American Civil Liberties Union Briefer

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 Lifestyle Discrimination in the Workplace
    Your Right to Privacy Under Attack
+-----------------------------------------+

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 American Civil
Liberties Union believes that what a person does during non-working hours
away from the workplace should not be the basis for discrimination.

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What causes employers to engage in lifestyle discrimination?
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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.

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Who is affected by lifestyle discrimination?
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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.

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Why shouldn't employers be allowed to keep their costs down by hiring
employees who won't generate high medical bills?
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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.

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Why shouldn't employers be able to restrict their employees' "high-risk"
activities?
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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.

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Can't employers just charge a premium to employees whose activities raise
the cost of health insurance?
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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.

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What is the ACLU doing about it?
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The ACLU 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.

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Isn't this creating a "civil right" to drink and smoke?
=======================================================

Not at all.  The ACLU 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.

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Isn't the ACLU just fronting for the tobacco lobby?
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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%

An Employer does not have the right to 
base an employment decision on 
whether an employee smokes after work.                    93%

An Employer does not have the right to 
base an employment decision on 
whether a person drives a motorcycle.                     96%

Source: National Consumers League 1992 
National Opinion Poll On Workplace Privacy


Produced by The ACLU National Task Force on Civil Liberties in the Workplace
American Civil Liberties Union
Department of Public Education
132 West 43rd Street
New York, NY 10036
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