Refusing jobs to smokers may not be discrimination, says the Human Rights Commission.

The view mimics a statement by the European Commission, which said on the weekend that employers may legally be able to shun smokers because doing so was not covered by European anti-discrimination legislation.

The Human Rights Commission said yesterday that New Zealand employers could also potentially advertise for non-smokers only, without violating the Human Rights Act.

"There's no prohibited ground under the act relating to smoking," said spokeswoman Carolyne Jurriaans.

Smoking, as an addiction, could potentially be considered a disability, but this had not been tested in court, she said.

The Department of Labour said smoking also fell outside the Employment Relations Act.

"The act does not explicitly mention smoking as a prohibitive ground of discrimination," said employment relations policy manager Shane Kinley.

Anti-smoking lobby group Ash said it could understand employers, particularly in health, wanting non-smoking employees, but opposed targeted hiring of non-smokers.

"Twenty-five per cent of the population in New Zealand smokes and to simply say that none of those people make good employees would be a ridiculous notion," said director Becky Freeman.

She said Ash believed that banning smoking in workplaces and getting rid of tobacco advertising were better approaches.

"Those are the kind of measures that we think are more important and that will bring smoking rates down, which will be good for everyone, including employers."

The Public Services Association (PSA) union supported employers adopting policies to improve employees' health, but not "discriminating against smokers' ability to gain jobs".

"Good employers are interested in whether prospective employees have the skills and experience to do the job well, not whether the person is a smoker," said national secretary Brenda Pilott.

But in the United States, some firms now refuse to employ smokers and others have fired employees who failed to meet company ultimatums to quit smoking.

A report last year said if such firms survived legal challenges, it would encourage a growing trend.

In New Zealand, the PSA said the issue had not been raised formally to its knowledge, either by employers or employees.

In 2004, Hamilton company Gallagher Group caused outrage when it announced it wanted to hire only non-smokers because they took fewer breaks.

The Council for Civil Liberties called the approach draconian, saying it could set a precedent to discriminate against other lifestyle choices by employees.

The previous year, South Island health agency Crown Public Health refused to include smokers in its 80-strong workforce.


JOB DISCRIMINATION

* The Human Rights Act means nobody can be refused a job on grounds including disability, sexual orientation and race.

* The Act does not explicitly state that it is against the law to use smoking as a basis for discrimination.