Lifestyle Discrimination
The word "privacy" means many different things to different people. One
widely accepted meaning, however, is the right to be left alone. The
framers of our Constitution and Bill of Rights certainly embraced that
meaning, especially with regard to the sanctity of family life. This
cherished right is now under attack, but the government is not the primary
culprit. Private employers are using the power of the paycheck to tell their
employees what they can and cannot do in the privacy of their own
homes. The National Workrights Institute believes that what a person
does during non-working hours away from the workplace should not be
the basis for discrimination.
Q: What causes employers to engage in lifestyle discrimination?
A: The driving force behind this trend is economics, in particular the rising
cost of health care benefits provided by employers. Health care costs for
employers are increasing almost three times as fast as inflation. Several
factors are contributing to the high cost of health insurance, but the only
factor employers have substantial control over is their employees. Under
the pressure of economic considerations, employers may very well try to
regulate every health-related aspect of their employees' lives, including
diet, hobbies, sleep habits and even childbearing.
Q: Who is affected by lifestyle discrimination?
A: Several groups have been targeted by employers and subjected to
discriminatory practices, both on the job and during pre-employment
screening. Those most frequently discriminated against are smokers and
people who are overweight. A 1988 survey taken by the Administrative
Management Society revealed that six percent of employers (about 6,000
companies) were discriminating against off-duty smokers. That figure has
almost certainly risen. It is more difficult to quantify the number of
companies who discriminate against overweight people because this is
seldom an official corporate policy, but the evidence suggests that such
discrimination is at least as common. Other targeted groups are: people
with hypertension or high serum cholesterol levels, social drinkers, sports
enthusiasts and, potentially, people who are genetically prone to
contracting certain debilitating diseases.
Q: Why shouldn't employers be allowed to keep their costs down by hiring employees who won't generate high medical bills?
A: Employers' desire to keep their health care insurance costs down is
understandable, but it is unclear that employers can save much by
engaging in lifestyle discrimination. For example, the Bureau of National
Affairs reported in 1987 that 95 percent of companies that banned
smoking reported no financial savings. Furthermore, even if there were
significant savings, the price would be too high. To permit such
discrimination allows, in effect, the banning of perfectly capable workers
from any type of employment -- thus, denying them the opportunity to
earn a living for themselves and their families. Permitting employers to act
as "health police" will not solve our nation's health care crisis; it will only
destroy the private lives of working Americans.
Q: Why shouldn't employers be able to restrict their employees' "high-risk" activities?
A: Virtually every lifestyle choice we make has some health-related
consequence. Where do we draw the line as to what an employer can
regulate? Should an employer be able to forbid an employee from going
skiing? or riding a bicycle? or sunbathing on a Saturday afternoon? All of
these activities entail a health risk. The real issue here is the right of
individuals to lead the lives they choose. It is very important that we
preserve the distinction between company time and the sanctity of an
employee's private life. Employers should not be permitted to regulate our
lives 24 hours a day, seven days a week.
Q: Can't employers just charge a premium to employees whose activities raise the cost of health insurance?
A: Often, an employer claims to be charging "unhealthy" employees a
premium over the "normal" rate, while some employers claim to be giving
their "healthy" employees a discounted rate. Either way, however, some
employees are required to pay more for health insurance than others.
This may not be wrong in principle, but the employer should be able to
justify surcharges imposed on an employee whose lifestyle is deemed
"unhealthy" with sound actuarial data. The employer should be able to
demonstrate that an employee's behavior increases the employer's health
care costs by a measurable amount. The employer should also be
required to show that the surcharge is not discriminatory -- that is, does
not fall disproportionately on racial minorities or other protected groups.
Q: What is the NWI doing about it?
A. The NWI has found that state legislation is the best method for
protecting workers' private lives. Two states have already passed
comprehensive laws against lifestyle discrimination, and 21 other states
have laws that provide partial protection. Our goal is the enactment, _in
every state_, of statutes that protect all working Americans from
discrimination based on their off- duty activities.
Q: Isn't this creating a "civil right" to drink and smoke?
A: Not at all. The NWI does not oppose smoking bans in public
buildings, in the workplace or in locations where non-smokers may be
subjected to secondary smoke. We object only to bans on smoking,
drinking, diet and hobbies in a person's own home.
Q: Isn't the NWI just fronting for the tobacco lobby?
A: No. Lifestyle discrimination legislation is supported by a wide variety
of civil rights groups and labor organizations, as well as by a majority of
Americans. A 1992 National Consumers League poll showed that 84
percent of Americans believe that an employer does not have the right to
refuse to hire an overweight person. Ninety-three percent believe that an
employer does not have the right to base employment decisions on
whether an employee smokes after work, and ninety-six percent say it is
inappropriate to base employment decisions on whether a person drives a
motorcycle.
Public Opinion Poll on Employee Privacy
- An Employer does not have the right to refuse to hire an overweight person--84% agree
- An Employer does not have the right to base an employment decision on whether an employee smokes after work--93% agree
- An Employer does not have the right to base an employment decision on whether a person drives a motorcycle--96% agree
Source: National Consumers League 1992, National Opinion Poll On Workplace Privacy
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