Being Fired When You (Do Not) Have a Right to Smoke

WHERE THERE'S SMOKE, THERE'S FIRED / Michael Moffa

You are a smoker who wants to defend what you believe is your right to smoke. Your company wants to limit, deny or circumvent your alleged right and, if it has the most Draconian policy of all, is prepared to fire and not hire people like you, even those who smoke only a little.

You Have the Right or You Don’t

For the sake of argument, let’s tautologically assume that either you have some kind of a right to smoke or that you do not. The goal of this discussion is not to argue that you do or do not have such a right. Instead, it is to see whether it can be argued that your company does or should have the right to fire or not hire you when you do not have any right to smoke, limited or unlimited, i.e., has a zero-tolerance policy.

Your Company Should Have the Right to Fire or Not Hire Smokers?

If it can be cogently argued that a company has no right to fire or not hire you even though you have no right to smoke, it stands to reason that the same company will have no right to fire or not hire you when you do have the right to smoke.  So, let’s see whether there is a convincing argument for the conclusion that a company does (not) have the right to fire or not hire someone if it is agreed by all, including smokers, that there is no right to smoke.

Even though, for the sake of a broader argument, it is being assumed here that you have no right to smoke, It may be maintained that prior to any discussion of whether  your company or any company should have the legal right to fire or refuse to hire smokers (or Coors beer drinkers, Democrats, single moms or ex-cons) is consideration of the question of whether any “right to smoke”  (or do/be any of the others listed above) exists.

This means considering the question whether a right to smoke should be recognized as existing as an inalienable basic or derived legal or moral right—buttressed by the courts,  “natural law”, “God-given” or argued for on the basis of some moral, cultural, economic, religious, metaphysical or other principle.

That’s because if there is no cogent legal, philosophical, cultural or other defense of a claimed right to smoke, it may seem reasonable and tempting to conclude that a company would have the right to fire or not hire someone who does something he or she has no right to do.

Can’t Smoke If You Can’t Beat Your Spouse?

For example, since a man has no right to beat his wife, shouldn’t his company have the right to fire him for beating his wife, once it is discovered? Likewise, since an employee has no right to take another employee’s parking space without permission, i.e., to steal it, the company may argue that it has the right to fire him for doing something he has no legal or moral right to do.

Following this line of reasoning, it should be fair to argue that a company can also fire someone who has no right to smoke, but who nonetheless does.

Accordingly, if it can be compellingly argued that there is absolutely no such thing as a “right to smoke”, not even a circumscribed right, e.g., a “right to smoke in one’s private free-standing dwelling” or a “right to suicide by tobacco”—an alleged right upheld or denied by something more than mere and sheer insistence disguised as high-sounding verbiage, then a strong case might be made for maintaining that a company can fire anyone who smokes at all, irrespective of whether that smoking is at or near work, at home or on a lofty mountain peak in Siberia.

For this extreme anti-smoking viewpoint and corporate empowerment to withstand critical scrutiny, all behaviors to which no right can be claimed would also have to be grounds for termination. Find one behavior or condition to which no one has a right, but which nonetheless cannot be moral, legal or other grounds for termination, and the argument supporting corporate firing of smokers collapses or is at least cast into grave doubt, pending some clarification as to why there is such an exception.

Forbidden vs. Undefended

Before undertaking this task, it is important to distinguish two meanings of the phrase “have no right to smoke”. In the first sense, it means no supported, supportable, defended  or defensible right to do so exists; in the second sense, it means it is forbidden.  This is an important distinction. To grasp it, compare beating one’s spouse and wearing mismatched shoes and socks.  “There is no right to beat one’s spouse” is normally interpreted in a strong sense that specifies that it is forbidden or at least that any claim to such a right will be denied and blocked with the force of law, religion, morality, culture, etc.

On the other hand, “There is no right to wear mismatched shoes and socks” is under a reasonable rendering to be understood as  the idea that any claim to such a right is not defended or upheld. It won’t be denied or opposed; it simply will not be upheld.

What makes this distinction important to a company firing or non-hiring of a smoker is that if “have no right to smoke” is interpreted as forbidden or opposed (by force), as is spouse-beating,  it seems perfectly appropriate for the company to fire or not hire someone who has done something forbidden or opposed by official force.

But, if “have no right to smoke” means  the claim to such a right is unsupported, undefended or indefensible—and only that, then the argument that the company should have the right to fire or not hire someone who has no right to smoke (in this sense of an unsupported, rather than forbidden, claim) will be much weaker.

It is in this latter sense of unsupported rights claims that it become possible to present a counter-example to the argument that a company can fire or not hire someone who “has no right to smoke”—namely, in the instance in which “having no right to smoke” is interpreted to mean having no supported, supportable, defended, defensible claim to having such a right.

That is, if it is not right for a company to fire or not hire someone who merely has no supported, defended claim to a right to wear mismatched shoes and socks (given that it is clearly not forbidden), it will, by parity of reasoning, not be right for a company to fire or not hire someone who has no supported, defended claim to a right to smoke (when smoking is also clearly not forbidden and opposed by force).

Preliminaries to Arguing for the Right to Smoke

Assuming that this line of argumentation and its conclusion are clearer than smoke, you are now ready to tackle the more difficult question of whether a company should be able fire or not hire someone when that person does have a right to smoke or a right to do something that the company doesn’t approve of.

If you are a smoker, before tackling that next question, you may want to take a cigarette break, or, more wisely, break your cigarettes, given the momentum of the anti-smoking campaigns of governments, corporations and the non-smokers enveloping you the way your smoke used to.

For even if you have the right to smoke, that right,  now more than ever in the social and political cross hairs, may be smoked at any time.