The Thorns of a Dilemma

Issues are like roses. Some are thornier than others. Consider the following news item, as reported by the Boston Globe:

Off-the-job smoker sues over firing

A Buzzards Bay man has sued The Scotts Co. , the lawn care giant, for firing him after a drug test showed nicotine in his urine, indicating that he had violated a company policy forbidding employees to smoke on or off the job.

The suit, filed yesterday in Suffolk Superior Court, is highly unusual because it involves an employee who was terminated for engaging in legal activities away from the workplace. The lawyer who filed the complaint said he believes it is the first of its kind in the state.

Scotts announced last year that it would no longer hire tobacco users, a policy company officials said was intended to improve employee wellness and drive down the company’s healthcare costs. But civil libertarians say it violates personal privacy rights and could be used to mask age discrimination or other illegal behavior.

“Employers should be greatly concerned about how employees perform their jobs and what happens in the workplace, but how employees want to lead their private lives is their own business,” said Boston lawyer Harvey A. Schwartz, who represents Scott Rodrigues in his civil rights and privacy violation lawsuit against Scotts.

“Next they’re going to say, ‘You don’t get enough exercise’ or ‘Both your parents died of a heart attack at age 45 so we don’t want to hire you because you’re more likely to need medical care,’ ” Schwartz said. “I don’t think anybody ought to be smoking cigarettes, but as long as it’s legal, it’s none of the employer’s business as long as it doesn’t impact the workplace.”

Jim King, a Scotts spokesman, said company lawyers had not seen the lawsuit and would not comment on it.

But he said the tobacco policy is intended to reduce medical costs for the self-insured company, which he described as deeply committed to promoting good health among its employees; he noted that Scotts built a $5 million wellness center at its Marysville, Ohio, headquarters last year and reimburses some workers for fitness club memberships. And while Scotts screens all new hires for drugs, including nicotine, he said it does not conduct random drug testing, as some other employers do.

“We’re not interested in dictating our employees’ behavior in their free time because it doesn’t affect us,” King said, “but the issue of smoking we deem different because there is no dispute whatsoever that there’s a direct correlation between increased health risk and healthcare costs. So what we’re really saying is we’re not willing to underwrite the risks associated with smoking.” [full text]

On the one hand, it seems unreasonable and even unethical to dismiss an employee from their job on the basis of activities that occur outside the workplace and have little if any direct bearing on the job. For an employer to have such influence and control is not only intrusive but also dangerous, as it opens the door to all manner of potential abuses and infringements. Furthermore, it demeans employees and, in effect, accords them the status of chattel.

On the other hand, when employers are expected to bear the brunt of the cost of health insurance coverage “an expense that has increased dramatically over the years” it would seem fiscally irresponsible and even unethical to simply ignore the activities of one’s employees that harm their health and harm the bottom line. Presumably, if an employee didn’t care to wear safety goggles or gloves or some other sort of protection on the job, his employer would not stand by and permit such. Is the issue of cigarette smoking so much different?

Where does one draw the line between an individual’s right to privacy and self-determination and an employer’s right to operate their business and limit expenses? What is fair and just? It remains to be seen.


11 thoughts on “The Thorns of a Dilemma

  1. i see everyday the destructive effects of cigarettes. however, i am worried about the consequences of letting an employer fire anyone for something they do that is not unlawful and is not directly affecting their ability to do the job. we do need universal health care, and programs to encourage exercise, nutrition and smoking cessation. i don’t like any policy that lets an employer control what an employee does when they’re not at work.

  2. Revlee, didn’t you read the post? The employer is trying to dictate how its employees lead their lives. Right now, medical decisions are made for us by insurance companies.

    In a democracy, we can change our gov’t’s policies. We cannot change the way private employers operate–unless the gov’t passes laws to make employers change.

    Yes, cigarettes are bad. So is trans-fat. So is driving without a seat belt. So is having genetically inherited propensity to diseases like diabetes or high cholesterol. If employers are allowed to pick and chose to whom they give health coverage to save money, the most likely outcome is that no one will have coverage.

    Every other industrialized nation in the world has universal coverage at a fraction of the cost that Americans pay. And people in these other countries live longer. And even Cuba–Cuba!–has a lower level of infant mortality than the US.

    Pay more, get less. Why do we tolerate this?

  3. sometimes i wish i smoked. we are letting our society be socially engineered by big business and it’s making people sick. go to downtown providence and look at the main library. it was built before WWI. After that, the defense budget took it all. Our generation’s big project is the Providence Place Mall, where you pay for everything. Do you know that they originally designed it so the rabble who live in the city wouldn’t be able to enter? it was highway access only.
    the point is that freedom means knowing where our tax money is going and making sure that a fair share goes to those who pay it. also, wise social engineering in the form of parks, walking and bike paths, clean air and abatement of all the 19th and 20th century junk we have lying around in our great city.
    sick people are expensive, healthy people work and pay taxes. that’s an equation in case you think it’s sentimental to care about the huge and unnecessary suffering americans are bearing because we are handing over our democracy to robber barons.

