by Mridu Khullar
- India / USA -
In December 2008, Binghamton, New York, became one of just six cities in the United States to enact laws protecting against weight discrimination. The others are San Francisco and Santa Cruz (California), Urbana (Illinois), Madison (Wisconsin), and Washington D.C. The only state in the country to have such a law is Michigan.
Sondra Solovay, an attorney based in Berkeley, California, says fat people are often victims of discrimination and abuse in employment, social settings, places of public accommodation, and among their peers. She belongs to a growing community of people who describe themselves as "fat activists" who routinely fight the bias against heavier people and push for anti-discrimination laws. In a nod to the gay reclamation of the word “queer,” they're also reclaiming the word "fat." Says Marilyn Wann, a San Francisco-based activist, "If we claim it with pride, nobody can use it against us."
"Even though racism exists, it is not politically correct and you can't get away with it, but it seems acceptable to discriminate against larger people," says Dr. Linda Bacon, a researcher and nutrition professor at City College of San Francisco. Dr. Bacon is a strong advocate of the Health at Every Size movement and the author of a book by the same name.
In a survey carried out in 2005 by Personnel Today, a human resources news magazine in England, 93 percent of human resource personnel said they would choose a thin applicant over a fat one, purely on the basis of weight. In 2007, the publication reported that their latest data showed that an equal percentage would still make that choice.
However, some feel that these figures, if looked at closely, do not signify discrimination but capitalism.
The US federal government acknowledges that employees who are overweight or obese are costlier to businesses. A study estimated that national costs due to absenteeism and reduced productivity for 2003 were $1,627 per obese worker, compared to $1,201 per normal-weight worker.
Dr. Michael Applebaum, M.D. says fat people appear to differ from the other groups (such as race or gender), in that their condition actually makes them more expensive and less productive employees.
Jennifer Portnick, an aerobics instructor, became an unwitting champion of fat rights after Jazzercise, a franchise operation, rejected her application saying that instructors had to possess a fit appearance. Ms. Portnick approached the San Francisco Human Rights Commission and argued that regardless of her weight, she was fit. The company settled with her and dropped the "fit appearance" standard.
Had Ms. Portnick not been in San Francisco, it is unlikely she would have had any legal recourse.
Ms. Solovay thinks a federal law would act as a deterrent for any kind of discrimination against fat people. Or, she says, it might work if weight discrimination law were lumped in with disability law.
The Americans with Disabilities Act, she says, protects not only people who are disabled, but also those who are perceived to be. Even if someone doesn't have a disability, if their employer feels they're incapable of fulfilling a role because of a perceived physical shortcoming, the person can use disability law to prevent discrimination.
Not everyone likes this. "I have very mixed feelings," says Dr. Esther D. Rothblum, Professor of Women's Studies, San Diego State University, "because we're pushing heavier people into the idea that they have to claim they have a disability, when in fact they may not."
This despite the fact, Dr. Applebaum says, that is it arguably self-inflicted and wholly reversible, as opposed to a self-injury resulting in limb loss, for example.
"If expanded to weight, why not include height, hair style, beauty, or overall appearance, which will essentially ensure that nearly every disaffected employee can claim discrimination," says Christian Rowley, an employment lawyer in San Francisco. "[It] would proliferate an already overloaded and expensive docket of lawsuits." While not opposed to the idea of a federal weight discrimination law, he says it must be first considered whether or not current laws are already fulfilling this role.
Some local lawyers argue, though, that the current law does not cover all instances, and they routinely have to fall back on gender and disability laws, as in the case of Virginia Tzortzos.
The 30-year-old bartender at the popular West Hollywood nightclub Foxtail says she was bounced to the kitchen for gaining weight and was asked to lose 5 to 7 pounds before she could work in public view again. Her attorney filed a sex discrimination lawsuit because male bartenders were not required to have the same standard. Now Ms. Tzortzos is contacting senators in Michigan to see how their weight discrimination law was passed, and meeting with senators and assemblymen in Los Angeles.
"It's kind of ironic," says Ms. Solovay. "If you have an employer who says, 'I hate fat people and I'm not going to hire you because I don't want to look at you,' that behavior would be perfectly legal in most places in the country. But if the employer says, 'I don't want to hire you because I don't think you'll be able to go up and down the aisles of our store very well because you're fat,' that would be unlawful."
The current legal gray areas are not only a problem for people who face discrimination, but also for employers. Most are unclear on what their responsibilities are. "You might have one person who weights 300 pounds for whom weight is a disability, and another at the same weight for whom it isn't. So how does an employer know how to behave lawfully?" asks Ms. Solovay.
Doctors can face similar troubles. "A doctor is free to make whatever recommendation they want; the question is what you do when a doctor is actually denying service based on weight," says Ms. Solovay. This is still an unresolved area.
But, say opposers of such a law, will it allow fat people to encroach upon the rights and boundaries of others?
"In terms of healthcare costs, normal-weight people are already being 'penalized' because they are subsidizing the healthcare expenses of the overweight population," says Dr. Shawn Talbott, nutritional biochemist and the executive producer of the documentary on the obesity epidemic, Killer At Large. "Putting a law in place to 'protect' the majority overweight population would automatically codify the overpayment of healthcare costs by the healthier normal weight population," he explains.
Using healthcare costs as a target, rights/abuses can be calculated on a "wellness" basis, he says, whereby premiums are based on overall health (blood pressure, cholesterol, etc) and not based specifically on body weight. There are plenty of examples, he says, of overweight people who are healthier than their normal weight peers due to lifestyle choices such as exercise, smoking, stress, etc.
But healthcare too, say activists, is riddled with biases.
In another study undertaken by the Rudd Center, health professionals whose careers emphasize research or the clinical management of obesity, showed "very strong weight bias, indicating pervasive and powerful stigma."
Some doctors said they viewed obese patients as lazy, lacking in self-control, non-compliant, unintelligent, weak-willed and dishonest. In another study, 24% of nurses said obese patients repelled them.
"Fat adults have refused to go to the doctor, preferring even to die rather than face the medical profession's excruciating bias,” writes Ms. Solovay in her book Tipping the Scales of Justice.
During her own research, Dr. Rothblum says she has heard countless stories of verbal abuse. One woman was told by her doctor that she couldn't possibly be pregnant, because who would want to have sex with her? Another doctor wished he had a dollar for every pound his patient was overweight. And yet another said to a fat woman that if he ever looked like her, he would shoot himself.
While these examples are extreme and mechanisms should exist to provide recourse for fat patients, experts are still split on whether a law would be effective.
"The laws should not promote obesity or protect the obese population necessarily," says Melissa Bosslet, a registered dietitian and certified personal trainer with EB Nutrition in Maryland. "They should prevent unfair treatment."
About the Author
Mridu Khullar is an independent journalist from New Delhi, India. For the past six years, she has written extensively about human rights and women's issues in Asia and Africa. Her work has been published in Time, Elle, Marie Claire, Ms., Women’s eNews, and East West, among others.
Mridu recently completed the Visiting Scholar program at the University of California at Berkeley's Graduate School of Journalism. Visit her website at www.mridukhullar.com.