Schussing down the slippery slope of lifestyle discrimination

Issue Vol. 9 No. 3 January 2007 By Harvey A. Schwartz

Some cases are impossible to turn down.

Ring, ring, ring.


“I just got fired.”

“Too bad. What happened?”

“I flunked a drug test.”

“Sorry, but those things happen.”

“I tested positive.”

“Well, don’t do the crime if you can’t do the time.”

“Positive, positive for nicotine. They don’t employ smokers. Makes their insurance too expensive, they said.”

“When can we get together?”

Thus was spawned Rodrigues v. The Scotts Company, LLC in federal court in Boston, a case in which Scotts, the world’s leading grub killer and lawn seed purveyor, boasts of its refusal to hire or employ smokers. Among the corporation’s justifications for this policy, besides its beneficent concern for its workers’ health, is fear of increased medical insurance costs.

The specter of rising medical insurance costs haunts every employer, or at least every employer that still provides some measure of insurance benefits. This case will test just how terrifying that specter is, and whether it can be used to justify until-now unheard of intrusions into the private, away-from-the-workplace activities of employees. This case perches at the peak of what could be a black diamond slippery slope down which we can expect:

“Sorry Joe, but your cholesterol came in awfully high. You’ve got two months to get it under 200 or we’ll have to let you go.”

“Sally, it’s come to our attention that your husband was seen smoking. You know company policy is that nobody on our health plan is allowed to smoke. If you want to keep your job, he’ll have to submit weekly urine samples.”

“John, putting on some weight there. The company nurse says your body-mass index is in the red zone. We can’t have that. Shape up or ship out, buddy.”

“Jane, sky diving? Really, now. You don’t expect your fellow employees to have to carry the medical expenses if you land in the hospital, do you? One more jump and we’ll have to let you go.”

“Phil, congratulations on the new baby. Here is your severance agreement. You know how unfair it would be to everybody else here if our insurance costs went up because of all the medical costs for children. You knew when you joined this company that we have a no-parent policy.”

Paranoia? Rantings from the far left of employees’ rights? Perhaps, but 20 years ago, virtually everybody would have hung the same label on speculation about a “we don’t employ smokers” policy. The business justification — and legal support — for firing a smoker is identical to that for firing an overweight, compulsive eater with high cholesterol. Both are engaging in harmful, socially-frowned-upon, yet entirely voluntary activities, taking actions that are fairly certain to imperil their health and increase the cost of providing health care, costs borne by their employer.
What are the legal grounds for opposing such policies?

Rodrigues’ first defense is that old friend of employees (choke choke), ERISA, the Employee Retirement Income Security Act, a bugaboo employees usually flee from as if it were Godzilla strolling through downtown Tokyo. ERISA Section 510, 29 USCS §1140, states,

It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant . . . for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan . . .

To prevail in such a claim, a plaintiff must show that her employer took an adverse action against her “with the specific intent of interfering with the employee’s ERISA benefits.” Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995). A paradigm example of a §1140 violation was stated in Fleming v. Ayers & Assoc., 948 F.2d 993 (6th Cir. 1991), in which the Sixth Circuit had no difficulty finding wrongful ERISA discrimination where a woman was hired one day and then fired the next day after the employer learned that she had recently given birth to a child with hydrocephalus and had incurred more than $80,000 in medical fees. Similarly, in Fitzgerald v. Codex Corp., 882 F.2d 586 (1st Cir. 1989), the First Circuit held that a complaint stated a Section 510 violation when it alleged that an employee was fired because the employer did not want to be compelled to provide medical insurance coverage to the employee’s former wife, who was suing the company for such coverage. Firing an employee because the employer wants to avoid providing benefits to that employee (or his family) is the classic Section 510 violation.

Scotts’ CEO acknowledges this ERISA hurdle. In a cover story about the Rodrigues case in BusinessWeek, Scotts Chief Executive Officer James Hagedorn said, “If you choose to smoke, then don’t ask me to cover your insurance. Well, some federal laws say we can’t do that. They say we can’t transfer the risk to the person behaving in a way that will cost more. The rules are lining up so you can’t assign the risk where it belongs.”

When business leaders complain about “the rules” costing them — and, presumably, their lawn-seed-spreading customers — serious money, Congress tends to listen, and rework “the rules.” It will be unfortunate if the solution to the health care cost crisis turns out to be to punish people who get sick. Such a “solution” will not solve anything, except maybe employers’ health care costs. If the country is in the midst of a “crisis” now because so many people are uninsured, what will the “crisis” escalate to when these people become not only uninsured, but also unemployed because corporations refuse to hire those people who will incur the greatest medical expenses?

Rodrigues offers other legal grounds for opposing Scotts’ nicotine-free workforce. Mandatory urine testing for the presence of nicotine violates Massachusetts’ privacy statute, G.L.c. 214 §1B, he claims. That statute says,

A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.

When workplace drug testing was in its infancy, the privacy statute was held up by employees as their bulwark. Employees tended to do poorly in these claims, however, with decision after decision finding that an employer’s need to know whether its employees were impaired by illegal substances outweighed employee privacy interests. The high-water mark for employee privacy was in Webster v. Motorola, Inc., 418 Mass. 425, 637 N.E.2d 203 (1994). In that case, two Motorola employees were randomly selected to provide urine samples for testing for marijuana, cocaine, opiates, phencyclidine (PCP) and amphetamines. One employee tested positive; the other refused to participate in the testing.

