Don’t Hire Smokers?

Dueling perspective articles in this month’s New England Journal debate whether it is ethical for employers to refuse to hire smokers. Health care employers (including the University of Pennsylvania Health System, which is owned by my employer and the employer of most of the authors) have led the way with these hiring bans.

Harald Schmidt, Kristin Voigt, and Ezekiel Emanuel argue that the burden that such policies place on smokers have the practical effect of increasing the disadvantage of an already vulnerable group, and moreover that other policies could achieve the same outcome with less burden:

” It is callous — and contradictory — for health care institutions devoted to caring for patients regardless of the causes of their illness to refuse to employ smokers. Just as they should treat people regardless of their degree of responsibility for their own ill health, they should not discriminate against qualified job candidates on the basis of health-related behavior.”

David Asch, Ralph Muller, and Kevin Volpp counter that it is not only permissible, but ultimately beneficial to smokers and non-smokers to have the policy in place. They remind us that the policies help to accelerate a decision many smokers would like to make:

“In many surveys, about 70% of smokers say they want to quit, but only 2 to 3% succeed each year. One reason for this huge gap is that smoking cessation has immediate costs in the form of nicotine withdrawal (i.e., the symptoms of withdrawal and the costs of antismoking treatments), but its benefits in terms of improved health are considerably delayed. Thus, although some people may see anti-tobacco hiring policies as adding economic injury to physical injury, we would argue that such policies also make the benefits of smoking cessation more immediate and so help to counterbalance the immediate costs of quitting.”

The pieces are ungated, so go read them yourselves! My immediate reaction is that (1) against Schmidt et al. I disagree that we need to believe that smokers are personally responsible for their behavior to impose the ban, we just need to believe that the ban is likely to get them to change, (2) I am not categorically against tough love paternalism for behaviors that are very harmful, (3) but such policies require a huge hurdle to jump over — we have to show that there is no credible alternative that would achieve the same outcome. I’m not sure we have jumped that hurdle here, and so I am leery of these bans.

More good coverage from the LDI economist.

(Full disclosure, David Asch is one of my mentors, and Harald Schmidt and Kristin Voigt are friends)

About Brendan Saloner

I am a postdoctoral fellow at the University of Pennsylvania in the Robert Wood Johnson Health and Society Scholars Program. I completed a PhD in health policy at Harvard in 2012. My current research focuses on children's health, public programs, racial/ethnic disparities, and mental health. I am also interested in justice and health care.
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7 Responses to Don’t Hire Smokers?

  1. But given that the act in question undoubtedly imposes a penalty on smokers, and almost certainly stigmatizes them further, I do not see your basis for #1 above. That is, given the direct and significant harms (both moral and practical) the ban would likely cause, why is it the case that we do not need to prove some kind of culpability on the actor to justify such relatively severe harms?

    Instead, you seem to endorse a lower standard for judging the propriety of the action, that it would facilitate their quitting. But even if we assume that this is true, it does not follow that such a positive consequence justifies the significant harms imposed, harms that, as Schmidt et al. correctly note (IMO), intensify the clusters of disadvantage to which groups who smoke are disproportionately likely to belong. In addition, even if we should judge the act based on the likelihood of good consequences, your point #3 seems to undermine the likelihood of obtaining a sufficient quantum of evidence regarding good consequences to ever satisfy even the lower standard you’ve adduced in #1. If we have other whole population measures that we have reason to believe might achieve a similar reduction in incidence (or increase in cessation or whatever outcome we’ve agreed on), then why ever would be able to justify a ban that might achieve the same quantum of good while imposing significant harms along the way (that other measures may be less likely to impose).

    Fascinating stuff!

  2. I’m not sure I entirely follow your argument Daniel, but let me try an analogy:
    Let’s say that there is a particularly nasty treatment for an infectious disease that dramatically reduces the long-term consequences of having the infection and reduces the potential for contagion and other negative social effects (say the treatment causes temporary and reversible vision and hearing loss).

    Many people with the disease would not choose to take the treatment on their own, so we may take various coercive measures to make them get treated (like not allowing them in public places until they get treated). Our sense that this is a fair burden to make them get treated would be even stronger if we felt that they had been responsible for their infections (they were warned to eat fish from the toxic lake), but even if they acquired the infection through no fault of their own, we might still think that the unpleasant treatment was justified — either for their sake, or for the sake of others.

    I am not saying that this is exactly the analogy with smoking cessation, but I am just using it to illustrate the general point that personal responsibility is not a decisive consideration here.

  3. Hi Brendan,

    My apologies for being unclear. I was interested primarily in your point #1 above, in which you state that you think all that is necessary to justify the act in question is the belief that such act is likely to induce behavioral change. So even while the act may impose a penalty, if I am reading you correctly you are suggesting that no culpability of any kind need be posited to justify the imposition.

