When Santa Monica banned smoking in all public places, there were many concerns that this action would destroy tourism. This has been our first summer in a “smoke-free city,” and the city has not died. Tourism is vibrant, and the parks and beaches are a little more pleasant. The good news is that the city hasn’t fallen apart. The bad news is that the city hasn’t fallen apart. This will lead to more of this type of social engineering of public policy concerns, and that leads to the storm troopers.
For a view of what’s to come, take a look at Europe. The European Commission, the ruling body of the European Union, has decreed in a highly anticipated ruling that it is legal for an employer to discriminate against smokers in their application process. I don’t mean people who smoke only at home, or banning the workplace smokers. The law allows an employer to discriminate against a smoker, wherever and whenever they smoke. Even in the privacy of their own homes on the weekends.
Beginning in December 2005, the World Health Organization stopped accepting applications from people who smoke. The organization has fought the fight against tobacco and is now taking it one step further, in a very public way. This type of wide ranging investigation into potential employees is the tip of the iceberg of what we can expect to see in the not-so-far future.
Across the country, companies are instituting health-maintenance programs, cardiac awareness programs, weight maintenance programs and sleep apnea treatment programs, all in a concerted effort to reduce their health-insurance costs.
It won’t be much longer until every company has the legal right to discriminate against people who are smokers, which opens the door to discrimination against people who are overweight or people who drink too much. It used to be that the bottle in the bottom desk drawer would get Joe fired. These days, it’s looking more and more like the cheeseburger with fries and the chocolate shake that Mary is eating could be what would cause her to be fired. Julio’s ducking out after lunch to catch a quick cigarette may cost him his job.
All this sounds a lot like big Brother and George Orwell’s 1984, but this is not Big Brother in action. This is the law of unintended consequences. Big Brother has to do with government, and when government is making lifestyle rules, that is the 1984 about which George Orwell wrote. This is just business. Business responding to the demands of employees.
Here’s the fundamental basis of what Big Brother means. There’s a relationship between a citizen and his government. That is a mandatory relationship. I may not like the government, but whatever government I have, whether Republican or Democrat or Whacko Socialistic Enviro Terrorists, I have to accept it. But with an employer and employee relationship, it is a voluntary relationship. No employee must work for any particular employer. We have a 13th Amendment to the U.S. Constitution to assure that.
Consequently what that employer chooses to demand of the applicants and employees will generally be covered under the business rule meaning, with certain mandated exceptions for racial, gender and sexual orientation discrimination. The reason for this prohibited discrimination is that these are considered to be immutable characteristics. Immutable means there is no element of choice in it. A black person cannot choose to suddenly become Asian. A woman cannot choose to become a man without a great deal of surgery and therapy before she is legally recognized as a he.
The business judgment rule allows the employer to make decisions in relation to whom they wish to hire in a business. This discretion has historically been given wide berth, and only recently were restrictions placed on most employers in terms of discriminatory behavior.
The demands of the employer and the employee are different and generally at odds. On one hand, we have employees who are demanding health insurance from their employers. On the other hand, employers are facing increased costs on a monthly or annual basis as a result of having to pay the monthly premiums for a group of people who have a disincentive to maintain their health. In the insurance business, this is called reverse selection. Reverse selection means that the most unhealthy people will fight the hardest for health insurance so that their medical costs will be covered. The problem with this is that the employer is now faced with having to pay higher insurance premiums for sicker people.
As business becomes more competitive, each company must find ways to reduce expenses. One of the largest expenses an employer faces is health insurance for its employees. Anything that an insurer or an employer can do to reduce those costs has a much greater impact on profitability. If an employer could build a company with 25-year-old, marathon-running, vegetarian, nonsmoking, soy-milk drinking, bottled water guzzling people, it would have an ideal group of people from a health insurance perspective.
Santa Monica has taken a leadership position with its no smoking policy in public places. Now I think our City Council should continue that trend, and we, as their employers who are paying for their health insurance with our taxes, should encourage them to take some new stands. Next time you see a councilmember eating a cheeseburger, let them know that you disapprove of how they are risking their health and costing us increased insurance premiums. When you see a member drinking a beer, scold them. They should be denied meat, as it causes heart conditions. We can only get them to change their ways by putting pressure on them, the same way in which they put pressure on the smokers. Humiliate them, embarrass them, and make it uncomfortable to eat in an unhealthful manner.
After all, they’ve been very successful at leading social engineering so far. We should help them to help us. (David Pisarra is a business development lawyer in the Santa Monica firm of Pisarra & Grist. He welcomes your questions and comments. He or 310-664- 9969.)
Originally published in the Santa Monica Daily Press print edition on August 15, 2006. Read the original PDF.