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Weight Bias

Weight Bias: The Next Civil Rights Issue?

As a war against obesity heats up, some Americans are fighting back, and demanding equal rights for people of all shapes and sizes.

From the Rights Stuff Newsletter, Summer 2010

Overview

Discrimination against people who are overweight is as common as racial discrimination, according to a study at Yale University published in 2008 in the International Journal of Obesity. For those who would challenge such discrimination, the study confirmed what many say has long been abundantly clear: bias against people who are considered fat is pervasive — in employment, education, public accommodations, and virtually all aspects of our society.

Those who are overweight earn less than non-overweight people in comparable positions, are less likely to be hired in the first place or considered for a promotion, and are often viewed as lazy or lacking in self-discipline by employers and coworkers. Over a 40-year career, a worker who is overweight is likely to earn $100,000 less than a person who is thinner according to another study, and women are stigmatized and financially penalized more than men for extra pounds. In the Yale study, women were twice as likely as men to report that they had been discriminated against in the workplace because of their size.

There is no federal law that broadly prohibits employers from discriminating based on weight, and only the state of Michigan and six U.S. cities make it illegal to fire someone, or not hire them, because they are fat.

In education, stereotypes and prejudice based on weight are also prevalent, with teachers and other students making life a lot tougher for large kids, beginning in preschool. Teachers have lower expectations for overweight students, according to several studies, and other kids see them as ugly, lazy, and stupid — three out of five of the heaviest kids report such teasing. It becomes harder for kids who are victimized in this way to succeed academically, and when they do, weight bias remains a barrier. Apparently, college admissions officers don't like overweight kids either, or don't consider them likely to succeed in academia. Obese students are much less likely to be accepted for admission to college, despite academic performance equivalent to their thinner peers.

In public accommodations, finding a place where one can sit — in a restaurant, movie theater, or any mode of public transportation — is a frequent challenge for the larger individual, particularly with airline seating which those who aren't overweight may find cramped. Though activists complained loudly when United Airlines announced in 2009 that it would require obese passengers to pay for two seats if they couldn't fit in one seat, and an open seat wasn't available, the policy was already in place at other major airlines.

While most would agree that America has at least made progress in ending discrimination based on race, gender and other characteristics protected under federal and state laws, the discrimination people who are overweight experience every day has in fact become worse over the past few years, some evidence suggests. The Yale study found that in 1995-96, seven percent of U.S. adults said they had experienced weight discrimination. Ten years later in 2006, that percentage had increased to 12 percent. The increase in discrimination may be surprising, given that Americans are fatter than ever: in fact, more than 60 percent of us are considered overweight, and more than one-quarter of us (26.9 percent nationally) are considered obese. As a results of what has been called an obesity epidemic, some health experts have declared a virtual war on fat, and responded to what they see as a health crisis by encouraging everyone to lose weight, with the help of employer-sponsored wellness programs and an extensive media campaign.

But while such efforts may be well-intentioned, they may also lead to the further stigmatization of people who are overweight, and to even more discrimination some fear. Wait a minute, they would say. Yes, it can be unhealthy to be fat. But thin people can be unhealthy, too, and people can be both fat and healthy. Public relations campaigns that focus on fat are wrong-headed, some argue, and likely to be counterproductive, since 90 percent of dieters ultimately regain the weight they lost.

Welcome to the Fat Acceptance Movement, which champions the rights of people of all sizes and sees weight discrimination as a civil rights issue. As some in the gay community have reclaimed the word, "queer," and transformed what had been a discriminatory slur, organizations that would fight against weight bias have reclaimed and embraced the word, "fat." It is not necessarily an insult — not to the California-based National Association for the Advancement of Fat Acceptance (NAAFA) which has fought to end size discrimination since 1969. Another organization, the New York-based Council on Weight and Size Discrimination, also fights to end what it calls "sizism" and "weight bigotry," denounces the media's portrayal of "fat people," and promotes equal treatment for all people, no matter what their weight. It argues that bias against weight is no different than prejudice based on color, gender, religion, disability, or sexual orientation, and in language reminiscent of the civil rights movement, speaks of its goal of "weight diversity."

