Is it be ‘illegal’ to ask someone in a job interview whether he or she smokes cigarettes?
While the answer remains unclear, there is a compelling argument that the answer may be yes, in some cases.
The Law
Employment law in Ontario is governed by a plethora of laws; including the Human Rights Code. With respect to the questions posed at the beginning of this post, four sections of that law are relevant: sections 5, 10, 17 and 23.
Section 5 of the Ontario Human Rights Code guarantees the right to equal treatment in employment:
Every person has a right to equal treatment with respect to employment without discrimination because of… disability.
Section 10 of the Code defines “disability” broadly, providing:
“disability” means,(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997
Finally, section 23 of the Code extends the rights conferred by section 5 to the pre-employment period:
23. (1) The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.
23. (2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.
23. (3) Nothing in subsection (2) precludes the asking of questions at a personal employment interview concerning a prohibited ground of discrimination where discrimination on such ground is permitted under this Act.
23. (4) The right under section 5 to equal treatment with respect to employment is infringed where an employment agency discriminates against a person because of a prohibited ground of discrimination in receiving, classifying, disposing of or otherwise acting upon applications for its services or in referring an applicant or applicants to an employer or agent of an employer.
The recently decided case of Bouraoui v. Ottawa Valley Cleaning and Restoration, 2014 HRTO 1303 (CanLII) is a prime example of a case in which the Tribunal will award damages to applicants for pre-employment behaviour.
Is an Addiction to Smoking a “Disability”?
According to the Ontario Human Rights Commission, “the case law is divided on whether addiction to nicotine is a disability.”
In providing commentary on the duty to accommodate cigarette smoking with respect to housing and accommodation, the Ontario Human Rights Commission has said the following:
Smoking can be a major source of tension when balancing the rights of tenants.
Social policy already helps promote the well-being of tenants in many ways including current fire, health and building code standards and inspections. Public health laws such as the Smoke-Free Ontario Act, as well as public awareness initiatives on curbing the harmful affects of cigarette smoke have advanced considerably in the last decade or so in other areas, particularly in the workplace, restaurants, bars and hotel services. Improved standards for elements that affect indoor air quality for occupants, especially people with environmental sensitivities, have been set out in the proposed Accessible Built Environment Standard under the Accessibility for Ontarians with Disabilities Act. The proposed Standard identifies a number of building contaminants including gases from materials used in construction and finishes, poor ventilation, cleaning chemicals, scented personal care products, and tobacco smoke. Advocacy organizations are also seeking further progressive change on such issues.
It is clear that cigarette smoke can have a detrimental effect on the health and well-being of others, particularly people with respiratory and chemical sensitivity related disabilities, pregnant women and children. Landlords may be asked to provide accommodation to tenants whose disabilities are worsened by exposure to second-hand smoke.
At the same time, the medical community recognizes that smoking is an addiction detrimental to one’s health. Different forms of addictions, such as alcohol and drug dependences, have been found to be a disability within the meaning of the Code. At this time, the case law is divided on whether addiction to nicotine is a disability.
Smoking has also been shown to be related to other disabling conditions such as emphysema and cancer. Research shows that people with mental illness are about twice as likely to smoke as other people. Similarly, the OHRC has heard that people with physical disabilities, such as multiple sclerosis or chronic back pain, may smoke cigarettes or may be prescribed medicinal marijuana to control symptoms.
A housing provider has a duty to explore accommodation requests from tenants with any form of disability. Tenants may also be asked to cooperate and help facilitate the provision of accommodation for themselves, and where appropriate, for their fellow tenants as well.
However, given the inherent risks associated with smoking, a housing provider may have little or no obligation to accommodate a tenant’s need to smoke when to do so would amount to undue hardship, for example, by negatively affecting the health and safety of other tenants. For more information, see the “Undue Hardship Standard” section of this Policy.
In the footnotes to the Commission’s comment that, “the case law is divided on whether addiction to nicotine is a disability,” the OHRC adds the following:
Heavily addicted smokers have been found to have a disability by an arbitrator in the labour relations context: see Cominco Ltd. v. United Steelworkers of America, Local 9705, [2000] B.C.C.A.A.A. No. 62, where a company policy, that affected workers addicted to nicotine by subjecting them to symptoms of withdrawal, was found to constitute discrimination based on disability. However, addiction to nicotine was found not to be a disability within the meaning of the Charter of Rights and Freedoms in a case challenging a smoking ban at a detention centre: see McNeill v. Ontario Ministry of the Solicitor General and Correctional Services, [1998] O.J. No. 2288 (Ont. Ct. Gen. Div.). More recently, in Club Pro Adult Entertainment Inc. v. Ontario, [2006] O.J. No. 5027 (S.C.J), the court acknowledged the possibility that it might reach the conclusion that smoking is a disability within the meaning of the Charter if the court had before it the type of evidence that was before the arbitrator in Cominco. The Court of Appeal did not comment on this observation; see Club Pro Adult Entertainment Inc. v. Ontario, [2008] O.J. No. 777 (C.A.). In a recent interim decision, the British Columbia Human Rights Tribunal agreed to hear a case alleging discrimination against a smoker based on disability: Stevenson v. City of Kelowna, B.C., (2009), 2009 B.C.H.R.T. 50.