    Is that a correct summation?

    If I have this right, my response was the following:

    (1) Given the harms that the penalty would impose, it is unclear why we are justified in causing such in the absence of any culpability on the part of the moral agent;

    (2) Even if the positive consequence (the desired behavioral change) actually flows from the act, we need an argument to explain why this consequence outweighs the significant harms that also attend the act (e.g., stigma, intensified disadvantage of already-disadvantaged). In other words, we cannot simply point to the positive consequences and argue that such carries the day; you’d have to explain why such consequences outweigh the harms, which, in the absence of any assessment of culpability, seems quite difficult; and

    (3) If we have other public health interventions available to us which evidence suggests might result in positive consequences (reduction in incidence, compression of smoking-related inequities, etc.) with a lesser chance of intensifying stigma or pre-existing stigma, the justification for the imposition of the penalty seems weak. Why not simply choose some of the other whole-population measures?

    Anyway, I understand this was a blog post, so you are obviously not required to lay out in detail all of your reasons in support of your #1 above. But I respectfully think your task in justifying #1 is formidable (would love to see it, of course!).

    Similarly, I did not find Asch et al.’s commentary compelling; they seemed to me to acknowledge many of the harms Schmidt et al. voiced (stigma, disadvantage, inequities, etc.) but went on to discuss the positive consequences of any act that we might justifiably believe would increase cessation. But for the reasons laid out above, I do not find such response convincing, at least in part b/c I think it does not do the work required to explain why the goods to be obtained outweigh the harms.

    As for your analogy, that is helpful, and in theory I do not disagree that we might impose even coercive public health interventions in the absence of culpability. But it does not follow that this particular act is justified in such a circumstance, I think.

    Does this help clarify my position?

  4. Okay, this is good. I think some clearer phrasing on my part could have averted some confusion. I’m just sorry I couldn’t have been making a more philosophically interesting point 🙂

    No, my position is not that a behavior being harmful to self or others, by itself, is a justification for restricting, regulating, or otherwise coercing someone to stop the behavior. I agree with you that the weight of benefits versus harms is going to make a difference to whether we can regulate/restrict, and even a favorable cost-benefit cost ratio is unlikely to be sufficient in most cases. I take the competing commentaries to offer different interpretations of where the weight of the costs and benefits lie, but there may also be a disagreement between the two authors about how much issues like degree of harm or degree of responsibility is likely to make a difference in the balance of considerations.

    On responsibility, my point was a narrow and relatively simple one: showing that some behavior is due to factors beyond a person’s control (they are not responsible for it) is not sufficient to prevent us from taking restrictive measures to stop them from doing something that they would like to do (like smoking), even if our restriction harms them in some way. Of course, the burden of proof still lies on those that would impose the restriction to show that the benefits of the restriction outweigh the harms, that the method is the least restrictive, etc. Responsibility matters, but the absence of responsibility is not a trump card that categorically prevents others from imposing a harm for the sake of the greater good (or the good of that person if they could see the harms more clearly).

    • Hi Brendan,

      I agree with your narrow point, but disagree that it is philosophically uninteresting. 🙂

      And actually, I have to admit to a bit of devil’s advocacy here, because I am generally not a big fan of the general moral significance assigned to notions of individual responsibility for health (but some notions of collective responsibility I find much more compelling). So if pressed I would be unlikely to commit to a serious defense of a requirement of personal responsibility to justify a penalizing public health intervention. In fact, I am generally suspicious of the latter regardless of the justification (I tend to gravitate towards virtue ethics rather than consequentialism).

  5. Having seen the crowds of smokers lighting up in front of the large ‘no smoking’ signs next to the doors of our local hospitals I can see the motivation for the hiring ban. I would think health care providers would often view it as part of their responsibility to help their patients quit smoking, regardless of whatever other ailment the patients were being treated for. Hiring smokers would probably contribute to an environment in which smoking was more visible, perhaps increasing the temptation for smoking patients who are trying to quit, i.e. following the contagion analogy given above. Besides a hiring ban though, another approach I’ve heard talked about recently is banning smoking on hospital grounds. If the smoking behaviours of employees can be successfully moved away from the health care environment by measures such as this then I think it would be harder to justify discriminating against hiring smokers. However, it is probably an open question yet as to whether such measures can successfully do this.

  6. Some interesting points but I am definitely seeing a lot of George Orwell’s 1984 these days. We all know that smoking is bad for your health and today it is an extremely antisocial pastime, yet it is a legal pastime and one that was until not long ago encouraged by all and sundry. Should we also look at the employees who drink as well? In the US you have a constitution that gives you certain rights in the UK if our government doesn’t like what we do they just change the law. Freedom of choice should be an inalienable right as long as it fits within society’s rules and customs yet it seems there is always someone who thinks that they know what is best for others.

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