No Smoking

January 27, 2012 1:05 PM

HR Filter: Can you ask in an interview if the person is a smoker?

My company will be looking for a new receptionist/customer service person. We are a 3 person office, with additional bosses on occasion. No one smokes, and in adding a new person would like that person not to be a smoker.
Besides the sniff test is there something we can do?

posted by jrc to Work & Money (28 answers total)

I would never have asked this question directly, myself. Howeer, I have asked leading questions around the issue, such as:

1. What kind of rest breaks have you been entitled to in past jobs?

2. We prefer our receptionist to take one full hour break in the middle of the day instead of a half hour and two 15-minute smoke breaks (air quotes around "smoke break"). Is that okay with you?
posted by sillymama at 1:14 PM on January 27, 2012

Not that you necessarily cannot, since I do not know what state you are in, etc - however, as an employer you probably want to avoid someone that takes multiple smoke breaks throughout the day, discounting the whole insurance thing as well - so a great way finding out without asking about this directly is to ask if the candidate had trouble with health policies in the past.

What to ask instead: In the past, have you been disciplined for violating company policies forbidding the use of alcohol or tobacco products?
posted by banannafish at 1:15 PM on January 27, 2012

The answer depends on the state you are in. If you are still in Massachusetts, smokers are not a protected class according to the MA Commission Against Discrimination. Smokers are a protected class in other states. NY times article about tobacco free hiring.
posted by Nimmie Amee at 1:17 PM on January 27, 2012

This article says:
What you can't ask: Do you smoke or drink?

As an employer, you probably want to avoid someone who has a drinking problem or will take multiple smoke breaks throughout the day. It's even a concern for insurance. Instead of asking about this directly, find out if they've had trouble with health policies in the past.

What to ask instead: In the past, have you been disciplined for violating company policies forbidding the use of alcohol or tobacco products?

Another article:Can you legally refuse to hire someone who smokes?
posted by OnTheLastCastle at 1:17 PM on January 27, 2012

From what I remember from my training about interviewing people (this is in New York), you can get into Deep Shit if you are suspected of asking questions that can prevent a person from becoming employed at your business if those questions don't affect their ability to do the job.
posted by griphus at 1:17 PM on January 27, 2012 [8 favorites]

IANAL, but as far as I know, there is no legal protection for smoking. It is not a protected class.

I have been directly asked "do you smoke?" and have been told explicitly that smoking was prohibited at the workplace. However, at said employer, I was not told that I would not have been hired if I smoked outside the workplace.
posted by saeculorum at 1:18 PM on January 27, 2012

(See also: asking people whether they are a citizen or not vs. asking if they are legally allowed to work in the United States. The former is a Deep Shit question, the latter is perfectly okay.)
posted by griphus at 1:19 PM on January 27, 2012 [2 favorites]

IANAL, but as far as I know, there is no legal protection for smoking. It is not a protected class.

Keep in mind this won't prevent you from getting sued.
posted by griphus at 1:20 PM on January 27, 2012 [3 favorites]

The real issue is that you don't want them interrupting their day to take smoke breaks, correct? So why can't you just state that in the beginning of the interview, when describing what the work environment will be like, that yours is a smoke free environment and all employees are expected to abide by this policy?

Because really, what they do outside of work is between them and their health insurance, right? I know plenty of people who consider themselves smokers but would never even dream of smoking during the workday and "outing" themselves to their coworkers.
posted by stellaluna at 1:23 PM on January 27, 2012 [15 favorites]

A thought for the sniff test: I have had a few roommates who were smokers, but they were "outside smokers" only and did not bring it indoors because even they hated the indoor smoke smell. As a general rule, those people do not reek of smoke all the time in the way that indoor smokers do. If you have a sensitive nose (I don't) you may be able to tell, but it might not be obvious.

I think in general you can't ask this because it doesn't affect if they can do the job or not, but you could institute a no-smoking policy at your office.
posted by jenfullmoon at 2:00 PM on January 27, 2012

Maybe you can't ask. But something I've heard hiring managers do: take the candidate out to lunch, and after lunch offer a cigarette and see if they accept.
posted by evilmomlady at 2:14 PM on January 27, 2012 [1 favorite]

FWIW, I don't smoke and would be skeeved out, as a job applicant, I were asked a question like, "In the past, have you been disciplined for violating company policies forbidding the use of alcohol or tobacco products?" I mean, jeez...