  4. klaus wrote: “In a democracy, we can change our gov’t’s policies. We cannot change the way private employers operate–unless the gov’t passes laws to make employers change.”

    Stunning, even for you klaus. We are a capitalist nation as well, which means we have the power to change the operations of private employers with our wallets. We simply don’t purchase products or services from companies who do things we don’t like. And if the companies are public, we don’t invest in them either. There’s a reason companies spend a fortune on public relations. If public sentiment becomes more pronounced against the company’s practices, I suspect you’ll see changes at Scott. Because the truth is, companies must answer to the consumers who keep them profitable.

    What I think you probably meant to say was that you cannot force companies to do what YOU want them to do without government intervention.

    ninjanurse, wouldn’t you agree that social spending/entitlements instituted by the federal government have also contributed to the lack of federal funds available for the “social engineering” you mention above?

  5. Gosh, Mike, can I live in your world? It seems like a wonderful place, where facts don’t matter, reality can be ignored, and you’re always RightRi. It sounds dreamy.

    Your absolute faith in Free Markets and The Invisible Hand is touching. And it’s also akin to believing in The Easter Bunny. Except there’s more evidence for the Easter Bunny. The whole Free Market Hypothesis is simply ONE of many theories. It has been the consensus opinion for the last 20 years, but it’s losing it’s appeal among a lot of economists. Check out “Adam’s Fallacy” by Duncan Foley.

    But your faith,while touching, is also irrelevant in this case. Please try to pay attention, so you can address what I actually say, not want you imagine I said.

    I was talking about employers. Your little scenario is talking about merchants. So your whole point is completely irrelevant. Because, if you recall, we were talking about health care. Most people fortunate enough to have health care in the US get it through their employer. If you really think an employee has any abitlity to influence a corporation’s policies, then you really are living in la-la land. As for getting another job…right. Sure. It’s a snap.

    And, btw: a few years back, Christians were boycotting Disney because of their domestic partnership benefits. Did Disney change? Nope. Kind of bites your Invisible Hand there, doesn’t it?

    As for not investing in ‘offending’ companies: According to that leftist rag Investors Business Daily, 3/4 of the market is set by large, institutional investors who buy millions of shares at a time. So a group of Concerned Citizens really can’t offset that kind of clout.

    Also btw: The Invisible Hand is an 18th Century theory. Next time you go to your doctor, ask her to treat you using 18th Century medical techniques.

    What you did was to pull one rather peripheral statement from my argument, make a lame attempt to refute it, and then pretend you had squashed my point.

    But I’ll bite. Let’s talk about gov’t forcing businesses to do things. Which of these are you in favor of:

    Child Labor
    No overtime pay
    70 hour workweeks
    Dumping untreated toxic waste into the bay
    Patent medicines that are, at best useless, at worst harmful, if not fatal
    Putting cocaine in Coca-Cola
    Employer-hired enforcers beating and shooting people trying to organize a union

    Because each of those things happened. In the real world. They did not stop until gov’t FORCED businesses to stop. How many of these things are you advocating?

    Once again, I suspect you will avoid the question. Say, how’s that Iraq war going? Have you ever come up with a way to pay for it that doesn’t require pauperizing my children? I asked you about that months ago and you never responded. Perhaps you can answer that when you get back to me on the list above.

  6. klaus, if you reread my comments, you’ll see I never said that no government laws were needed. You made the assumption that I feel this way. All I said was it was ridiculous to think that consumers have no power. We have a great deal, and so much of it goes untapped.

    A few examples. When a mother was frustrated by a mature program on during the 8 o’clock time slot, she wrote the network and its advertisers to complain. The network gave in to pressure and moved the show to 9:00. When citizens became vocal in their objections to a movie that portrayed President Reagan in a false light, consumers vented their anger and the network moved the show to its pay channel. A gay and lesbian group led a boycott of advertisers to the Dr. Laura television show, and the program was soon cancelled.

    Consumer choice/demand is what pushes corporations to do more. Auto buyers wanted cars with driver’s side airbags. Cars not equipped weren’t sold. So the companies made more cars with driver’s side airbags. The government stepped in and ordered passenger side airbags before the technology was fully developed. The result was small adults and children killed, and lawsuits against the automakers and manufacturers.

    Your Disney example does not in anyway disprove my assertions. Simply, not enough people had a problem with the company’s partner benefits. In fact, it kind of refutes yours. It didn’t take a government law to bring domestic partner benefits to Disney employees. Hmm. Now if you believe the government should be making these decisions, wouldn’t you agree that many states would probably make illegal such benefits? Can you imagine the folks in Utah or South Dakota or Georgia rallying around government officials advocating benefits for employees’ gay partners?

