Smokers Exit Here...

"Tobacco use ... remains in a class by itself. Tobacco use is known to cause the deaths of five million people worldwide each year -- an entirely preventable public health crisis. Tobacco is the only legal consumable product that kills approximately one-half of the people who consume it, it is highly addictive and cannot be used safely in moderation. All of these factors are clear bases on which tobacco use can be distinguished from other potentially hazardous activities." 
2008 paper, William Mitchell Law Review, journal of the William Mitchell College of Law, Minnesota

The Ontario Supreme Court got stuck on the definition of disability when some legal scholars in the debate over smokers-rights, as opposed to the right of the public to be free of second-hand smoke effects, and the right of employers to hire only workers who don't smoke, to come up with this definition:
"Smoking and the addiction that accompanies it does not interfere with a person's effective physical, social and psychological functioning, the results that often characterize addiction to alcohol. Nicotine addiction and the symptoms of withdrawal that result when one discontinues smoking are not a mental or physical disability within the meaning of s. 15(1) of the Charter."

An Ottawa Internet company has a policy whereby it will hire only non-smokers for their working staff. Non-smokers, period. Not people who will be amenable to desist from smoking during working hours, and smoke at home, in their vehicles, on their time off from work, but those who have no interest whatever in smoking. The company, Momentous, makes it clear to its 120 employees that should they smoke at all, they risk being terminated.

"People say, well who else wouldn't you hire? My answer is, we don't hire the brilliant jerk. You could be the best at your job in the world, the best on the planet at  your job, but if you're a jerk we don't want you here", explained Rob Hall, Momentous president. "We had seven employees [who smoked] and we brought in doctors and nurses three times a week from the Ottawa Heart Institute, and we paid for it all of course. We said we'd find anything they wanted ... one person tried hypnosis and it worked for them, and all seven quit."

"We don't feel it's justified to discriminate [against] adult smokers because, what's the next thing? If you want to discriminate smokers, do you want to discriminate someone who eats fats or sugar? There's no end to it", complained Eric Gagnon, spokesperson for Imperial Tobacco Canada.  Little wonder the tobacco industry feels put out by their customers' self-injurious habit being singled out for special treatment.

Such discriminating hiring practices as an employer making it abundantly clear that smoking employees are not welcome, does not represent a pejorative, but a careful choice-selection. Claiming this decision to be contrary to someone's human rights won't work, according to legal experts, unless smoking can be seen as a disability because of its addictive qualities. The Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms prohibit such discrimination through disability.

But it's a stretch to claim that tobacco addiction represents a disability. It is most certainly potentially disabling, but those who succumb to the addiction have any number of aids at their disposal to break their habit. Enter any hospital and the heart and stroke specialists, attending nurses, all point to signage offering help in smoking cessation, and encourage it strenuously to avoid further health problems down the road, of huge magnitude.

"A lot of people think it's their right to work here and it's not. People will scream the discrimination word", said Mr. Hall of Momentous. "Well, of course it's discrimination, it's just not illegal discrimination and there's a huge distinction between those two things. If ten people apply for the job, the first one to apply doesn't get it. We're looking at many other factors and smoking happens to be one."