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Protecting your rights: Should smokers be a protected class?

Should smokers be a protected class? (WKRC)

COVINGTON, Ky. (WKRC) - While most people are probably familiar with laws against discrimination, they might be surprised to learn that some people get a unique protection at work that others do not.

Some say it's an unfair advantage.

It all has to do with a law that impacts many businesses in several states.

If a person wants to interview for a job, or wants to be hired by one of those businesses, there is one question that can't be asked.

The reason some say it's an unfair advantage is that some say it provides protection that many other groups don't get.

So, should your employer be able to ask if you're a smoker?

Apparently no, because it's legal.

But it's a question a lot of people answer in a lot of different ways.

It's also a question that Brent Cooper, a computer company CEO in Covington isn’t allowed to ask his employees and potential employees.

If someone comes in for a job interview there are a lot of things employers are allowed to find out about them, but they cannot ask if they are a smoker.

“It's a bizarre rule in the state of Kentucky that smokers are a protected class, it’s right up there with race and religion, we are not allowed to consider whether or not someone is a smoker before we hire them,” said Brent Cooper.

Cooper’s employees confirmed that he's not against hiring smokers, he's just against giving smokers protection that others don't get.

It's all part of a little known law in several states including Kentucky and Indiana.

“Which prohibits any type of discrimination against smokers,” said Bob Hoffer, an employment attorney.

Bob Hoffer is an employment attorney who says this law has a rich history in many states such as Kentucky, where smoking was big business.

“We can't discriminate against those people and those organizations that feed the commonwealth with a lot of dollars and taxes,” said Hoffer.

But if an employer can’t ask about smoking habits, what other health habits might be considered when hiring?

Are we on a slippery slope if you take away this protection? Could they start asking people what they eat for lunch, and then discriminate against them for obesity?

“I think that's already the case, really smokers are the only protected class outside the normal ones we think of: gender, race, religion, national origin, disability… so when you throw in a special classification for smokers, you are really giving them an entitlement that really none of the rest of us who are non-smokers have,” said Hoffer.

But what about organizations such as the Northern Kentucky Health Department that have a smoke-free workplace? You can't even ask if a person hired to teach smoking cessation programs is a smoker themselves.

And that’s a big problem according to public health experts because, as Stephanie Vogel, the Director of Population Health at the Northern Kentucky Health Department says: “Kentucky leads the nation in adult smoking rates.”

The health department stops short of saying the protected class law should be repealed.

“Right now I think that's a grey area for us, to see if it actually reduces our smoking rates,” said Vogel.

Stephanie Vogel said that it's clear that policy changes do help reduce smoking, which is something needed in Kentucky to improve health because “about one in four people are smoking,” according to Vogel.

Brent Cooper says the numbers aren't really his main concern. He simply thinks making smokers a protected class sends the wrong message.

“It's what do you value in our state… do we really value smokers at a level of race and religion? Really?” said Cooper.

Ohio does not have this law but they do have a statewide smoking ban and the question can be asked.

Local 12 did invite one of the largest tobacco companies to share thoughts on this but they chose not to comment.


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