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This is kind of a tricky question, or situation rather. (TLDR-skip to bold)

I am a clerk at a retail establishment that sales cigarettes, as well as food and home products. My main job duty is cashier. In between customers I also stock and do other retail related tasks.

The cigarettes are in a cabinet that requires a key to open. When I first started working there a few months ago the key for the cabinet was on a set of keys which had other keys for retail displays like cell phones as well. Since then there has been a change in management. And one of the changes was that only key-holders and managers can open the cigarette cabinet.

This change has been very inconvenient for customers and the store has lost many sales over people not wanting to wait for a key holder to come open the cabinet. It's very frustrating for me to stand there and wait for them to come up especially since customers generally ask for cigarettes after I have scanned the items so it's all wait time. I have to page them on the in store phone and wait for them to finish what they are doing in the back of the store and come up and then the customer has to repeat what they wanted again.

I've continually complained about the change to the assistant manager and lead key holder but they always kind of change the subject. I asked the assistant manager one day if the change was because of missing cigarettes and he said that wasn't it and alluded to knowing what it was but wouldn't say. At that point I began to realize it was probably because I am a cigarette smoker. I wasn't sure though. Then a few days later talking to another employee and I found out that he and I are the only regular clerks without any key-holder status and he also smokes and came to the same conclusion as me independently.

I've never stolen cigarettes or had any mishaps with cigarettes or lost any cigarettes or anything at this job or any other. Now unless the other guy has had some shadiness with the cigarettes or something in his past and they are just using this general rule to keep him from using it but it's affecting me then I could kind of understand but nobody has told me anything along the lines that it's because of the other employee. I think I need to talk to that guy a little bit more.

Is it discrimination if they have revoked me of a responsibility because I smoke?

If that is the reason for the change it doesn't make any sense to me. They sell all kinds of things that I use. I'm more addicted to food than cigarettes. Why do they let me stock food?

I'm nearly 30, I'm an adult, I'm a serious man. Why would they regard me as a thief. I've never felt so demoralized and I was previously a dishwasher. What's odd about this whole situation is I rarely interact with the manager that has been making these changes. So it's like these invisible webs pulling at me from a distance.

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  • 1
    In what jurisdiction?
    – cpast
    Sep 23, 2015 at 5:32
  • 1
    Arkansas, United States
    – fie
    Sep 23, 2015 at 5:44
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    I see there are smoker protection laws in some states but it seems to concern hiring not workplace policies. en.wikipedia.org/wiki/Smoker_Protection_Law
    – fie
    Sep 23, 2015 at 5:45
  • @fie That's what I was wondering: regardless of if a smoker is a protected class, is this even discrimination? It seems like changing the key status of a particular key isn't really discrimination, that is, unless all the other clerks were suddenly promoted to the keyholder position at the same time as the change in key policy.
    – mchid
    Aug 19 at 18:24

2 Answers 2

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It may be discrimination; not all discrimination is illegal.

Details vary by jurisdiction, for example discrimination on the following bases is illegal in Australia:

  • race
  • colour
  • sex
  • sexual preference
  • age
  • physical or mental disability
  • marital status
  • family or carer’s responsibilities
  • pregnancy
  • religion
  • political opinion
  • national extraction
  • social origin

Tobacco use or non-use doesn't make the list.

That's the legal position; if you want advice on how to handle the workplace stuff post your question on the Workplace Stack Exchange.

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  • 3
    I guess this is about the best answer I could expect on here. Nothing ever came about because of it. And later I found out that I signed something saying that if I have any legal issues I have to go through an arbitrator which will cost me $200 and will be refunded if I "win." So yeaaahhhh. Thanks for the advice though.
    – fie
    Nov 11, 2015 at 5:38
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Discrimination on the basis of smoker/non-smoker status is not illegal.

Wikipedia has a good summary on employment discrimination in the US:

Under Federal law, employers generally cannot discriminate against employees on the basis of:

  • Race
  • Sex
  • Pregnancy
  • Religion
  • National origin
  • Disability (physical or mental, including HIV status)
  • Age (for workers over 40)
  • Military service or affiliation
  • Bankruptcy or bad debts
  • Genetic information
  • Citizenship status (for citizens, permanent residents, temporary residents, refugees, and asylees)

While there are some exceptions, smoker status is not one of them.

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  • And even those "exceptions" are usually in the style that discrimination even on the basis of items on that list can be legal under specific conditions (bona fide occupational qualification), for example you can discriminate on race and gender if you are looking for an actor to play the role of a historical person, and you can discriminate on religion if you are a church hiring a priest, and so on.
    – vsz
    Mar 26, 2021 at 6:37

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