Shouldn't employers be able to keep their costs down by hiring employees who won't generate high medical bills?

It is unfair and dangerous to allow employers to discriminate against certain employees because they believe their private lifestyle choices are unhealthy and lead to higher health insurance costs. To begin with, it is unclear that employers can achieve significant savings through lifestyle discrimination. Also, if it becomes acceptable to deny employment because of potentially higher health care costs, people who are capable of working will be effectively banned from any employment, preventing them from providing for themselves or their dependents. Finally, even if employers could achieve substantial savings, sacrificing the private lives of all working Americans is too high a price to pay.

Why shouldn't employers be able to restrict their employees' high-risk behavior?

Risks are associated with nearly every personal lifestyle choice we make < from smoking cigarettes, to sitting in the sun, to having children. Where do we draw the line as to what our employer can regulate? The real issue here is the individual right to lead our lives as we choose. It is important that we preserve the distinction between company time and the sanctity of our private lives.

Isn't it wrong to encourage people to smoke with protective legislation?

The government has the obligation to insure that people understand the health risks of smoking. Government and employers ought to help people who want to quit smoking. Ultimately, however, it is up to the individual to decide if they want to engage in risky behavior such as smoking or riding a motorcycle. What is wrong is using the power of the government or the paycheck to tell other people how to live.

No. The NWI does not oppose smoking bans in public buildings, in the workplace, or in other locations where non-smokers may be subjected to sidestream smoke. We object only to bans on smoking (or beer or junk food) in a person's own home.

Isn't lifestyle discrimination legislation just a tool of tobacco companies?

2.Exceptions

2.1 Nothing in sections 1.1 and 1.2 shall be construed to make it illegal for an employer to:

2.2 Maintain a bona fide conflict of interest policy. This section applies only to current employees and does not affect the law of this state regarding restrictive covenants for former employees.

2.3 Refuse to employ a person whose off-duty conduct, while not incompatible with the requirements of the position, is incompatible with the fundamental objectives of the organization.

3.Enforcement

3.1 Any person who has been aggrieved by a violation of this act shall have a private right of civil action in any court of competent jurisdiction in this state.

3.2 In any such civil action the plaintiff shall have the burden of proving that he or she was qualified for the position in question. The defendant shall then have the burden of producing a basis for its decision which is consistent with this statute. The plaintiff then has the burden of proving by a preponderance of the evidence that the actual reason for the decision was off-duty behavior or a personal characteristic. The defendant then has the burden of proving that this behavior or characteristic is job related.

4.Remedies

4.1 A prevailing plaintiff in a civil action under this action is entitled to:

4.2 Injunctive relief.

4.3 An award of damages equal to the harm caused by the violation (both economic and non-economic) or $1,000, whichever is greater.

4.4 Full costs of action plus reasonable attorney's fees.

5.Waiver

5.1 The rights and procedures provided by this Act may not be waived by contract or otherwise, unless such waiver is part of a written settlement agreed to and signed by the parties to the pending action or complaint under this Act.

Comments on Drafting a Lifestyle Discrimination Statute

The crucial choice in drafting a statute is deciding how broad the protection should be. There are four basic alternatives:

1. Prohibit Discrimination Based on Off-Duty Smoking This is the most limited form of protection. While it protects one of the largest groups of victims, it leaves many unprotected. It also lends credence to the charge that the legislation is about smoking rather than autonomy and privacy. Its only real benefit is that its impact is limited and clearly defined. This can reduce, or even eliminate, opposition from organized business.
2. Prohibit Discrimination Based on Off-Duty Use of All Legal Substances This formulation expands the coverage to off-duty drinking and, possibly, people with high cholesterol or other conditions related to diet.
3. Prohibit Discrimination Based on Any Legal Off-Duty Behavior This is the broadest coverage that has yet been obtained. It clearly protects all dietary lifestyle choices and also choices of hobbies (skiing, motorcycles, etc.). It also prohibits discrimination based on sexual orientation in the 25 states that have repealed their sodomy laws.

   The pragmatic problem with this approach is that it is so sweeping that its exact impact is hard to determine in advance. This uncertainty increases opposition from organized business. While we have addressed all the legitimate concerns they have raised (see "exceptions"), there is concern that not all the legitimate concerns have yet been identified.

4. Prohibit Discrimination Based on Anything Not Related to Job Performance This is the ideal way to write the statute. It not only prevents discrimination based on off-duty conduct, but prevents discrimination based on personal characteristics unrelated to job performance. All fat people are clearly protected under this approach. So are short people, the physically unattractive, and others who are often discriminated against, but whose condition is not serious enough to be classified as a "disability".