But there is at least one difference between weight bias and other forms of discrimination, one that both organizations seek to end: weight discrimination is generally not illegal. There is no federal law that broadly prohibits employers from discriminating based on weight, and only the state of Michigan and six U.S. cities make it illegal to fire someone, or not hire them, because they are fat. The cities that include weight discrimination (or in some cases, a broader category of "physical appearance") as a protected class include Santa Cruz, CA; San Francisco, CA; Urbana, IL; Madison, WI; Binghamton, NY; and Washington, D.C. (see Weight Bias Laws Elsewhere).

Another difference is that while derogatory comments about race may be considered unacceptable and a racial slur may jeopardize or end a career, hurtful and demeaning comments about weight are not subject to the same censure.

Many who would object to offensive stereotypes and take umbrage over insulting comments about race, gender, or disability, feel it's OK to make fun of fat people and characterize them in unflattering terms. "They think that's OK. It's sort of a fair-game mentality," says Yvonne Shorts Lind, Founder and President of Twin Cities EEO Consulting, P. C., who advises public and private employers on a variety of legal issues impacting their work force. Lind will be conducting a workshop at the Minnesota Department of Human Rights annual Human Rights Day conference on Friday, Dec. 3. The workshop is titled, "Tolerable Cruelty? Obesity in the Workplace."

It may be considered tolerable because many view obesity not as a personal characteristic, but as a personal defect — a character flaw for which they may deserve scorn or ridicule, since being overweight is really "their own fault," and something they should be able to change. That misperception came to Lind's attention a couple of years ago, when she was guest lecturer at St. Thomas University and teaching a class on the Americans with Disabilities Act (ADA). She presented a scenario involving an employee with a heart condition, and asked what steps an employer might need to take in determining whether to provide a reasonable accommodation. One of the first students to respond said he would need to know if the heart condition was genetic, or the result of diet. Why, Lind asked. "And he said 'well, if her heart condition is based on her diet, then it's really her own fault. And I don't think we should have to do anything.'"

Why Employers — and Others — Discriminate

Many view obesity not as a personal characteristic, but as a personal defect — a character flaw for which they may deserve scorn or ridicule, since being overweight is really "their own fault," and something they should be able to change.

The opinion that an overweight person is somehow defective — and that their weight provides ample proof of other negative qualities such as emotional instability, laziness and lack of self discipline — may lead some employers and others to believe that prejudice against hiring those who are overweight is justified. In any case, managers and supervisors do not seem overly reluctant to admit their anti-fat biases. When asked in a 2010 poll by Business and Legal Reports (BLR) if someone's weight had ever influenced a decision to hire him or her, 26 percent said yes, and another 28 percent admitted that weight might have influenced their hiring decision unconsciously. In a survey of human resource professionals in 2007 published in Personnel Today magazine, 93 percent said they would prefer to hire a thin person instead of a fat one.

In fact, there is little evidence to support most of these stereotypes, and recent evidence challenges these commonly held beliefs. A Michigan State University study in 2008 by associate professor Mark Roehling found that overweight and obese adults are not significantly less conscientious or less emotionally stable than their thinner counterparts. Roehling studied the relationship between body weight and personality attributes for about 3,500 adults, and concluded that commonly held stereotypes about weight and character traits were largely fiction.

But whether or not employers believe overweight people are lazy or less stable, they may worry that customers may hold negative attitudes about fat employees and be inclined to take their business elsewhere. In a pending case in San Francisco where weight discrimination in employment is illegal, a server was fired at a health-oriented food establishment after a customer criticized the business online and wondered why the owner had "a fat girl working at a health food store." In a precedent-setting case in the same city shortly after the law was passed, an aerobics instructor was rejected by the Jazzercise franchise, allegedly because her body shape did not project the right, fit-and-trim image.

When weight discrimination is — or can be — illegal

Although weight discrimination isn't against the law, disability discrimination violates the ADA and state laws like the Minnesota Human Rights Act. When obesity rises to the level of a disability, the employee is protected from discrimination and may be entitled to reasonable accommodation under state and federal disability laws.

In 2006, a male systems analyst employed at a company in Eden Prairie filed a charge with the Minnesota Department of Human Rights, alleging that the company fired him despite good performance, because he was morbidly obese. He was allegedly terminated shortly after a customer complained and the company's president told his manager, "Get rid of that fat guy. We don't need anyone that fat working here." The fired employee argued that his morbid obesity constituted a disability and that the company had violated the Human Rights Act by engaging in disability discrimination. The Department of Human Rights found probable cause to believe the Act had been violated, and the employee and the company eventually agreed to a private settlement.