    Unions worked to end long work weeks, to provide overtime pay. Aren’t they still doing so today? While government needs to protect its citizens, it should not be viewed as the solution to whatever you or I think is right.

    A great story is that of Canadian Craig Kielburger, who at the age of 12 organized his friends to fight child labor and bring awareness to companies and consumers about child labor abuses in other nations. His organization now claims more than a million members around the world and has had a dramatic impact in his country, in our country, and around the world. (

    you know klaus, it saddens me that you have such hostility toward your own country. Most are thankful that their children were born here in the US (as opposed to Cuba), where they will enjoy unparallelled freedom, the world’s best medical care, unlimited career opportunities, and the best in education. We also have a powerful military that will protect our children from those threatened by such liberties, and will do so no matter what the cost. I’m so glad I’m an American.

    Thankfully you still have a sense of humor, as evidenced by the cocaine in Coca-Cola comment!

  7. Wow. When I write a response to you, Mike, I am always concerned that I’ve gone overboard and gotten too personal. However, this response of yours is much more insulting than anything I’ve ever even thought of saying.

    To start, my point–before you went off on a tangent–was about Health Care. To which you respond:

    …Most are thankful that their children were born here in the US (as opposed to Cuba)…

    We were talking about infant MORTALITY. That is, babies that DIE. As a parent, I can’t think of anything more horrible. Perhaps “most” are grateful to be here and not Cuba, but what about the parents of those additional babies that die because they live here? Do you think they’re grateful?

    And these are preventable deaths. They could be avoided by better access to prenatal health care. But businesses are cutting back, the numbers (and percent) of uninsured grows. That means MORE babies will die that don’t have to. And you’re OK with that?

    Because business is not going to solve this problem. Given the rising costs of health care–which are, in large part, due to the administrative costs and rising profits of insurance companies–they will continue to cut back. So infant mortality will continue rise until gov’t intercedes and mandates universal coverage.

    You see, we cannot boycott all companies until they provide coverage– which seems to be your “proposed” solution. As evidence of the way business has shown contempt for most Americans. I provided real-world, factual examples that demonstrated callous attitudes of business to human need. None of these practices stopped until gov’t mandated change. Courageous individuals helped, but only gov’t had the power to force change.

    That includes the cocaine. Ever see the shellfish bans in the ProJo? The upper bay is permanently closed because of all the heavy metals (like mercury and lead) dumped there over the years by the jewelry industry. Do you think that stopped voluntarily?

    And then you have the gall to accuse me of being hostile to my country. That is just disgusting, but typical of a certain strain in American conservatives. I love my country. I love it so much that I’m willing to stand up to the plutocrats, and oligarchs, and crony capitalists who want to steal what is best about America.

    The sense of entitlement of GW Bush is staggering. He and his henchmen have run this country to benefit the very, very wealthy, while the rest of us are left to fight over crumbs. These people are willing to let babies die rather than cut into CEO bonuses. The ultra-wealthy get more, the rest get less. That’s obscene. It’s also a gross perversion of Christian values.

    So, if that’s what you consider America, then, yes, I am hostile.

  8. klaus, I mean this in all sincerity. I read your comments, which are relentlessly critical of our country, and tire of the negativism. Yet when I question your hostility, you act insulted and offended by the suggestion. I really don’t understand.

    You love our country, but hate the leader we have elected. You love our country, but hate the capitalism that is the basis for our economic success. You love our country, but hate the actions it takes to protect and defend itself.

    I disagree with a lot of the actions taken by people that make up our government. Yet I genuinely believe their actions are well-intentioned. I was disgusted by President Clinton’s behavior when in office, but I didn’t question is motives in Somalia or in Yugoslavia. I didn’t call his cabinet and advisors henchmen, and I didn’t suggest he was willing to let babies die.

    Of course I want to do what’s necessary to ensure babies are born healthy, and support ways to improve prenatal care. (I can’t help but add this includes all the unborn.) But mandating government controlled health care will not necessarily result in the ends you and I both seek. We can disagree on the methods without accusing one another of wanting babies to die, can’t we? And I’m sure you understand that the problems with our healthcare system are complex, and are not simply the result of insurance company profits.

    That sense of entitlement President Bush demonstrates may have something to do with the fact that he has been elected twice to the presidency. Makes him entitled to act as president. And he doesn’t set CEOs’ salaries and bonuses. I understand the frustration with those who have become incredibly wealthy. It’s always the CEOs we complain about, but entertainers, athletes, and innovators have become very rich as well. Do you believe A-Rod’s mega-salary results in babies dying? He makes a fortune because he has risen to the top of the game, and his talent makes a lot of money for a lot of people. Shouldn’t CEOs who rise to the top be rewarded for doing so? I agree that in many cases, the rewards have become obscene. But it should be up to the shareholders to make changes if they believe it necessary.