The Supreme Judicial Court resolved the case in a fact-specific, finely tuned decision, setting a standard that continues to be applied. One plaintiff, Webster, worked in outside sales and drove a company car as part of his job. The SJC held that the company’s need to know if he was too impaired to safely operate the vehicle outweighed his privacy interests.

The other employee, Joyce, however, sat at a keyboard and wrote user manuals and software documentation. Even though these manuals were used by the military and the Federal Aviation Administration, the SJC found that his privacy interests outweighed Motorola’s right to compel him to urinate in a cup. The Court said,

We have recognized that requiring an employee to submit to urinalysis involves a significant invasion of privacy. The act of urination is inherently private, and beyond the act itself, individuals have a privacy interest in what may be detected through urine testing. Additionally, to the extent that it may be requested to rebut an initial positive test result, information concerning an employee’s medical conditions is also within the realm of one’s privacy interest.

418 Mass. at 431, 637 N.E.2d at 207 (internal citations omitted). Rodrigues argues that Scotts’ need to know whether he smokes, in private, away from work, is not sufficient to outweigh his privacy interests in not being compelled to submit to drug testing. “An individual has reasonable expectations of privacy regarding the information which can be extracted from a urine specimen.” Horsemen’s Benevolent and Protective Association, Inc. v. State Racing Commission, 403 Mass. 692, 700, 532 N.E.2d 644 (1989).

 Such balancing tests are notorious for the discretion they give to judges. An interest that is heavy for one judge can just as easily be a mere feather to another. It remains to be seen whether Scotts’ interest in cutting health care costs is a legal sparrow or an elephant, or even a legally permissible justification at all.

Rodrigues offers other legal justifications for opposing the nicotine-free policy. Public policy supports employee rights to engage in legal activities outside the workplace that do not interfere with job performance, he alleges. Similarly, firing him for doing something the law permits him to do violates his rights under the Massachusetts Civil Rights Act, G.L.c. 12 §11I. Other claims could have been brought under Title VII, which prohibits certain pre-employment physical examinations, or even under the Americans With Disabilities Act, which prohibits discrimination against persons because of their “perceived” disability.”

Perhaps the real resolution to the question of whether employers can fire employees because of their legal away-from-work activities should come from legislation rather than litigation. Thirty-four or so states have statutes that do just that, to one extent or another. Many of these statutes were the result of intensive lobbying by the tobacco industry. Some laws exclusively pertain to “tobacco products,” but many contain broad wording to protect employees who use “lawful products.” Such laws drew strong support from groups as diverse as the American Civil Liberties Union, organized labor, the National Association for the Advancement of Fat Acceptance, the American Motorcycle Association and the tobacco industry. For example, a New Jersey statute, in a nod to fairness, says, “No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions or other privileges of employment because that person does or does not smoke or use other tobacco products, unless the employer has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee.” N.J. Stat. §34:6B-1 (2007).

Some statutes go beyond the bounds of tobacco. Minnesota law, for example, states,

An employer may not refuse to hire a job applicant or discipline or discharge an employee because the applicant or employee engages in or has engaged in the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours. For purposes of this section, “lawful consumable products” means products whose use or enjoyment is lawful and which are consumed during use or enjoyment, and includes food, alcoholic or nonalcoholic beverages, and tobacco.

Minn. Stat. §181.938 (2006). Presumably, in Minnesota an employee can’t be fired for eating pork rinds at home.

A few states, including New York, California and Colorado, out and out protect employees’ rights to engage in any lawful, out-of-work activity. New York law, for example, makes it “unlawful for any employer . . . to refuse to hire . . . or to discharge from employment or otherwise discriminate against an individual . . . because of [among other activities]:

b. an individual’s legal use of consumable products prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property; or

c. an individual’s legal recreational activities outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property.”
NY CLS Labor §201-d (2007).

Regardless of the outcome of the Rodrigues case (and a decision on the corporation’s motion to dismiss is pending), Massachusetts law is noteworthy for its failure to offer similar protection to employees. The right to do what the law permits is a fundamental freedom, including activities that some employers might believe to be dangerous, ill advised, unhealthy or unpleasant. Employers purchase their workers’ time and skill, not the right to control their private lives. That relationship was called something else, something other than employment, something that was banned by the 13th Amendment.

Employers’ efforts to control their employees’ private lives are nothing new. When Henry Ford raised his workers’ wages to $5 a day, he also established Ford’s “Sociological Department” to make sure they didn’t blow the money on booze and vice. He banned smoking because he thought that tobacco was unhealthy. “I want the whole organization dominated by a just, generous and humane policy,” he said. He implemented this policy by having the department make surprise visits to workers’ homes and firing men who had problems with finances, gambled or got drunk.

Ford’s “innovations” at the beginning of the last century are surfacing again at the beginning of the present century. This time, employers are cloaking their paternalism in the rubric of good business sense. Scotts argued to the federal court that its policy of not employing smokers addressed “sound business concerns” and was simply a means of “controlling the ever-increasing cost of health and disability insurance.” Most laws that protect workers were designed to protect them from such sound business decisions, from policies that benefited the employer’s bottom line at the expense of workers.

Massachusetts should have a similar law protecting workers’ rights to engage in lawful, private activities. What employees do in their private lives, on their private time, that has no effect on their job performance is, quite simply, none of their employer’s business.