Debate Forum: 12/16

Forum Center: Workplace discrimination?  Or “up in smoke”?

By Sarah Sidlow

Illustration: Jed Helmers

“Thank you for not smoking” may soon take on a whole new meaning in a major Arizona county as the Pima County Board of Supervisors examines a proposal that would ban employers from hiring smokers as municipal employees. The policy, which would go into effect in July 2015, would also impose a 30 percent surcharge on the health insurance costs of tobacco users already on the payroll. In two more years, that surcharge would increase to 50 percent of the employee’s healthcare premium.
If this policy is approved, in order to be hired by the county, which contains Tucson and the University of Arizona, potential employees would have to provide a doctor’s note certifying them as having been tobacco-free for at least one year or submit to a drug test to prove they are nicotine-free.

Current employees who sign a legal affidavit declaring themselves non-smokers would receive a $5 healthcare discount per biweekly pay period.

This is not the first smoke-free policy entertained by the county. In 2013 a law was passed that prohibited employees, visitors, vendors and event-goers from smoking or using tobacco products anywhere on county property at any time.

Opponents of this newly proposed policy view the ban as workplace discrimination. They label it Nanny-Statism and claim it is a slippery slope in employment methods, which could also mean passing on candidates who may be overweight or have a genetic predisposition toward illnesses like breast cancer or diabetes.

Those in favor of the proposed ban cite the fact that Arizona is one of over 20 states that do not list smokers as a protected class under discrimination laws, meaning, technically, the proposed Pima County code would not be discrimination under the law.

Proponents also cite the health benefits of banning smoking, both for the smokers and for those who may be affected by second-hand fumes. They claim smoking is a lifestyle choice that affects a worker’s health and, potentially, the health of others. The nicotine found in smoking cessation aids like nicotine gum or patches would not be grounds for punishment under this proposed policy.

Moreover, proponents claim the policy would reduce the cost on taxpayers, who shoulder the healthcare costs of municipal employees. County health officials predict the new policy could save the county more than $1 million on healthcare costs every year as tobacco users retire and are replaced with non-smokers.

Pima County estimates 32 percent or 2,304 of its current employees are tobacco users, and they cost the county about $13.4 million each year, according to a memo from the Health Department.

Reach DCP Editor Sarah Sidlow at


Debate Forum Question of the Week:

Should employers who fund their employees’ healthcare policies with taxpayer money have the ability to think twice about hiring smokers without facing the consequences of employment discrimination?

Debate Left: I can’t believe I’m saying this, but …

By Ben Tomkins

“ … smoking comes nowhere near to meeting the criteria of a protected right … ”

Pima County’s proposed legislation to institute a smoking ban for all municipal employees is not only in complete accord with all legal precedent set forth by judiciaries up to and including the Supreme Court, it is ironclad economic and social policy.

For starters, I can tell you right now this would never even make it to the loading dock of the Supreme Court building.

The Tenth Circuit Court of Appeals’ ruling in Grusendorf v. City of Oklahoma City [sic] that a fire department could fire an off-duty trainee for violating a no-smoking policy was constructed solidly on Supreme Court precedent.

In Grusendorf, the plaintiff attempted to assert the right to privacy, expression and liberty and was roundly rejected. The court declared that the burden rests on the employee to demonstrate the state’s reasoning for a policy is frivolous rather than the other way around, that smoking comes nowhere near to meeting the criteria of a protected right, and tersely ordered the plaintiff to cover the court costs.

The critical point for Pima County is contained therein. There are instances where a specific circumstance, in this case smoking, is a symbol worthy of extrapolation into general law, and cigarettes aren’t it. Furthermore, Pima County’s legislation only becomes active upon suspicion of cigarette use in the same way you can’t come to work reeking of booze; it’s a problem because you made it public.

In other words, anyone who is trying to bring the Constitution into this is simply an ignoramus. Those are two of a dozen compelling cases on the subject, and an explosive civil liberties defense is about as impressive as a bottle rocket on the 5th of July.

Regardless, even if I give all that away, the smoking ban would easily stand on economic and social grounds because of Arizona’s preexisting relationship with tobacco.

In 1998, Arizona, along with 45 other states, sealed the books on the single most punitive civil settlement ever levied against any entity in the history of our country. For decades, the tobacco industry used a combination of in-house research, an aggressive campaign of lies and flat-out threats to counter the work of healthcare professionals around the world who clearly demonstrated smoking was, by far, the worst public health disaster on the planet. The Master Settlement resulted in a near total ban on cigarette advertising, a horrific financial penalty, of which Arizona received $3.2 billion, and a unanimous initiative by all the states involved to spend a significant portion of their settlements to establish a national foundation and state programs to convince people not to smoke.

The final payment of the settlement occurred in 2013, and I find it no small coincidence that this year Pima County is looking to pick up some extra cash by reducing their public health insurance costs. Investment in the longevity of a labor force and the state’s financial stake as an employer more than meet the modest requirements established in Grusendorf.

One could argue a tax would be far more appropriate, but I believe a few words on the subject from Sen. John McCain’s 2004 RNC Primary bid will suffice. When asked why he voted against a cigarette tax hike, he replied, “It makes no sense to encourage people to live healthier while making the government even more dependent on having people smoke.”

The only remaining complaint is that outlawing cigarettes to lower health premiums is a slippery slope to firing someone because they are obese. This, they say, could lead to a severe constitutional crisis. 

First of all, this completely dismisses the fact that the courts view cigarettes as a specific instance, not a generality. Obesity would almost certainly cross that threshold because, second, everyone has to eat, and nobody has to smoke.

