Weight and Discrimination: Legal Issues

Published Date: 03 Apr 2018

• Ther L. Richardson

Abstract

Discrimination against overweight and obese people has existed for millennia but it is just in recent decades that discrimination against the overweight has been seen as a crime and research has begun in this field. Despite some research going back as far as the 1940’s the majority of research did not start until almost the 1970’s. With the pace that American law is driven there has not been considerable progress made to this point. Current research is being conducted to stem both the lack of progress and make inroads of societal progress. Current understanding and legislation may empower an entire class of world citizens, and change perception of weight discrimination and obesity while leveling the employment and earnings playing field.

Weight and Discrimination: Legal Issues in Weight Discrimination

According to the Centers for Disease Control (CDC) between 2009 and 2010 more than 35 percent of adults across the U.S. and Canada were considered obese, (McGuire, 2011, pp. 368-369) based on the BMI. The Body Mass Index or BMI is a scale that assigns a number value that is calculated from a person's weight and height. BMI is used to provide an indicator of body fat ratio or level and is used by the healthcare industry to screen people for weight categories.

While the rates of obesity in adults has been slowing over the past decade or so, the world population has become more media centric and the idea of the ideal body type has certainly been affected by the mass media and the influence of Hollywood movies, sports and television. This change in the perception of the ideal body image has almost certainly affected the rates and types of discrimination as well.

In the workplace, obese workers are considered lazy, incompetent, and lacking self-control. While women’s wages are lower on average then men’s, obese women’s wages are even more out of proportion. It has also been shown that many human resource representatives do not even know it is illegal to not interview, or decline to hire someone based on their weight. As ideal body image changes to leaner more fit athletic and “underwear model” looking individuals the more overweight and obese individuals pale in comparison. The contrast effect then sets up and impossible scenario where the obese worker or applicant can never meet the mind’s eye image of the ideal employee.

Perception of weight discrimination and obesity

Sutin and Terracciano (2013) conducted research on perceived weight discrimination and obesity. They examined whether weight discrimination is associated with risk of becoming obese by follow-up survey among those not obese at baseline, and to test whether weight discrimination is associated with risk of remaining obese at follow-up among those already obese at baseline (Sutin & Terracciano, 2013). This research was conducted through both face to face interviews and a survey returned by mail to the Health and Retirement Study, which is a nationally representative longitudinal survey conducted by the University of Michigan. They found that weight discrimination was reported by those that became obese during the time between the baseline and follow-up interviews, for the most part among participants who weren’t obese at the time of the baseline measurements.

Those subjects who reported that they experienced discrimination based on their weight were over three times more likely to remain obese at follow-up instead of dropping below the obesity threshold on the Body Mass Index (BMI) than those who did not experience such discrimination. Of the sample that was normal weight at baseline, there was not enough data for the analysis, but of the 14 participants in the normal weight category who reported weight discrimination in their follow-up, none became obese as described by the BMI (Sutin & Terracciano, 2013).

Sutin and Terracciano (2013) remark that “body weight is a highly visible, personal characteristic that can evoke strong stereotypes and strong reactions from others,” and easily contribute to stereotyping and discrimination as well. Weight discrimination and harassment are also thought to be associated with behaviors which increase the risk of weight gain, these behaviors include excessive food intake (binge eating) and decreased physical inactivity (Friedman & Puhl, 2012, p. 2, 3). Obese persons who feel discriminated against may tend to avoid situations where there weight would make them stand out, for instance going out dancing, and thus gaining the benefit of the exercise that might be gained by that activity. People that feel stigmatized tend to feel less confident and able to engage in physical activity and thus avoid not only exercise, but also social activity that could lead to physical activity and exercise such as line dancing or other forms of social activities like sports, and games. Weight bias can have a significant impact on social, economic, psychological and physical health. Social and economic consequences include social rejection, poor quality of relationships (Friedman & Puhl, 2012, p. 2, 3).

Current legal protections in the united states and results of litigation

Katz and Lavan (2008) conducted research on limited legal protections of obese employees as a class, and lawsuits against employers who took adverse employment actions based on obesity against obese employees and former employees who have begun to prevail in lawsuits against those employers. They analyzed of a random sample of 80 cases to attempt to identify factors that increase an obese plaintiff's likelihood of success and found that an employee in the private sector, particularly a non-professional employee, has a significantly greater likelihood of winning than do others. Additionally, they found that an unemployed individual or an individual filing suit under legislation other than state discrimination laws or the Americans with Disabilities Act (ADA) has a statistically greater chance of prevailing as well.

