‘Smokers need not apply’ – legitimate discrimination?

by HCA15 May 2012

A Melbourne publishing firm has been the latest workplace to fall into the increasing practice of including a disclaimer in job ads that ‘smokers need not apply’ and in doing so has revved up the ongoing debate. While it’s not unlawful, the practice has been labelled discriminatory and could mean missing out on excellent candidates.

Employers have for some time confined smokers to designated areas, moved smoking areas outside buildings, and limited smoking breaks. However, as some companies are now opting to push smokers out of the workplace altogether, acting commissioner of the Queensland Anti-discrimination Commission Neroli Holmes said denying someone a position because they were a smoker was “discriminatory, but not unlawful”. However, the practice could be a slippery slope, and Andrew Tarsy from the US-based Progressive Business Leaders Network questioned whether any such hiring policy is materially different from screening for other lifestyle-related behaviours, including being overweight and drinking alcohol.

According to the Victorian Equal Opportunity Commission, to provide equal opportunities job advertisements must not be discriminatory and employers should not seek to exclude smokers from applying for a position, unless the need not to smoke is an inherent requirement of the role. Acting Commissioner Karen Toohey warned factors such as weight, height or smoking were not relevant to a person's ability to do their job. “Every employer should be looking for “the best person for a job,” she said.

Smoking breaks and productivity

Some employers are justified in hiring only non-smokers, according to Action on Smoking and Health Australia chief executive Anne Jones. “What is very understandable is that some workplaces are saying they don’t want smokers to apply because they see it as a productivity issue,” Jones told The Herald Sun. She added that every workplace operates differently and some would be better off paying for employees to undergo quit courses.

One workplace lawyer said the practice of taking several 15 minute breaks a day is something many employers see as undermining productivity and it can be easily banned. “There is nothing stopping an employer asking a candidate if they smoke and how often,” Peter Vitalie said. “You can put into a contract that staff are not to smoke during office hours. You can also fix the time of people's breaks and request that in their break they do not leave your premises. There is no law that says you can't discriminate against smokers,” he added.

A representative from the Australian Human Rights Commission told HC that the issue is not covered in any of its legislation.

For information on revising your smoking policy –
Related Article: Smokers spend a year ‘lighting up’


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  • by Ross Jackson 15/05/2012 6:32:52 PM

    There is an obvious conflict between what Karen Toohey is reported to have said, and what Peter Vitali has said. Whilst weight and height are "physical features" upon which it is unlawful to discriminate in employment, smoking is not. Depending on the medical evidence it may be an impairment of nicotine addiction (but is not neccessarily)so with respect I think Karen is wrong and Peter is right-there is no law that says you can`t discriminate against smokers.

  • by Carole Goldsmith 16/05/2012 2:16:40 PM

    Smoking should be banned at work, out the front of work, in the streets and people have the right not to employ smokers. I would never employ a smoker, takes more sick leave, clothes smell, not as active in the brain, earlier onset of alzheimers - besides smoking kills.

  • by Satrina Brandt 16/05/2012 3:26:07 PM

    Is it unlawful to discriminate on weight and height? Which piece of legislation is that? It could create indirect discrimination eg. a minimum height may exclude races of shorter stature such as Asians and this would be unlawful discrimination. However, weight and height of themselves are not mentioned in the legislation and smoking isn't either. I think Karen Toohey was indicating that it was irrelevant to their ability to do the job. She didn't say that it is unlawful. Many smokers take additional breaks which is unfair and affects productivity. However, this is more of a management issue. Some smokers manage it very well and restrict smoking to designated breaks.

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