Civil liberties under attack

Mary Catherine Roper is a staff attorney at the American Civil Liberties Union of Pennsylvania's Philadelphia office.

Q: What is the ACLU's position on company policies that screen and bar smokers from being hired?

A: The ACLU opposes all employer policies that try to control employees' lives outside the workplace and supports legislation to prohibit lifestyle discrimination in the workplace.

Both the U.S. Constitution and the Pennsylvania Constitutions contain strong protections against governmental invasions of our private lives. Those laws do not apply to invasion of our privacy by non-government entities such as employers, credit card companies, landlords and others with whom we do business.

In Pennsylvania, most people are employed ''at will'' -- that is, without an employment contract. That means that the employer can impose any conditions on that employment that it wants to impose, so long as it doesn't violate fair labor and non-discrimination laws. That gives employers a lot of legal leeway and, especially in a bad economy, a lot of economic leverage to demand that employees give up control of their lives, off the job as well as on it. That's not ''unconstitutional,'' but it's also not a good idea.

Q: What are your concerns with these policies?

A: Refusing to hire people for reasons unrelated to job performance is unfair and often prevents the company from hiring the best qualified person. And a completely independent concern is how these policies are enforced: Are we going to put up with employers monitoring their employees' behavior through electronic means? Tailing them with private detectives? This also leaves employees susceptible to ''outing'' by fellow employees who seek some advantage for themselves or just want to get back at someone for personal reasons. That's not a productive way to choose a workforce. In a challenging economy, you may not have the option of choosing to work somewhere else.

Q: How are these policies different from generally accepted policies that ban smoking on company grounds? Why is one policy more acceptable than the other?

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