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Employment Law: Negotiating Disability, Smoking, Lookism Discrimination Issues

I have been teaching for the American Management Association (AMA) for 27 years. One of my key courses is Employment Law along with Negotiation. On the surface, one might think of employment law as boring, but in actuality employment law is exciting and dynamic. I do my best to bring this dynamism to the teaching of this course.

Negotiation plays a major role in all aspects of employment laws. One finds negotiation in creating employments laws, regulations, hiring practices, conflicts, and departures.

For example, during the last teaching of this course, we had an animated discussion of employers mandating COVID-19 vaccinations. The overall conclusion was “yes” with certain exceptions. Most folks had forgotten that public schools have been requiring up to 12 times of vaccinations before entering. These vaccinations even included mumps and measles, let along polio and diphtheria.

Of course there are vaccination exceptions such as health conditions or religious concerns.

I used skill practices, roleplays, pictures, court cases, examples and quizzes to make the course exciting.

This blog entry will focus on several employment law questions that are posed in a quiz to participants. Often there is no set answer to these questions, but instead the questions provoke an animated discussion.

Question #1: What percentage of Social Security Disability claims are approved upon appeal?

Response: Most workshop participants had no idea about this appeals process. They guessed a very low number thinking that the process was all within one agency. They did not quite realize the independence of the Administrative Law Judges (ALJ).

In 2016, about 35.4 percent of all Social Security disability benefits claims were approved at the initial application stage, also called the initial adjudicative stage. This means that just about 65 percent of applicants did not receive awards right out of the gate. Not everyone appeals their initial denial, as some people may realize their claim was a long shot, while others are unsure of their right to appeal or the appeals process. This is only one of many reasons why you should always consult with a disability appeals law firm.

Those that do wish to appeal will request a reconsideration of their application. At the reconsideration stage in 2016, 41,139 awards resulted from 445,260 requests, meaning only 9.2 percent of reconsiderations were successful. The success rate is often low at this stage of the appeals process because your claim is being reviewed by the same agency that denied your claim in the first place. Even though a different examiner will handle the reconsideration, the likelihood is low that they will overturn the denial unless the initial examiner made an obvious error.

One of the most successful stages of the appeals process is the ALJ hearing. The same year as above, 12,535 decisions were made at ALJ disability hearings, with 5,826 approvals, which comes out to an approval rate of 46.5 percent. While the number of hearings is not as high as reconsiderations, a higher percentage of appellants are successful.

Fewer people still decide to continue pursuing disability benefits after an ALJ hearing and with varying success. Statistics indicate that the Appeals Council approves only 13 percent of cases reviewed, while those who file lawsuits in federal district court may have up to a 40 percent chance of prevailing.”

Question #2: Can hirers ask whether the applicant is a smoker and then exclude them?

Response: Most training respondents responded yes, considering where the US is on the issue of smoking with the health consequences. They also mentioned the productivity issue thinking that smokers take more breaks. They even noted what seems to be a bias in the hiring process that smokers hire smokers.

While smokers are not a protected class under federal anti-discrimination laws, statutes in more than half the states and the District of Columbia would potentially prohibit implementation of a policy against hiring smokers.

Bans on workplace smoking are nothing new. In 1986, two studies linked exposure to second-hand smoke to lung cancer and respiratory illnesses. At that point, complete bans on workplace smoking were rare, but by 2010, dozens of laws prohibited smoking in indoor workplaces. By 2012, a number of hospitals, universities, and other businesses had taken the next step and instituted no-nicotine hiring policies.

Right now, 29 states and the District of Columbia have laws which provide smokers some level of protection. Many prevent employers from employment discrimination based on lawful, off-duty conduct, which would include smoking cigarettes. In these states, while an employer cannot refuse to hire an employee solely because the employee is a smoker, there may be exceptions. For example, some of the statutes only apply to employers with a certain number of employees, or to public employers. Many statutes also have exemptions where smoking would pose a safety risk to the employee or the workplace (e.g., volatile chemicals on the premises), where there is a bona fide occupational requirement or qualification that would justify a ban (e.g., employees who need to be physically fit to do their job), or where there is a rational basis for a ban.”

This is another issue which on the surface seems to be clear, but becomes muddy when the entire picture is examined. If a ban on hiring smokers is allowed, what about other unhealthy habits or life decisions? Is the research clear that smoking affects job performance?

U-Haul and the government of Dayton, Ohio have outright bans.

At this date, no one has argued successfully that the American Disabilities Act applies to this issue.

Question #3: Are there jurisdictions that have made lookism part of their discrimination laws?

Response: Most workshop participants believed that lookism was not part of any discrimination laws.

In actuality, lookism may be the #1 most prevalent type of discrimination. Lots of studies have verified this - some even discussing lookism and babies. Others outline even in grade schools how so-called beautiful children receive higher grades.

Some are quick to declare the old quote that beauty is in the eyes of the beholder. The results somewhat debunks that myth. Beauty is cultural. Here in the US, beauty usually involves a face being symmetrical. A male’s beauty height is usually from 5’9” to 6’4”. Some research has connected salary raises in relationship to each inch over six feet.

More symmetrical faces are perceived as more attractive in both males and females, although facial symmetry plays a larger role in judgments of attractiveness concerning female faces. Also, studies have shown that nearly symmetrical faces are considered highly attractive as compared to asymmetrical ones.”

“Taller people also have higher average earnings. For both men and women, the relationship is striking: a one-inch increase in height is associated on average with a 1.4 percent to 2.9 percent increase in weekly earnings, and a 1.0 percent to 2.3 percent increase in average hourly earnings.”

Appearance discrimination is embedded in the federal Equal Opportunities Act. Physical features discrimination is when someone discriminates against you by treating you unfairly or bullying you, because of a physical feature that you have.

Under the Equal Opportunity Act, physical features means:

· height

· weight

· size

· shape

· facial features

· hair

· birthmarks

Appearance discrimination is surely a changing landscape. Some cities have specific laws banning discrimination based on “physical appearances.” These cities include San Francisco, Washington, DC, Binghamton, NY, Santa Cruz, CA, Madison, WI, and Urbana, IL. This is interesting to note since it is estimated that more than 30% of all college graduates have tattoos and that 1/3 (160 million) Americans are overweight or obese.


Employment law is dynamic. Federal, state, and local governments are constantly changing their laws and often are not updating their old laws. One of the best ways to keep up to date is using the website of SHRM. (Society of Human Resources Management).


American Management Association

Develop Skills in the Critical Subject Areas Needed for Success. Join an Online Seminar. Tailored Training Solutions for Individuals and Organizations SHRM - The Voice of All Things Work

Now is a pivotal time for the workplace and workforce as critical issues affecting society impact work. The Society for Human Resource Management (SHRM).

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