According to Katz and Lavan (2008), because obesity is often considered a problem wherein the obese individuals are blamed for their own weight, people see obesity as an issue of personal responsibility versus a chronic condition and this may well may have a different impact on public opinions and support for anti-discrimination laws and lawsuits. There are many facets to the discrimination towards obesity that may not even be perceived by those that are being discriminated against. "For example, applicants for employment may be judged on their appearance, not just on their qualifications. Rejected candidates may not be aware of weight-related factors (Katz & Lavan, 2008)." One surprising result that was mentioned was that the discrimination against obesity is contagious. In one study cited by Katz and Lavan, " in two experiments, average-weight male job applicants were rated more negatively when seen with an overweight compared to a normal weight female." This shows that the stigmatization and discrimination can spread simply due to association. The overweight and more specifically the morbidly obese are often given the blame for their own condition.

Another impression that people hold is that of obese people being less tidy or having poor personal hygiene, this often has a lot to do with appearance. Supervisors or management may even react differently to overweight individuals, causing them to treat overweight employees differently on the job than more attractive employees (Katz & Lavan, 2008). In addition, the discrimination against obese persons is not limited to the workplace by any means, obese persons are reminded, or are made to feel "in everyday encounters with family members, peers, health care providers, and strangers that they deviate from social norms and are inferior to those who are not obese (Katz & Lavan, 2008 pg. 3)." When it comes to the current legal state, more and more it appears that Title VII (the Age Discrimination in Employment Act, 1964) and the Americans with Disabilities Act, 1990 have not been very useful to litigants either, except in cases where the litigant that is claiming discrimination was morbidly obese.

If an individual claimed that they were discriminated against but not because of an actual disability but instead because of their employer’s perception that they had a disability from being overweight when in fact they could perform the jobs assigned without impediment, then that litigant was in fact more likely to win (Katz & Lavan, 2008 pg. 3). In addition much discussion on their part about recent litigation and the ADA, Katz and Lavan (2008) stated that courts have generally viewed obesity as a voluntary condition and therefore disqualified it as a disability under ADA. They cite few cases that have held that obesity on its own constitutes a disability (Katz & Lavan, 2008 pg. 4).

Obesity and obtaining work and fair wages

Pagan & Dávila (1997) conducted a study to explore the relationship between obesity, occupational attainment, and earnings using data from the National Longitudinal Survey of Youth to investigate the occupational selection of obese individuals. They then estimated the earnings functions that accounted for the occupational attainment of the overweight. Much the same as many other researchers they found that women seemed to pay a steeper penalty than men did as men tended to migrate into employment where their weight did not play as big of a role (Pagan & Dávila, 1997). The authors did not elaborate on these types of employment other than to say service based, although the authors did at one point elude to truck drivers and movers. In all, the reported findings they said did tend to complement the existing body of work.

Their research did not seem to bring much new to the table other than the fact that they had some theories on crowding, but it did support previous theory and work mentioned. Because there is very little research so far to review each new item add to the totality of the available data. In addition, they were the only authors that eluded to the use of migration into employment where their weight did not play as big of a role in their earning potential.

Research into the efforts to pass new laws

Puhl, Heuer & Sarda (2010) conducted research assess the public support for potential legislation to prohibit weight-based discrimination against obese individuals in the United States, and to examine whether certain message frames about weight discrimination influence public support. Their participants were randomly assigned to read one of the four paragraphs that framed the topic of weight discrimination in a distinct way (or a control condition with no paragraph). Participants were then asked to indicate their level of support for six anti-discrimination laws. Participants were a national sample of 1114 participants (48% women, 52% men), with a mean age of 44.78 years (Puhl et al., 2011).

The results of their study showed that there was some support for laws that would prohibit weight-based discrimination. Gender differences were observed across experimental conditions thus indicating that “some message frames may increase support for certain laws among women, but not men. Message frames however, had no effect on support for laws with specific provisions to prohibit weight discrimination in the workplace” (Puhl et al., 2011). This suggested that the public held support for those particular legal measures was both consistent and high at approximately 65% of men and 81% of women, regardless of how the issue of weight discrimination was framed to the public (Puhl et al., 2011).