Finally, there is a clear-as-day relationship between genetics and obesity. Smoking is, of course, a singular marker of potential health issues, while genetic, environmental and injury factors create a virtually limitless spectrum of human variation that would be impossible to delineate using the law.  

It is a sickening irony that a genetic argument was exactly the tactic used by the tobacco industry to create, as one Philip Morris vice president put it, a “psychological crutch and a self-rationale (for the public) to continue smoking.” Knowing full well the health risks, the tobacco industry systematically claimed that the increase in lung cancer among smokers was because of stress and genetics, and people under stress also happen to smoke more. It’s unbelievably revolting, and any person who equates obesity and smoking is guilty not only of an extremely superficial capacity for critical thinking, but also an extraordinary slander against his fellow man for which he should be infinitely ashamed.

Smoke if you’ve got ’em. Should the resolution be adopted, the opposition will be stubbed out in the ashtray of common sense and legal precedent.  

Ben Tomkins is a violinist, teacher, journalist and critically acclaimed composer currently living in Denver, Colorado. He hates stupidity and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of an issue. Reach Ben Tomkins at

Debate Right: Nanny state approaching warp speed

By David H. Landon

We have seen, in the past several years, an accelerated effort by government authorities at a number of levels attempting to make decisions that affect how people run their lives. As a result, the state is using its power to regulate the ability of law-abiding American citizens to engage in activities that, while perfectly legal, are supposedly bad for their health.

The “nanny state” is officially in overdrive. The federal government continues to expand its reach. Government intrudes into virtually every aspect of our daily lives, from the type of lunch we can send with our children to school, to the type of toilet we can buy, to the type of health insurance we can purchase, to the kind of light bulb we can use. Treating us like children, our federal and state governments “know” what is best for us and take away our ability to make our own decisions and, with that, our freedom.

The steady march continues as government moves toward banning or heavily regulating everything from electronic cigarettes to online gambling to energy drinks. Now we hear the FDA is beginning a process that could lead to a nationwide ban on the use of trans fats in the nation’s food supply. In every instance, we are told by the people in charge that these bans are for the good of “public health.” What they are implying by their actions is that people are incapable of making personal decisions about their health and safety for themselves.

The most famous example, of course, was former New York City Mayor Michael Bloomberg’s effort to ban most businesses from selling sodas in containers larger than 16 ounces. Ultimately overturned by a court, the mayor was only trying to protect us from ourselves. Other similar efforts across the country have included efforts to ban the sale of foie gras, a high-fat delicacy derived from goose liver. You can’t be trusted, it would seem, to decide how many calories to put on your Ritz Cracker. Other efforts include several jurisdictions in California attempting to regulate the contents of the famous McDonald’s Happy Meal.

Seriously, enough is enough! It appears a county government in Pima County, Arizona is about to enact sweeping changes in its HR rules for hiring new employees and disciplining the personal habits of its current work force. In Pima County, if you are a smoker, you need not apply for employment. Smoking will be cause for your application to be rejected. Smoking, it seems, is very, very bad for your health. Here’s a news flash for the Pima County Commission: unemployment is very, very bad for your health as well.

If the proposed legislation passes this week, smokers will become ineligible for employment by the county government. Those employees currently employed will pay a 30 percent surcharge premium on their health insurance beginning in July 2015. In two years, if you haven’t gotten the message, the surcharge goes to 50 percent. Potential employees have to be certified by their doctors that they have been tobacco free for six months in order to qualify for employment. Arizona health officials predict cutting smokers from their payrolls will save the county $1 million annually on their health insurance budget. They estimate 32 percent of the current work force of 2,300 workers uses tobacco.

So what personal behavior is next for government to target in a cost-savings effort? How about the consumption of alcohol? That can cost a pretty penny. How about the eating habits of the workers? Certainly poor eating habits contribute to high blood pressure, diabetes and heart disease. Maybe they can initiate weight limits for future employees. And current employees have to weigh in each day as they punch the time clock. If we only could eliminate hiring the fatsos among us, we could save untold insurance premiums.

If they really want to save money, why not really drill down? Certainly, there are other health issues that potential employees are carrying around that can be screened and targeted. Employees who have the predisposition to develop some serious diseases like some forms of breast cancer can be detected through genetic testing. According to the Human Genome Project, more than 900 genetic tests are available. Pregnant women, newborns, adults with a family history of certain diseases and adults with illnesses whose diagnoses can be confirmed by genetic means may undergo genetic testing. Imagine the money government can save by rooting out and not making the mistake of hiring any of these defective humans.

The point is if Pima County is allowed to discriminate based upon a personal behavior, where does this invasion of personal behavior and personal choice stop? Whatever legal activity someone engages in during their non-work time shouldn’t be the business of anyone else and surely not the business of their employers. Maybe smoking isn’t a constitutionally protected suspect classification, for which discrimination has to overcome a very high burden in order to become a governmental policy. But this is a personal freedom issue. And many of us are sick and tired of watching the government on all levels chip away at those personal freedoms.

Being truly free requires the ability to make personal choices and live our lives as we see fit. This is the ultimate “self-government.”

David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee. He can be reached at

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Reach DCP editor Sarah Sidlow at


  1. Every Election Is the Most Expensive Election. Or Not. - SmiLoans - December 16, 2014

    […] Debate Forum: 12/16 “Thank you for not smoking” may soon take on a whole new meaning in a major Arizona county as the Pima County Board of Supervisors examines a proposal that'd ban employers from hiring smokers as municipal employees. The policy, which would … Read more on Dayton City Paper […]

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