Smoker Policy - Firing smokers with discrimination

[eeyee97]

What is the name of your state (only U.S. law)? Florida

Not sure this is the right forum, but here goes as I am a first timer to this site ---

I work in Florida, which is a right to work state. This essentially benefits employers and hurts the employees.

I work at a company that enacted a no smoker policy company- wide. This was done about 2 years, first to stop employees from smoking on employment facilities while working. Then last November it was non smoking either on the job as well as personal time.

There has been several random drug tests which ended with the employees positive of smoking - fired.

Recently, an employee was drug tested and positive of nicotine and should have been fired. But instead of being fired, the General manager of the hotel this employee worked for knew of the smoking and the positive test results - he did not fire this employee.

Would favoring this employee over those fired be considered discrimination?
If not, is there recourse to further the process of firing this employee for breaking company protocol?

Much appreciated.

 

[cbg]

First of all, right to work means that you do not have to join a union to get work. What you mean is employment at will. Every state in the US except Montana is an employment at will state, and even Montana follows the at-will doctrine in some circumstances. Whether at-will favors the employer or the employee depends on the market. I agree that currently it favors the employer. This is not always true and in fact favored the employee as recently as less than ten years ago.

Now, to your question. Smoking or not smoking is not a protected characteristic under Florida employment law, according to the website for the FL Human Rights Commission. That means that it is LEGAL to discriminate on the basis of smoking/non-smoking status. If the GM wishes to retain this employee, he may do so, EVEN IF he has previously fired others, UNLESS there is a VALID reason to believe that the difference in treatment is due to a characteristic that IS protected by law.

 

[eeyee97]

furthermore....

Thank you for the clarification and the response to the smoking action.
There is no protected category reason for retaining this employee. What the GM told this employee was that he like the employee and would give him the benefit of the doubt b/c he was a good worker. But he needs to try stopping it[smoking].

This to me says the company has a policy, which allowed smokers almost 2 years to quit, which can fire anyone caught with a positive test result - EXCEPT those they liked. The others were not given the benefit of the doubt because of circumstances not protected or work performance.

So would it be improper/wrong to go back to human resources or the owner of the company and point out this fact? If this is the situation that occurs I do not see is right - company wide policy means company wide I thought (with no protective issues involved in this situation).

Is there anything further I could do further in this situation, within my legal rights as an employee who did have to quit smoking?

Thanks for the information and insights!

 

[cbg]

You are free to point out the discrepancy to anyone you want. However, it is the right of the employer to make exceptions if he chooses to, and as long as he is not doing it on the basis of a protected characteristic, which you yourself say he is not, there is nothing illegal about it; no one has to do a thing about it; and you can (I say can - I do not say will) be fired for questioning the boss.

Your choice. There is nothing prohibiting you from complaining; there is no law that will protect you from the consequences of complaining in this instance.