In Stevenson v. City of Kelowna, B.C., 2009 BCHRT 50 (CanLII) the applicant filed an application to the British Columbia Human Rights Tribunal alleging that the reason she was not hired was because she disclosed during her interview that she had an addiction to cigarettes.
In refusing to dismiss that application on a summary basis, Tribunal Member Enid Marion commented that:
[21] Ms. Stevenson has identified an addiction to smoking and has provided information connecting her smoking addiction with her unsuccessful application for a position at the City. These facts, if proven, could constitute a contravention of the Code.
In HH v RG, 2013 CanLII 90297 (ON HPARB), a case from the Ontario Health Professionals Appeal and Review Board, the Board confirmed that cigarette addiction could be a disability under the Ontario Human Rights Code, but went on to hold that the same could not be used to dictate patient care:
[46] An addiction may constitute a disability under the Human Rights Code in some circumstances. However, patients’ individual circumstances, including their disabilities, can also be relevant considerations for physicians in establishing a treatment plans. Nothing in the Human Rights Code requires physicians to ignore relevant clinical considerations or to provide treatment that is not in keeping with the standards of the profession.
Accordingly, that addiction to cigarettes may be a recognized “disability” under the Ontario Human Rights Code appears to be established.
Reasonable Accommodation
Recall the provisions of subsection (3) of section 23 of the Code:
23. (3) Nothing in subsection (2) precludes the asking of questions at a personal employment interview concerning a prohibited ground of discrimination where discrimination on such ground is permitted under this Act.
Some discrimination, even on prohibited grounds, is permitted. For example, and arguably relevant to this very discussion, subsection 20(4) of the Code specifically provides that:
The right under section 1 to equal treatment with respect to goods without discrimination because of age is not infringed by the provisions of the Smoke-Free Ontario Act and the regulations under it relating to selling or supplying tobacco to persons who are, or who appear to be, under the age of 19 years or 25 years, as the case may be.
What is more, section 17 of the Code provides as follows:
17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
17. (2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
Whether accommodating an individual would constitute “undue hardship” is complex analysis, one component of which is whether the discriminating standard, in this case presumably that the potential employee not be a smoker, is a bona fides operational requirement.
The prohibitions against smoking or allowing smoking in “enclosed workplace”, as prescribed by the Smoke-Free Ontario Act , SO 1994, c 10 does raise the question with respect to some industries. For example, one industry originally concerned about the prohibition was that of long-haul truck drivers.
In other industries, the concern will be less acute. Office workers, able to go outside for a cigarette, could easily be accommodated simply by allowing the employee to be outside during breaks from work.
However, even in those instances there can be conflict. What of those who do not smoke, who do not wish to work beside someone who does? How does the law balance those conflicting rights? Likely in the same way as it does with respect to housing, I would suspect.
Commentary
There are really two issues that must be considered when asking the provocative question about whether potentially precluding an employee on the basis of an addiction to cigarettes would be a violation of that individual’s rights under the Ontario Human Rights Code: (1) is the practice illegal; and (2) if not always, then when?
First, might asking interviewees whether they smoke be discriminatory is some circumstances? My answer is yes.
Second, will asking interviewees whether they smoke be prohibited in all circumstances? My answer is no.
Third, when will the practice be prohibited? My answer: it depends. On what does it depend? Whether the employer can reasonably accommodate the disability without undue hardship.
Finally, what would constitute undue hardship with respect to this issue? My answer: it is going to depend on a case-by-case basis. It will be easier for some employers in some industries to accommodate smokers than others. But the full accommodation analysis will have to be undertaken by employers in order to avoid a potential finding of liability.
This issue touches a nerve with people. Never in the lead-up to a post has there been more commentary on an issue. I would strongly encourage the continuation of those discussions in the comments below.
Takeaways for Employees with Labour Pains
The takeaway for employees who do smoke from this post is that it may be a prohibited practice for an employer to refuse to hire you simply on the basis that you are a smoker. If you are a smoker and believe that you have been discriminated against in employment, then you should probably speak with a lawyer. The professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.
The takeaway for employees who do not smoke is that the rights of smokers rarely trump those of non-smokers. If you are an employee who has an aversion to cigarette smoke, then your employer may have a duty to accommodate you as well. Recent case law appears to demonstrate that in the balancing of interests, the interests of the non-smoking community appear to be winning. If you are having difficulty with your employer with respect to an accommodation issue, you should speak with an experienced employment lawyer. The professional, experienced, cost-effective, and non-smoking employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.
Takeaways for Employers with Labour Pains
The takeaway for employers is that you may have to accommodate an employee with an addiction to cigarettes. Employers have been forced to accommodate those addicted to both illegal drugs and alcohol in some cases, so there is no reason to suspect that this issue would be any different.
However, employers, much like landlords, will be required to balance the interests of those who do smoke with those who cannot be around smoke. In those cases, someone will have to “lose.” What it is important for employers to remember is that they cannot simply pick a winner and a loser. Human rights law requires employers to pause and consider all the ways by which both parties could potentially be accommodated. The law further requires employers to implement such accommodations if doing so would not cause the employer “undue hardship.”
If you are an employer and find yourself in the difficult position of being asked to accommodate two competing interests, it is time to speak with a lawyer. The professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.
Contact Us
To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.
--As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.
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