Refusing to employ smokers has gained the status of a global trend. Leading the movement is the World Health Organisation, which stopped recruiting smokers in 2005 and has retained that policy ever since. In the US, the practice has taken off: a recent article published in the Wall Street Journal noted that hiring bans are legal in twenty-one States, with four per cent of US companies already refusing to employ smokers and another 2% planning to do so in 2014.

So why are employers and recruitment professionals refusing to employ smokers? For the WHO, it’s about values: as an organisation at the forefront of the battle against smoking, it claims that it must show that this is reflected in all its work including its hiring practices. For other companies, a case can be made for discriminating against smokers because of the various studies suggesting that smokers typically have a higher rate of absenteeism than non-smokers. No doubt many employers also have concerns about the productivity lost when workers step out of the office for a smoke.

In light of this international trend, some Australian companies want to know whether they can discriminate against smokers as a group. The answer is that there is no obvious legal bar against doing this. No statute prohibits the specific act of refusing to employ smokers, and no Court has been asked to rule on its legality. Only one case — Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Women’s Memorial Club Ltd – raises the possibility that discriminating against smokers may be legally uncertain.

The plaintiff in Marsden was a methadone addict who was expelled from the Coffs Harbour and District Ex-Servicemen and Women’s Memorial Club. He claimed that the club expelled him by reason of his methadone addiction. This was illegal, the plaintiff said, because of the Disability Discrimination Act 1992 (Cth), which prohibits discrimination on the basis of a person’s disability. The judge therefore had to consider whether methadone addiction was a disability.

The definition of “disability” given by the Act is broad. It includes“a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour”. In Marsden, Justice Branson of the Federal Court had no difficulty finding that methadone addiction fell under the definition of “disability”. Her Honour held that methadone addiction will be construed as a disability regardless of whether an addict’s symptoms are alleviated by appropriate treatment.

In the wake of Marsden there was some alarm at the idea that substance addiction can be regarded as a disability. HR professionals called up lawyers to ask what other kinds of addictions employers were not allowed to consider, and lawyers could only reply that the law was unclear. This controversy led the Commonwealth Parliament to consider removing protections for drug-addicted people in the DisabilityDiscrimination Amendment Bill 2003 (Cth). But after a Senate Committee recommended that the amendment be subject to further inquiry, the Bill was left by the wayside, meaning that whatever Marsden stands for, it remains good law.

The case therefore remains significant to the question of whether refusing to employ smokers is legal. If a judge were to find that addiction to smoking was a disability, it would be illegal under the Disability Discrimination Act for employers to refuse to employ smokers unless they could prove that smoking affected a person’s ability to do his or her job.

It is however significant that in Marsden, Justice Branson considered the long list of oppressive withdrawal symptoms that accompany any attempt to quit methadone. This suggests that in order for an addiction to be characterised as a “disability” the addiction must be difficult to overcome. Smoking may not have this characteristic. Unlike methadone addicts, smokers can overcome their smoking habit by using nicotine substitutes such as patches or gum. Of course, if Australian employers were to follow the example of some American companies and introduce urine testing for nicotine traces, they may have to prove that nicotine addiction is not a disability. This question would raise debates about how arduous it is to kick the nicotine habit—a question the law has not yet answered. Discrimination against smokers and nicotine addicts therefore remains a legal grey area.

Even if refusing to employ smokers is legal, there may be good reasons not to take such a hard line approach. For one thing, employers may lose the opportunity to hire exceptionally talented employees. For another thing, organisations that publicise such a policy may experience a backlash from customers or clients who are affronted by what they see as an infringement of smokers’ rights and privacy. This sort of community backlash has the potential to reach the ears of law-makers, as it did in Pennsylvania, where the government passed legislation that made it illegal to refuse to employ smokers.

Furthermore, there may be ways of designing organisational policies that alleviate the need for a hiring ban. For example, there is nothing illegal about asking employees who take cigarette breaks to take that time off their lunchbreak. And there is perhaps much to be said for measuring an employee’s productivity and work output rather than the number of minutes they spend at their desk. This approach would also avoid the prospect of having to convince the Human Rights and Equal Opportunity Commission that an addiction to smoking is not a disability.