You should discuss what your actual concerns are. Considering it's receptionist work, I think it would be totally normal to say something like, "Just so you're aware, we're a bit of a skeleton crew here so there won't be anyone to relieve you for smoke breaks and that sort of thing throughout the day."
posted by Sara C. at 2:27 PM on January 27, 2012 [1 favorite]

IANAL, but as far as I know, there is no legal protection for smoking. It is not a protected class.

It varies from state to state, but there actually are laws in more than half of the US that specifically prevent employers from discriminating against employees who smoke. The OP didn't mention which state they are in, but the Wikipedia page I linked to has the relevant laws for each state. Employment laws are in fact very strict about what information you can or can't use to make hiring decisions, which is why I personally think it's crazy that so many employers do things like look job candidates up on Facebook, since they will be gathering a lot of information that they cannot legally use to make hiring decisions.
posted by burnmp3s at 2:59 PM on January 27, 2012 [2 favorites]

North Carolina (a large tobacco producing state, unsurprisingly) actually does protect workers from discrimination for the "lawful use of lawful products during nonworking hours." So it varies depending on jurisdiction.

As some other commenters have suggested, you can have a policy that governs smoking during work hours, and just let people live their private lives outside of the workplace.

IANYL, TINLA
posted by bbq_ribs at 3:00 PM on January 27, 2012 [1 favorite]

Isn't saying "Smoking is absolutely forbidden everywhere in this building and on the grounds" enough?
posted by Sidhedevil at 3:04 PM on January 27, 2012 [2 favorites]

Maybe you can't ask. But something I've heard hiring managers do: take the candidate out to lunch, and after lunch offer a cigarette and see if they accept.

That sounds really iffy to me. Maybe the person is a purely social smoker who feels it would be rude to say no?

I utterly loath and detest cigarette smoke and am happy to be the "don't you see the no smoking sign" nazi but I still wouldn't ask someone whether or not they were a smoker if I were hiring. I'd simply make it clear that we have a no-smoking policy and enforce it strictly. I can't see what skin it is off the employer's nose if the person smokes off the premises* at lunchtime and outside of work hours.

(*One caveat--if someone smokes a cig outside the building and then immediately walks inside, it is amazing just how much smoke and smoke-smell they can bring in with them. I've been in movie-theaters where someone has walked in and managed to fill the whole theater with the smell.

Second caveat--if the employer is providing health insurance it's not entirely unreasonable to pass on any increased premium cost that smokers might be subject to to the employee.)
posted by yoink at 3:15 PM on January 27, 2012

Totally depends on jurisdiction! In Michigan, there's a company that quite publicly fired all its smokers (after giving them a year to quit). And Sarasota County in Florida stopped hiring smokers.
posted by mskyle at 3:23 PM on January 27, 2012

I wouldn't do the "offer them a cigarette" thing at all. A "social smoker" or someone who is nervous/trying to fit in may take the smoke even if they aren't what one would consider a "smoker."

Your best bet is to immediately implement a "no smoking" policy that extends to building grounds and put up a big freakin sign that any applicant won't be able to miss.
posted by radioamy at 3:59 PM on January 27, 2012 [6 favorites]

Just as an FYI to the sniff test: Some people live with smokers and smell like smoke. Even though they themselves are not smokers.

Please don't let that be your only way to judge.
posted by royalsong at 4:25 PM on January 27, 2012 [6 favorites]

In Texas, you can discriminate against tobacco users. Several large corporations and hospitals refuse to hire any smokers, even if you only smoke on your own time over nights and weekends. They do a pre-employment nicotine test, and you are on notice that they can do random tests. For other legal yet unhealthy habits, most companies just screen based on what they can observe during an interview.
posted by Houstonian at 4:48 PM on January 27, 2012

Maybe you can't ask. But something I've heard hiring managers do: take the candidate out to lunch, and after lunch offer a cigarette and see if they accept.

