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Healthism and the Law of Employment Discrimination

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ABSTRACT: Recently, several employers around the country announced they would no longer hire applicants who use nicotine, even off the clock. Just last year, one entity adopted a policy that it would not employ individuals classified as severely obese. Read together, nicotine and obesity bans can be understood as employer practices that intentionally screen out unhealthy individuals.

Yet should these employer practices constitute legally actionable discrimination? That question is the central inquiry of this Article. It begins by identifying those recently adopted policies as discrimination on the basis of employee health. It then analyzes this novel brand of employment discrimination by comparing employer bans on nicotine and obesity with the employment actions forbidden by the current federal statutes that cover health-related information, mainly the Americans with Disabilities Act, the Rehabilitation Act, the Genetic Information Nondiscrimination Act, the Health Insurance Portability and Accountability Act, and the Affordable Care Act. The Article distinguishes between discrimination on the basis of health-related traits and discrimination on the basis of health-related conduct. Because the current federal employment discrimination laws are uniformly trait-based, prohibiting employment policies related to nicotine use and weight requires a different kind of antidiscrimination statute. The Article then surveys existing state legislation that limits an employer’s ability to discriminate on the basis of unhealthy behavior. It ends by proposing that well-structured legislation could reconcile the concerns surrounding this contentious issue, simultaneously shielding the interests of employers while offering workers protection.

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