    I’ve enjoyed our antagonistic banter. I share my opinions and question yours in ways that are not meant to be personal attacks. Your last post suggests, however, that you perceive my motives otherwise. So I’ll give it a rest. Enjoy the holidays.

  9. First, let me state emphatically that I am not hurt or offended by your comments. Well, actually, I am offended because you rely on personal attacks instead of looking at the evidence I present. Instead of considering whether I have a point about the state of the Union, you say I hate my country.

    That’s offensive because it’s really bad logic.

    Before making up my mind, I weigh facts and judge evidence. You, apparently, believe what you want without ever considering the enormous body of evidence that indicates you are wrong.

    I provide examples of real, factual situations where business has harmed the common good. You tell nice stories about courageous 12 year olds.

    You say you care about unborn babies and yet you excuse CEOs for their tremendous salaries. (Sidebar: athletes and entertainers are a different issue completely, as they are not, generally speaking, part of publically traded companies. Introducing them is a diversion and a straw man). Let’s put it this way. Company A makes $X in profits. How does it spend those profits? It can provide health care for low-income workers; or, it can give the profits to its executives as compensation.

    So: we are, in a given year, talking about a zero-sum game. Every dollar used to pay an executive is $1 less that can be used to fund health care. If you chose to use it for compensation, you are thereby contributing to higher infant mortality.

    Granted, that simplifies it, but the principle holds.

    Frankly, I’m always a little shocked (Shocked!) by how little proponents of business seem to know about how business actually works.

    Let’s take Wal-Mart (the bete noir of liberals). In 2006, WM paid $26 Million dollars to its top five executives. Between 2005 & 06, the stock price FELL by 8%, so it’s not like they were rewarded for superior performance. And it’s not like they shared much with shareholders, since they paid a paltry 1.45% dividend.

    These guys got an average of $5M each. If they’d been paid say, $2M–which is hardly chump change–that would have left $16M to be used for, say, health insurance. A good policy would cost around $10,000/year, or enough to pay for 1,600 employees. No doubt a portion of those 1,600 had babies. Did they get the proper pre-natal care? Without health insurance, probably not.

    So, Wal-Mart made a conscious decision to reward a few executives for terrible performance, instead of benefiting a much larger number of employees and their children. And taxpayers, too, since many Wal-Mart employees make so little that they are eligible for Medicaid. So, you and I paid for a chunk of that executive compensation in the form of taxes that support Medicaid. That goes back to my original point about not being able to set corporate policy.

    So go organize your boycott against Wal-Mart

    Entertainers and athletes, essentially, work for themselves. Most sports teams are not publically traded, so they’re pretty much irrelevant to the topic at hand. Costs are passed on to ticket holders and people who buy jerseys or hot dogs at the games.

    Again, pro-business, but seemingly little understanding about how it really works in the real world.

    Clinton’s bad judgement was personal. It only effected the country because the Reps tried to use it to impeach him. BTW–it probably prevented him from a more vigorous response to al-Qaida attacks on the African embassies. When Clinton retaliated, all the Reps were shouting “Wag the Dog!” Note how quickly Bush stopped trying to pin blame for 9/11 on Clinton.

    OTOH, Bush’s bad judgment has had a debilitating effect on the entire country. And I truly believe that virtually all of Bush’s actions have been taken to benefit a very, very few super-rich individuals. I believe this because that is what the pattern of evidence tells me. Because I truly believe he acted in bad faith, I am angry about what he’s done. That is my duty as a citizen of a democracy.

    But you don’t look at evidence. You stated, flat-out, that you would never believe me when I said that Saddam Hussein had nothing to do with 9/11. Do you still cling to that belief, despite overwhelming evidence to the contrary? Do you understand the concept of the argument from silence?

    “…But mandating government controlled health care will not necessarily result in the ends you and I both seek…”

    That is flat-out false. The evidence is out there. Look at the results obtained by other countries that have universal health care. I come back to Cuba–which, incidentally, has decent medical care. They are always sending doctors to other Latin American countries as a form of foreign aid. Cuba has a lower incidence of infant mortality than the US, despite spending much, much less per capita. The US spends more–way more–than any other country per person, and yet we rank in the low 40s for both life expectancy and infant mortality.

    What more evidence do you need? Universal health care works. Some hospitals are giving out free care to indigents. Why? To prevent the indigent from really getting sick and ending up in the ER, which costs a whole lot more than effective primary care.

    Again, from the principle of sound business practice, universal care has a huge cost-benefit advantage.

    So, whatever.

    Happy Holidays to you, too!

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