The second question is the position you want to take on illegal off-duty behavior.

The ideal position is that the employer's legitimate interest is limited to behavior that is related to job performance, and that even illegal off-duty behavior that does not affect a person's fitness for duty should not be grounds for discrimination.

This position is probably politically untenable at the present time, especially where illegal drugs are involved. We may have to limit our bills to legal off-duty behavior, even in our initial proposal.

Assuming you choose general coverage option 3 or 4 above, there are a series of proposed exceptions from the business community to consider. Each of these purports to be a situation where a certain form of off-duty behavior is legal, but the employer has a legitimate reason for prohibiting it. These include:

1. Conflict of Interest: This is straightforward, and we have included it in the model.
2. Anti-nepotism Policies: Having relatives working together can create conflict. Many companies, however, have found ways to manage this without discriminating against relatives of employees. This is a judgment call. Our model does not include this exception.
3. Conduct Incompatible with Organizational Goals: The American Lung Association believes it should have the right to refuse to hire smokers. The model incorporates language which would allow this practice. It can be argued that this exception should be limited to high level employees.
4. Surcharges: Even when they support legislation banning lifestyle discrimination in hiring, organized business will lobby vigorously for the right to charge "unhealthy" employees more for company health insurance. (See introduction).

There is no compelling civil liberties argument against this in principle. It is not, however, a practice we want to encourage, and is not included in our model.

The best position may be to remain neutral in principle, but insist on two conditions if a surcharge authorization is included in legislation:

1. Any difference in employee contributions must be supported by sound actuarial data on employer costs.
2. No surcharge may have a disparate impact on a group which is protected from job discrimination under federal or state law.

LOBBYING STRATEGIES

The political landscape is much different for lifestyle discrimination legislation than for other workplace rights bills.

We do not have strong opposition from organized business. The U.S. Chamber of Commerce has taken the position that it is wrong for an employer to refuse to hire (or fire) someone because of off-duty conduct unrelated to job performance. At least one state chamber (New Jersey) has actually supported lifestyle discrimination legislation.

In most states, disagreements over statutory drafting (especially damages) and a general reluctance to support legislation that restricts business led the chamber to remain neutral or offer lukewarm opposition. Seldom, however, have we encountered the strident opposition that has frustrated our efforts on other issues.

The real opposition comes from anti-smoking groups. This includes both national groups like the American Lung Association and local voluntary organizations. Although they are loath to admit it, these people are prohibitionists. They believe that smoking is so harmful that it should not be a matter of personal choice but should be stamped out by any available means. They are not very articulate or candid, but they have a great asset in public antipathy toward smoking, and they know how to play to it.

Critical to this issue, as usual, is organized labor. The AFL-CIO and the Communications Workers of America (CWA) have generally supported lifestyle legislation. We have also had support from police and firefighters unions (those most likely to be victims). Another likely ally is the Carpenters and Joiners union. Their President, Sigurd Lucassen, has been labor's spokesman against outright bans on workplace smoking.

This is a relatively new issue, however, and one cannot assume that all labor leaders are familiar with it or will automatically make it a priority. As with any emerging issue, support for lifestyle discrimination laws must be developed.

Other progressive groups, including religious organizations, should support this legislation, but have generally not yet been asked.

PRESENTING THE ISSUE

It is always true that the way an issue is framed influences, and often determines, the response. That is especially true here. Opponents will claim that the issue is smoking, even if the bill covers all legal off duty behavior. The public's tendency to think in the concrete rather than the abstract, the fact that smokers are among the most common victims, and the fact that tobacco companies support the legislation, all work in our opponents' favor. If they succeed in casting the issue this way, we will surely lose.

The real issue here is privacy--the right of all adults to live as they choose in their own homes. The public strongly supports this value. They are not inclined to view the issue this way, and you will have to repeat our position ad nauseum. But experience has shown that with enough repetition, the public will understand the real issue. Once this happens, we will be successful.

Do's and Dont's

Labor Law- not Civil Rights

Some states have attempted to create lifestyle legislation by amending their state civil rights act. This lends credence to the charge that we are trying to turn smoking (or drinking) into a civil right. It also offends some people in the civil rights community.

It is vastly better to place this protection in the state labor law. It is also more correct; the law's purpose is to modify the legal relationship of employers and employees.

Health Economics

There is in fact a great deal of uncertainty over the health care cost implication of various lifestyle choices. Even where a given behavior clearly causes a measurable increase in health care costs, it is not necessarily true that these costs will be paid by employers.

Health care economics, however, is not the issue. The issue is privacy. Any discussion of economics plays into the hands of those who would mislead the public by mis- stating the issue.

Spokespeople