Discrimination Because of Smoking

Question to Ask the Workplace Doctors about smoking discrimination:

I work in a unionized shop with four different departments. Three of the four are allowed to go for a so-called (smoke) washroom break in a designated location. I’m going to be receiving counseling for smoking on Monday. Is this clearly a case of harassment if our department isn’t allowed to go on smoke breaks? I already know what the company is trying to do. They will counsel me, and I’ll say discrimination. Then, the company will say no smoke breaks on your washroom breaks, the only time allowed for a smoke will be on your 15 and 1/2 hour paid breaks.

But, my concern now is: since people on the floor know I’m receiving a counseling, if the company decides to make it so all departments will not smoke, it will poison my work area as other workers will be mad at me for stirring the pot. I could sit in the washroom like other people for 20 minutes, or go for a quick 5 minute smoke, get my fix and get back. My production has been good since I have been employed here–over eight years, and I have always had a quick smoke break. Why all of a sudden this change? Please help.

Signed, Want to Smoke

Dear Want to Smoke:

First, keep in mind that no company is required to allow anyone to have a smoke break, nor are they required to have a designated smoking area. They can say that no smoking is allowed on the property, anywhere. Smoking is not a protected issue, so it would not be considered discrimination under the law if smokers, or even any individual smoker, were not allowed to smoke.The cases I know of where specific individuals have been told not to smoke on company property, while others were allowed to do so, have involved individuals who violated some other aspect of company policy about smoking. (They left litter, or took too long or were gone too may times.)I don’t know what your situation is, but I would suspect that there is more to it than the basic issue of whether or not you are allowed to smoke at work. Maybe it is WHERE you smoke, how long you take when you smoke, the timing of your breaks, or other aspects about it. You don’t say what this counseling consists of. It seems you are expecting a corrective interview. If that is the case, there must be something your supervisor or manager thinks needs to be corrected, about your behavior or performance.Before the meeting it would seem worthwhile to consider what the meeting is actually about. If you think you will be told that you can’t take a smoking break, you’ll have to decide how you want to handle that. But, there is no point in saying you feel discriminated against, because even if you are being treated differently, it isn’t discrimination under the law, unless you think the action is based on your gender, race or other protected status.

If you are afraid your company will stop all smoking breaks for everyone if you respond negatively to the counseling, it will be up to you to respond in the way that doesn’t create further conflict.If you think you will be told to use better judgment about some aspect of the way you were using your breaks, you will need to decide before the meeting whether your smoking is more important to you than your job.However, if the whole issue of smoking at work is just an unwritten policy–and technically no one is supposed to be smoking on breaks, then it may be that your department is going to be the only one to enforce the rules, and that would be within their rights. It may be that the other departments will start enforcing the policy too, but unless you did something specifically to cause a problem, I don’t see how you could be blamed for that. You say you are unionized. If so, ask your representative for advice prior to the meeting, or ask him or her to be present. That way, if a change in the policy occurs, the representative will know that it wasn’t your fault. That might go a long way toward keeping good relationships.If you have been a hard worker and haven’t caused conflict in other ways, this will likely be a small thing in the overall scheme of work. The important issue will be how you handle it, and how you come out of it. You can be belligerent and accusatory, or accepting even though you are frustrated. The first approach will only create hostility.I hope you will be able to find a way to handle this effectively, and with the realization that smoking, while enjoyable to you, or necessary to you, should not be allowed to harm your paycheck or your work future.Best wishes!

Tina Lewis Rowe

Tina Lewis Rowe

Tina had a thirty-three year career in law enforcement, serving with the Denver Police Department from 1969-1994 and was the Presidential United States Marshal for Colorado from 1994-2002. She provides training to law enforcement organizations and private sector groups and does conference presentations related to leadership, workplace communications and customized topics. Her style is inspirational with humor.