“Fat Activists” Seek Law Banning Weight Discrimination

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."

A study of 1,100 adults funded by the Rudd Center for Food Policy & Obesity at Yale University concluded that discrimination against fat people, especially fat women, is as common as racial discrimination. The subjects in the study were interviewed twice over a 10-year span, first between 1995 and 1996, and again between 2004 and 2006.

"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.

5 comments on ““Fat Activists” Seek Law Banning Weight Discrimination
  1. juliejpak says:

    The title grabbed me, so I had to read it. Unfortunately, the article was off the mark and it was difficult to take seriously, especially with the tones of “victim mentality”, the comparison to gay and racial discrimination, and women’s rights.
    It’s shameful that obese people face discrimination or even made fun of, but obesity is preventable and curable. It’s a lifestyle and health choice these people have made for themselves.
    You’ve omitted the data points that 26% of US adults are obese (2008), while 500 million people in the world are living with absolute poverty and 15 million children die of hunger each year. And everyday over a billion people are starving and more are malnourished.
    Now, let’s talk about the healthy people like myself. We are becoming the minority here. Should I ask for special privileges? Or should I get a tax credit for not smoking and reducing my carbon footprint because I eat and waste less? Now, doesn’t that sound trite?

  2. amorfati says:

    While I disagree in principle with many of the implications of a law protecting against weight discrimination, it seems inappropriate to me to criticize the author so vehemently. This is not an opinion piece – she is simply presenting the matter as it has been presented by its proponents… I see no indication of her feelings on the matter, regardless of whether or not she agrees or disagrees (which is thoroughly her business, anyway).
    Content-wise, however, I agree in principle with your points, juliepak. The fact of the matter is that overweight and obese employees cost their employers more, and that weight is largely a matter of choice, much like smoking. If a person does have a genetic predisposition to obesity, then I would imagine he/she would in fact fall into the “disabled” category, which is already protected by law.

  3. Nancy Vining Van Ness says:

    I would have liked to see some information about the impact of industrial agriculture on the epidemic of obesity and a discussion of holding that industry and the governments that support it accountable.
    Here is a link to a review of Globesity:A Planet Out Of Control in which there is the following quotation:
    “There’s this huge myth, or social stigma, associated with obesity: that it’s just about people overeating, or being greedy, lazy, and not able to control their eating,” said [Michelle] Holdsworth [lead author of Globesity], who taught public health at the University of Nottingham before moving to Montpellier [location of World Health Organization] this spring. “So much research shows that’s just not the case. Yes, people do eat more than they need, but the reason why they’re eating more is what we really need to look at. Our argument, and there’s lots of scientific consensus to this, is that it’s more about the environment people live in.”
    She describes “obesidemic environments,” in which schools and workplace cafeterias offer only high-calorie foods; in which urban design discourages walking; in which government subsidies make fresh produce more expensive than potato chips.”
    The most desirable goal in my mind is fewer obese people and a healthier population world wide.

  4. Nancy Vining Van Ness says:

    From Ellen Goodmans Taking on Big Food:
    David Kessler, former head of the FDA and author of “The End of Overeating,” is “a scientist, not a conspiracy theorist. But he writes about how the food industry has learned to produce ‘hyperpalatable combinations of sugar, fat and salt’ that not only appeal to us but ‘have the capacity to rewire our brains, driving us to seek out more and more of those products.’
    “And if words that Kessler uses like ‘craveability’ and ‘conditioned hypereating’ sound exaggerated, he takes you to an industry meeting where a food scientist on a panel called ‘Simply Irresistible’ offers tips on ‘spiking’ the food to make people keep eating.
    “We eat more when more is on the plate. We eat more when snacks are ubiquitous, when flavors are layered on and marketed as ‘eatertainment.’ As one food executive admitted to Kessler, ‘Everything that has made us successful as a company is the problem.'”
    Industries that cause major problems need to be held accountable not subsidized and indemnified.

  5. kellyvasquez says:

    I’m not quite sure in which capacity I am responding to this article–as a woman who has struggled with obesity and food “issues” since childhood? As a progressive, politically active Californian American? As an attorney with a bent for helping the underdog? The truth is, as the article points out, one of the most difficult things about addressing the way obese people are treated in society and under the law is the very fact that obesity is such a multi-faceted issue, one which it is virtually impossible to disentangle and cleanly separate from all of its related layers.
    I think that my main reaction is one of gratitude to the author for bringing up this controversial issue in the first place and for doing so in an objective and thought-provoking way. Whether or not you believe that obese people are the subject of discrimination, not to mention whether or not you believe this discrimination is unlawful, it is undeniable that there are major societal, environmental, emotional and financial factors in play which effect each of our feelings/ideas about obesity. And given that obesity is an increasingly present phenomenon with an increasingly large, and admittedly negative, impact, around the world, it certainly merits active, engaged discussion and analysis, such as that provided in this article.

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