Asking an applicant if he smokes may seem like a valid question, especially if your company has a no-smoking policy. However, your inquiry might get you into hot water by violating federal or state anti-discrimination employment laws. Before you ask about an applicant’s smoking habit, ask yourself if you can justify the question as an indicator of the person’s hiring suitability.
Asking an applicant if he smokes suggests that you’ll consider that information when deciding whether to hire him. If he doesn’t get the job, he could claim discrimination and file a civil lawsuit or a complaint with state or federal authorities. Even if that’s not the reason you turned him down, a public complaint could tarnish your company’s image and drag you into lengthy legal proceedings. In addition, you may have difficulty proving your case, especially if you can’t point to another clear reason you chose another applicant.
By law, you can’t ask about an applicant’s physical or mental health, and inquiring if an applicant smokes touches on both categories. For example, a history of smoking puts an individual at greater risk of health problems such as emphysema or cancer. Asking if someone smokes indirectly addresses potential health problems and suggests you didn’t hire the person because you view him as a risk. In addition, smoking can be a form of addiction, and asking about it crosses the boundary between an applicant’s personal and professional lives. It could also suggest that you disqualified him because of what his smoking habit says about his mental and emotional states.
Smokers’ Rights Laws
In 29 states and the District of Columbia, anti-discrimination employment laws prohibit employers from discriminating against workers based on lawful activities they engage in outside of work. Some states, such as Connecticut, Kentucky and Louisiana, specifically mention smoking. This means you can’t fire, penalize or refuse to hire someone who smokes, regardless of your company’s smoking policies. In this case, asking if an applicant smokes is a moot point and only opens the company up to scrutiny regarding its hiring practices.
What You Can Ask
Your hands aren’t tied, however. While you can’t ask an applicant if he smokes, you can describe your company’s smoking policy and ask if he can abide by it. You can also ask if he’s been disciplined at previous jobs for violating company smoking policies. You’re not prying into his personal life, you’re inquiring about his prior job performance and history of disciplinary action.