I find this seriously disturbing on several levels and strong urge you to not follow this advice.
posted by joe lisboa at 5:12 PM on January 27, 2012 [9 favorites]

*strongly urge ...
posted by joe lisboa at 5:12 PM on January 27, 2012

I agree with KSML that the best approach is probably to state that you are a non-smoking workplace, and smoking is not permitted within x feet of the entrances; then review the break policy, perhaps emphasizing that 5 minute "smoke breaks" are not permitted. I would be really leery about asking a candidate directly if they are a smoker.
posted by purlgurly at 7:59 PM on January 27, 2012 [1 favorite]

Okay, you ask if they smoke or would have a problem with a non-smoking policy:

These people get considered for the job:
Answer: No. In real life: Lives with a heavy smoker, smells like smoke.
Answer: No. In real life: Quit, but hasn't quit for the last time yet.
Answer: No. In real life: Lied to get job. Sneaks off for smoke breaks, wastes time hiding it.
Answer: No. In real life: Doesn't smoke, but is a cell-phone yakker or a scented spray addict or has BO issues.
Answer: No. In real life: Success! Regular ol' nonsmoker.
Answer: No. In real life: Never smokes during the day, you never find out.

These people are rejected:
Answer: Yes. In real life: Never smokes during the day, you would never have known without asking.
Answer: Yes. In real life: Conscientious about washing hands, brushing teeth, no extra breaks.
Answer: Yes. In real life: Quitting successfully.
Answer: Yes. In real life: Your worst smoky nightmare.

This person could be any of the above, or a future client, etc.:
Answer: Irrelevant, they're offended that you'd put this much weight on a personal question.

Are you sure that smoking is the hill you want to die on here?
posted by desuetude at 8:33 PM on January 27, 2012 [4 favorites]

Honestly, I would suggest that your company budget to consult with a qualified HR lawyer. They would not only be able to tell you whether this is a legal discrimination, but whether it would have likely or possible secondary implications which could cause trouble even if the primary question would not. If your question is worded in such a way that it could be perceived as having adverse impact on a protected class, you could be in a world of hurt. A good HR lawyer can tell you whether you can ask the question without being discriminatory in any other way. If you can, that lawyer can also tell you how to ask it word for word, oral, written, or both.
posted by Saydur at 11:41 PM on January 27, 2012

A tactful way of posing the question would be to say, "We are a smoke-free company. Do you have any issues with that?" Most of the time people will say right away, "I don't smoke," or if they do, they understand what you expect. If you are concerned about someone smelling like smoke, simply state that as part of your company's smoke-free policy, employees are expected to not smell like smoke. It's a perfectly acceptable request. You can explain the company's break structure as well if you're concerned about frequent breaks. In short, you can expect your new hire to appear and behave like a non-smoker while at work.

You probably should not ask directly if they are smokers, because you would be asking about their smoking habits outside of work. Although many major companies have "smoker-free" policies, including companies in Massachusetts, the ACLU calls an employer's refusal to hire smokers "lifestyle discrimination." At least 29 states and the District of Columbia have statutes that protect employees from adverse employment actions based on their off-duty activities, including smoking, and federal laws (and the ADA) may also come into play.

18 jurisdictions have enacted statutes prohibiting discrimination against smokers. They are Connecticut, the District of Columbia, Indiana, Kentucky, Louisiana, Maine, Mississippi, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Virginia (for public employees only), West Virginia and Wyoming. Eight states protect the use of lawful products. They are Illinois, Minnesota, Missouri, Montana, Nevada, North Carolina, Tennessee and Wisconsin. Four states offer statutory protection for employees who engage in lawful activities. They are California, Colorado, New York and North Dakota.

Source: Society for Human Resource Management: "Is a 'Smoker-Free' Workplace Right for You?"
posted by moochoux at 3:16 AM on January 28, 2012

If a smoker you were interviewing knew just how majorly uncomfortable you and your co-workers are about smoking, they might not want to work there and feel like a pariah anyway. So, show the same fervor in your interview when you describe the smoking situation that you showed here and you should not have too many smokers call you back. Find some other people you would find it easier to respect.
posted by TheRedArmy at 9:05 AM on January 28, 2012

You obviously have the right to hire someone who doesn't need to constantly go outside, and you certainly have the right to demand people not stink.

Other then that? if it's not something that doesn't impact the workplace, why does it matter?

I would just tell people that you don't want anyone taking smoke breaks during the day.

Also, you can ask whatever you want. but if you ask about being a member of a protected class, and then don't hire them, you open yourself up to the potential of a lawsuit, which are expensive even if you win. Apparently some places don't allow you to discriminate against smokers, and in that case you shouldn't do it.
posted by delmoi at 6:20 PM on January 28, 2012