Off-the-job smoker sues over firing

The Boston Globe reports:

A Buzzards Bay man has sued The Scotts Co. , the lawn care giant, for firing him after a drug test showed nicotine in his urine, indicating that he had violated a company policy forbidding employees to smoke on or off the job.

The suit, filed yesterday in Suffolk Superior Court, is highly unusual because it involves an employee who was terminated for engaging in legal activities away from the workplace. The lawyer who filed the complaint said he believes it is the first of its kind in the state.

Scotts announced last year that it would no longer hire tobacco users, a policy company officials said was intended to improve employee wellness and drive down the company's healthcare costs. But civil libertarians say it violates personal privacy rights and could be used to mask age discrimination or other illegal behavior.

"Employers should be greatly concerned about how employees perform their jobs and what happens in the workplace, but how employees want to lead their private lives is their own business," said Boston lawyer Harvey A. Schwartz, who represents Scott Rodrigues in his civil rights and privacy violation lawsuit against Scotts.

"Next they're going to say, 'You don't get enough exercise' or 'Both your parents died of a heart attack at age 45 so we don't want to hire you because you're more likely to need medical care,' " Schwartz said. "I don't think anybody ought to be smoking cigarettes, but as long as it's legal, it's none of the employer's business as long as it doesn't impact the workplace."

This could be a very interesting case,I doubt it will lead to companies hiring who they want for whatever reason.Few people believe in the free market in hiring.