When obesity rises to the level of a disability, the employee is protected from discrimination and may be entitled to reasonable accommodation under the state and federal disability laws.

The courts and the EEOC have long considered "morbid obesity" to be covered under the ADA, which had defined "disability" as a physical or mental impairment that substantially limits one or more major life activities. (A person is considered morbidly obese when he or she is 50 to 100 percent, or 100 pounds, above his or her ideal body weight, or has more than 39% body fat.) But obesity had usually not met the definition, except in unusual circumstances, as when the obesity resulted from another physiological impairment.

But in 2008 the ADA was amended, in part because of Supreme Court decisions that had interpreted the definition of disability narrowly. The new amendments appear to make it likelier that obesity, not just morbid obesity, will be protected under the ADA. "Clearly with the new amendments, the whole intent was to make it broader, and many more individuals are now considered disabled under the ADA because it's so much broader," says Lind.

Then there is the issue of who is "perceived as disabled." Even before the new rules, an individual could be considered disabled under the ADA if his employer perceived that he or she had a disability that substantially limited one or more major life activities. These "perceived as disabled" cases may also be easier to prove under new amendments. "The statute has certainly broadened the scope of what is a perceived disability, and it's also actually broadened what is considered an actual disability," says Laurie Vasichek, Senior Trial Attorney for the Equal Employment Opportunity Commission (EEOC). "I think generally, it is simply going to be easier to prove disability under the ADA as amended."

If an employer doesn't want to hire someone who is overweight, because the employer believes that person will have a hard time going up and down stairs, or standing for long periods of time, or is likely to be absent from work more than other employees, that does mean the employer perceives the overweight person as disabled, and that individual may have a claim under the new ADA rules? "Potentially," says Vasichek. "It's going to depend on what the employer's perception is." If an employer thinks people who are fat are lazy or lacking self-discipline, that stereotype would probably not give rise to a disability claim. "That's not perceiving someone as having a disability. That's more just carrying biases that are not disability related," says Vasichek.

"I think in the disability world, it's hard to know whether you're being discriminated against because of the disability — if the disability is apparent — or because of the weight."

But a claim could result "if the employer perceives a person as having an impairment and takes action based upon that perceived impairment," she says. "So the question is going to be, does the employer perceive the weight as an impairment? Let's say the employer does perceive the person as having an impairment, or perceives that because the person is overweight, they are naturally going to be subject to Type II Diabetes or something of that nature. I think they could make an ADA claim in those sort of circumstances."

An employee who encounters weight discrimination at work may also be able to make a claim if the weight results from an underlying condition that would be considered a disability. The condition could be physical or mental, suggests Kathryn Engdahl, an attorney at Metcalf, Kaspari, Engdahl & Lazarus, P.A. in Minneapolis, whose practice includes representing plaintiffs in age, gender, disability and other discrimination cases. "If you could show that a person is a compulsive eater, along the lines of OCD, and you had some sort of diagnosis, could that aside from the weight itself be considered a disability?" she asks. The answer isn't clear, but one thing is: the new ADA rules will give rise to an increasing number of claims, and such issues will inevitably come before the courts in the next few years.

The connection between weight and disability is one that advocates for "fat acceptance" might approach with some caution, since beliefs about that relationship can be both a boon and a bane. The idea that a person who is overweight is necessarily disabled or less healthy than a thin person is a stereotype that leads to discrimination. Yet, unless and until weight discrimination per se becomes illegal in more jurisdictions, disability and "perceived as disabled" claims will continue to be a major tool in the fight for size equality.

For those in the disability community, weight is increasingly an issue. "Weight discrimination is very prevalent in the disability community," says Margot Imdieke Cross, Accessibility Specialist for the Minnesota Council on Disability. "But I think in the disability world, it's hard to know whether you're being discriminated against because of the disability — if the disability is apparent — or because of the weight." She finds that the issue is coming up more often, and predicts that laws and building codes will need to change to better accommodate people who are overweight. "We are having to take a hard look at things like the building code and accessibility requirements, to see what the future might require, what changes might be around the corner," she says.

