect until Jul of 1992, employees of federal a encies and federal contractors alread have tiis protection under section 504 o f the federal ~ehabilitation~ct of 197I While there is not yet caselaw on point, it can be argued that certain forms of li- festyle discrimination are illegal under ADA. The critical issue is whether the inhvidual's limitation (real or perceived) is serious enough to qualify as a "dis- ability". State Law Most states have statutes parallel to the federal Rehabilitation Act of 1973, which cover both public and private sector employees, There have already been state court decisions holding that under these statutes fat eople are rotected from dis- crimination, For exam le, New York Court of Appealsi eld that 2erox Corp.
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