Just as most of the articles do, the authors of this article point out that weight discrimination stems from pervasive societal stigma and stereotypes that obese persons are lazy, lacking in self-discipline and are personally at fault for their inability to lose weight, and that unfortunately, weight bias takes a significant toll on emotional and physical health for those who are affected, increasing vulnerability to depression, low self-esteem, poor body image, suicidal behaviors, unhealthy eating patterns, eating disorders and avoidance of physical activity and social exclusion. One interesting comment of note is their mention that recent estimates suggest that the prevalence of weight discrimination in the United States has increased by 66% over the past decade, and is now comparable with prevalence rates of racial discrimination in America (Puhl et al., 2011). Their results have led them to conclude that women express a stronger degree of agreement than men do with idea that there should be new laws about weight discrimination and that the government should take a more active and aggressive role to protect overweight people from size/weight discrimination.

Discussion

Currently, in the United States there are little or no legal protections to prohibit discrimination against an individual based solely on body shape, size, or weight, and employers basically have the right to hire anyone they want without regard to preference to thinner and more attractive applicants. Some employers have even been found to penalize heavy employees in unfair ways. Weight-based discrimination is pervasive around the world and it is damaging and worsens health disparities for obese people, in essence creating a self-fulfilling prophecy (Puhl et al., 2011).

There was considerable agreement within the literature, with many studies concluding that weigh based discrimination does exist, it is pervasive, and it is experienced more by women than men (Puhl et al., 2011), (Pagan & Dávila, 1997), and (Katz & Lavan, 2008) for example. Many practitioners in the psychological and sociological communities’ believe that it is critical for the public health community to recognize that this type of institutionalized bias is, in fact, both a social injustice, and a public health issue. In addition many of those individuals also feel that it is past due to look long and hard legislatively, at equal protections and definitions of obesity as a syndrome.

History has demonstrated that legislation has the power to reduce institutionalized bias against stigmatized groups, thus researchers, advocacy groups and the public health community can help promote protective legislation for overweight and obese persons (Puhl et al., 2011).

Public support is going to be key in enacting any weight bias legislation, and the research findings provide a springboard to explore public attitudes toward laws that prohibit discrimination based on weight.

Because of women’s potentially increased vulnerability to weight stigmatization as compared to men in nearly all of these studies, over time they are more likely experience unfair treatment because of their weight, and are therefore they are far more supportive of legislation to combat Obesity discrimination. Some researchers such as Puhl et al., 2011, Pagan & Dávila, 1997, and Katz and Lavan, 2008have suggested that women are more vulnerable to weight discrimination than men and may experience weight discrimination at lower levels of body weight than men do. Additionally there are roles and jobs that are typically filled by men that tend to favor some amount of over-weightiness such as movers being able to handle large or bulky items.

Conclusion

In order to make inroads against this type of discrimination is education of the population, overt intolerance of the discrimination, strong advocacy in support of litigation and legislation, and a public awareness campaign, and some strong rulings to create precedence. Of course almost universally as always, more research is needed. While it is generally accepted that there is weight based discrimination, it is important that there be a solid body of work to bring it to light, and in conjunction with medical research into the causes of obesity it may be possible to determine what the leading factors in obesity, continued obesity, and combating obesity are. In addition research needs to be done into the effects of socialization on obesity. One of the experienced side effects of obesity being anti-social behavior one cannot help but to wonder what if anything would be the overall effect of purposely involving the morbidly obese in social activity that bolstered self-confidence without judgment, possibly without even focusing on weight.

References

Friedman, R., & Puhl, R. (2012). Weight Bias A Social Justice Issue A Policy Brief. 2012 Rudd Report, 2012 Rudd Report (2012), 2, 3.

Katz, M., & Lavan, H. (2008). Legality of Employer Control of Obesity. Journal of Workplace Rights, 13(1), 59-71. doi:10.2190/WR.13.1.e

McGuire, S., Shields M., Carroll M.D., Ogden C.L., (2011). Adult Obesity Prevalence in Canada and the United States. NCHS Data Brief no. 56, Hyattsville, MD: National Center for Health Statistics, 2011. Advances in Nutrition: An International Review Journal, 2(4), 368-369.

Pagán, J., & Dávila, A. (1997). Obesity, Occupational Attainment, and Earnings. Social Science Quarterly, 78(3), 756 - 770.

Puhl, R., Heuer, C., & Sarda, V. (2010). Framing Messages About Weight Discrimination: Impact On Public Support For Legislation. International Journal of Obesity, 35(10), 863 872.

Sutin, A. R., Terracciano, A., & Newton, R. L. (2013). Perceived Weight Discrimination and Obesity. PLoS ONE, 8(7), e70048.