Weight and Gender

It is also illegal for an employer to have different standards for women than for men with respect to size or fitness, and evidence suggests that many employers do, just as society appears to judge female appearance more critically. "Women are supposed to be fit and trim, you know," observes Engdahl. "There is a real double standard when it comes to weight and gender, and there are clearly places where that standard is enforced." In the 2008 Yale University Study, women were twice as likely as men to say they had experienced weight discrimination. Among those who were obese, 45 percent of women said they had experienced discrimination because of their weight, as compared to 28 percent of obese men. If overweight men are tolerated but comparably overweight women are not, a claim of gender discrimination could be made under the Minnesota Human Rights Act or Title VII of the Civil Rights Act of 1964.

"Women are supposed to be fit and trim... there is a real double standard when it comes to weight and gender, and there are clearly places where that standard is enforced."

It is also possible that firing, refusing to hire or other practices penalizing employees because of their weight could result in a claim of discrimination based on another protected characteristic, such as age. "Back in the day when the flight attendants had weight restrictions and they had to maintain, let's say, a 125 pound weight, the argument was that such a requirement had a disparate impact based on age, because as women age and as men age, they become heavier, says Vasichek. She suggests that employers who might be inclined to exclude some workers because of their weight, believing such policies are not illegal, should consider when they might disproportionately impact another protected class. "When they are saying they are going to exclude these people because of their weight, are they really excluding the older worker? Or are they really excluding individuals with disabilities? Even if your policy is neutral, you have to consider whether it has a disparate impact."

Employers should also be careful in how they implement wellness programs designed to encourage employees to get fit, to ensure that such programs are truly voluntary and do not penalize those who choose to not participate or are unable to successfully achieve a fitness goal, Vasichek suggests. If a program's incentive is so great that an employee is essentially penalized for not participating, such a program could raise a number of thorny legal issues. If data is being collected on an individual's fitness level, who has access to the data, and how is it going to be used? If there is pressure to participate and health or wellness data is collected that is unrelated to the requirements of a job, could the collection of such data constitute a mandatory — and perhaps illegal — medical exam? "Clearly employers have had a big push, with the rising cost of healthcare, to get everyone healthy," says Lind. "But it should be an incentive program versus a penalty. And, people would have to be careful not to misuse information gained."

What's next

It may be ironic that what some argue is among the most prevalent forms of discrimination — and potentially affects the more than 60 percent of us who are overweight — is legal almost everywhere, unless another discrimination claim such as disability or gender can be raised. Those who are working to enact laws against weight bias fear that our increased focus on America's ever-expanding waistlines may sabotage their fight for size equality, and subject them to further discrimination. An obesity epidemic may demand attention and resources, but is no excuse for intolerance and injustice, advocates say.

But as the war on obesity goes on, and Americans keep getting fatter and trying desperately to do something about it, it appears unlikely weight or size will become a protected characteristic in many cities or states, any time soon. The fight will continue to be, and the victories will come, on the edges of the issue, as advocates for size equality challenge discrimination based on disability, gender, or other characteristics that are protected. Weight discrimination will continued to be what the Yale study author Rebecca Puhl has described as a "socially acceptable injustice," penalizing women more than men, but making life harder and less fair for virtually everyone who is overweight.

Perhaps surprisingly, another Yale study published in 2010 found that a majority of Americans would support legislation that would prohibit weight discrimination in the U.S. Most people are opposed to discriminatory practices such as refusing to hire, withholding promotions, paying lower wages, or unjustly terminating obese employees, this national survey found.

Perhaps not surprisingly, women were more likely than men to say weight discrimination ought to be illegal. While less than half (47 percent) of men said they would support adding "body weight" as a protected category to existing Civil Rights law, 61 percent of women thought it was a good idea. In answering a related question, 65 percent of men said they would support laws to protect obese employees in the workplace, while 81 percent of women wanted to see such protection.

If the data is indicative, most Americans want to lose weight, prefer thinness to excess pounds in themselves and others, but also want a society that treats people who are obese or overweight more fairly in the workplace and elsewhere. Those who are most likely to experience weight bias — who are plus-sized in a society where gender expectations say you're worth more, and will earn more, if you are size two — just want it more.

Note: The information in this section appeared in the Summer 2010 edition of the Department of Human Rights newsletter, The Rights Stuff. The newsletter includes additional material related to this topic.