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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.

Overview

Discrimination against people who are overweight is as common as racial discrimination, according to a study at Yale University published 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.

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 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 result 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."

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.

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. 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.

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.

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.

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."

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 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."

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.

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.