Labor: Lifestyle discrimination laws are becoming increasingly prevalent

In-house counsel must be aware of the risks in regulating off-duty employee conduct.

Employers in the United States are by now quite familiar with Title VII and the other laws that prevent discrimination in the workplace on the basis of race, gender, religion, national origin, age, disability and other protected factors. But businesses may not know that many states also have statutes preventing employers from taking action against employees based on their off-duty conduct. These so-called “lifestyle discrimination” laws are becoming more prevalent, and employers should examine their policies and practices to ensure that they are in compliance with these often-overlooked statutes.

That employers would want to make employment decisions based on an employee’s off-duty conduct is understandable. The principal basis for such decisions is, unsurprisingly, economic. The vast majority of U.S. employers provide healthcare benefits to their employees. Employees who engage in certain risky activities off-the-job— such as smoking and drinking alcohol— are more likely to suffer illnesses as a result of these activities and, in turn, to require more medical treatment, which increases the employer’s health-care costs. Refusing to hire or terminating such employees helps curb the ever-rising expense borne by employers that provide health benefits. Furthermore, certain employers— particularly non-profit organizations and other organizations that focus on a particular mission— may be inclined to recruit and retain employees who “fit in” to the organization’s culture and behave in a manner that supports its goals. But these employer interests are at odds with an employee’s reasonable expectation that what he does on his own time is his own business, so long as the conduct is not unlawful.

author image

Christine Burke

Christine Burke's practice includes representing employers in litigation before federal and state courts, and counseling clients on a variety of employment and labor law issues....

Bio and more articles

author image

Barbara Roth

Barbara Roth is a partner at Hogan Lovells. She represents management exclusively in all types of employment litigation and advises clients on...

Bio and more articles

Join the Conversation

Advertisement. Closing in 15 seconds.