A recently emerging issue in the arena of American employment law is that of whether employers may discriminate against their workers on the basis of the workers' lifestyles or off-work conduct. This issue includes discrimination against employees because they are overweight or because they smoke. It also encompasses employer regulation of a number of other off-duty activities and conduct, including the following:

• Moonlighting
• Personal Relationships
• Political Activities
• Leisure Activities
• Criminal Activity

Federal antidiscrimination laws do not protect private sector employees from discrimination by employers with respect to lifestyle. In recent years, however, several states have passed broad-sweeping litigation forbidding employers from discriminating against their employees on the basis of a number of "lifestyle" issues. More legislation of this type may be forthcoming. Furthermore, existing state privacy laws may restrict employers' rights to uncover information about the private conduct that they may wish to use as the basis for employment decisions. This article summarizes the current state employment practices laws with respect to employers' rights to take action against employees based upon their off-work conduct or lifestyles.

State Fair Employment Practices Laws

A few states have passed specific laws forbidding any type of discrimination by employers based upon employees' off-duty conduct. Colorado law, for example, prevents employers from taking adverse action against employees because they engage in lawful activity while off-duty, unless the restriction:

• relates to a bona fide occupational qualification,
• is reasonably related to the employment activity, or
• is necessary to avoid a conflict of interest.

The Colorado courts have ruled that this restriction forbids employers from discriminating against their employees on the basis of sexual orientation. New York and North Dakota have similar off-duty conduct laws. New York's law specifically prohibits employment discrimination based upon the following types of lawful off-duty conduct:

• legal recreational activities
• consumption of legal products
• political activities
• membership in a union

Although it appeared that California had passed a law forbidding employers from discriminating against employees based upon their "lawful conduct occurring during non-working hours away from the employer's premises," courts have ruled that this provision did not create a private right of action for employees to protest such treatment.

A much larger number of states have specifically forbidden employers from discriminating against employees based upon their off-duty use of legal substances, such as tobacco.

Copyright 2010 LexisNexis, a division of Reed Elsevier Inc.