By Kent Willis, Executive Director

When Bon Secours announced last week that it would no longer hire individuals who smoked, the calls came pouring in to the ACLU of Virginia.  Can they do this?  Doesn’t this violate some kind of law?
The answer is no, it doesn’t violate Virginia law.  But like a lot of simple answers, there’s a complex back story.  And, it happens to be one we should be paying attention to if we care about our privacy rights.
I’ll start with a slight correction.  In Virginia, local and state governments are prohibited from discriminating against current employees or applicants from employment because they are smokers.  This is the result of laws passed by the Virginia General Assembly in recent years that have nothing to do with employees’ rights and everything to do with the powerful tobacco industry’s desire to sell more tobacco.
This leaves private sector employers, like Bon Secours, free to discriminate against smokers in Virginia—although that was almost not the case.  In 1993, the Virginia General Assembly overwhelmingly passed a bill banning discrimination against smokers by all employers.  The Senate vote was 26 for, 13 against.  The House vote was 64 for and 32 against.
Governor L. Douglas Wilder took offense at the bill, which had been introduced by the tobacco industry’s strongest advocate, State Senator Virgil Goode.  Wilder said the bill elevated smokers to the same status as racial minorities and women, who were the rightful beneficiaries of state and federal civil rights law.  He vetoed the bill, making sure there would be no general civil rights law for Virginia’s smokers.
In all this back and forth no one—not Wilder, not the state legislators, not the tobacco lobbyists—got it right.  The issue, both now and then, is not the right to smoke but lifestyle discrimination, and the question is this: Should employers of any kind have a right to discriminate against employees based on legal activities in which they engage outside of the workplace, so long as those activities do not affect their work performance?
The ACLU has long supported bills that prevent employers from reaching deeply into the private lives of employees and dictating what they can and cannot do.  But the way most state laws are now structured, there are few restrictions on employers in this regard.
What most people don’t realize is that employers can discriminate for any reason they wish, so long as there is no law or constitutional provision preventing it.  So employment discrimination based on race, gender, disability, national origin and in some cases LGBT status is verboten, but otherwise the right to discriminate is fairly wide open.
Whether or not you are sympathetic to smokers, you should care about the significant reach that employers have into our private lives.  In Virginia, for example, an employer could refuse to hire you not only because you smoke, but because you have a couple of beers a week, or because you consume too many trans fats.
And as ridiculous as this seems, an employer with a grudge against the turkey business could even ban the traditional Thanksgiving bird from your tabletop on Thursday.
Couple this with the fact that employers are free to test employees as often as they like and under any circumstances, and you have the makings of a society in which employers can not only ban tobacco, alcohol, and trans fats, but they can also check to determine if you are consuming them.
So far, the market has tended to correct for employers who overreach.  If employees have the choice of working for companies that attempt to control their private lives or companies that don’t, they’ll choose the latter.
But when unemployment is high, employees are far more likely to accept the onerous conditions that employers place on them.
We have civil rights laws put in place to prevent discrimination based on stereotyping.  We have labor laws that, while still inadequate in many ways, help to make sure that pay scales are fair and that working conditions are safe. But there is virtually nothing that prevents private employers from placing limits on what we do in our private time away from work.
In the 1990s there was a strong movement afoot to pass laws preventing lifestyle discrimination, but the movement never caught on.  Maybe the silver lining in the new Bon Secours no smoking policy is that it will reignite the lifestyle discrimination debate.