You Don't Have a Right to Be Obese at Work - Pacific Standard

You Don't Have a Right to Be Obese at Work

In most places, employers can still discriminate against employees based on their weight—and research shows that they often do. So how exactly did we get here?
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(Photo: Jane0606/Shutterstock)

(Photo: Jane0606/Shutterstock)

As Nick Ciaramitaro got his start in Michigan politics, the state passed the Elliot-Larsen Civil Rights Act, which comprehensively protected against discrimination based on sex, race, disability, weight, and height—among other categories. Soon, Title VII of the national Civil Rights Act—which protects against job discrimination in race, color, religion, sex, age, or national origin, but not weight—would be strengthened, and over a decade later the Americans with Disabilities Act would become the law of the land. Anti-weight discrimination legislation never made it beyond Michigan’s borders.

“I didn’t know we were the only ones,” says Ciaramitaro, who is now director of public policy for Michigan AFSCME, the union that represents many public sector employees, when told that Michigan is the sole state with protections against weight discrimination. “I can’t imagine anyone justifying firing a waitress or waiter because she gained 10 pounds. That just doesn’t make sense to me. Is this not a conversation in other states?”

Nope, not really. In most states, being overweight remains one of the many things American employers can legally fire or discipline you for. Other legal reasons include a love of My Little Pony, political views management doesn’t like, the color of clothing, whether or not the boss finds you attractive, and almost any other reason that doesn’t directly relate to one of the categories protected by Title VII of the Civil Rights Act.

Employer power over weight discrimination gets a boost because many Americans see issues of weight or body image as an individual affliction.

Most research on the subject shows that employers freely discriminate against those who they perceive as fat. As Lewis Maltby reports in his book Can They Do That?: “a 2009 survey of two thousand employers found that 93 percent of them would choose an applicant of ‘normal weight’ over an equally qualified applicant who was obese.” A 2012 HealthDay poll found that 52 percent of obese or morbidly obese people think their employers have discriminated against them. While a 2008 Yale study found that 40 percent of those who reported a body-mass index of 35 or higher experienced weight discrimination and that much of that prejudice manifested itself at work. Nationwide, weight discrimination increased between 1995 and 2005, with 60 percent of American adults surveyed reporting at least one occurrence of employment-based discrimination. In most studies, women reported higher levels of prejudice than men.

Compelling research, however, doesn’t often drive the legislative process. Organized power is more effective, but fat rights groups do not have the influence to overcome the status quo default of most American politicians. Last year, an anti-weight discrimination bill was introduced in Utah, and it was voted down 10-four in a committee where it “sparked a lot of discussion, and some laughs.” Massachusetts state representative Byron Rushing, of Boston’s South End, has introduced similar legislation in every session for the last 15 years. The bill finally made it out of committee last autumn by a seven to one vote. Despite that victory, Rushing’s office says it is on the legislative “calendar,” but there is no indication of when (or if) the full legislature will vote on it.

The fight for Michigan’s protections isn’t too instructive, either. The bill passed in an era when gendered help-wanted signs were common and height and weight restrictions were only used to keep women and other marginalized groups from jobs as, say, firefighters or police officers. The weight category was included to fortify protections against gender and race bias.

“In that political moment there was opportunity to include a whole bunch of categories, so they put in height and weight,” says Anna Kirkland, professor of Women’s Studies at the University of Michigan and author of the book Fat Rights: Dilemmas of Difference and Personhood. “But that was at a time when interpretations of Title VII were not as robust for race and sex as they are now. It’s an artifact of a political moment that didn’t have anything to do with what we consider weight discrimination now, where we worry about antipathy towards people who are considered fat.”

EMPLOYER POWER OVER WEIGHT discrimination gets a boost because many Americans see issues of weight or body image as an individual affliction. According to a 2012 Reuters poll, most Americans think "personal choices about eating and exercising" are the principal factor in obesity. Less than a fifth fault the pervasive presence of junk food companies, and all the federal government does to support them, as a dominant factor. Yet as in so many other matters, the simplistic ideology tends to cover up systemic injustices and paper over the simple fact that not all humans are shaped the same way. A lot of people are just big; a lot of people are just fat. But the diversity of human forms, or the influence of the fast food industry, make no difference to an employer who just doesn’t like fat people.

Fat activists call weight discrimination the last acceptable form of prejudice. And the shame so many people feel about their size makes the construction of a political identity difficult, but not impossible. In the concluding pages of The Fat Studies Reader, a compendium of scholarly writing on fat rights, the editors argue that there is a powerful distinction between groups for and groups by oppressed people. The former too often do not value, or even seek, the input of those they are supposedly helping.

"It was not too long ago that organizations for ‘homosexuality’ included psychiatric hospitals and prisons,” the authors write. “When it comes to groups for fat people, the vast majority are still dieting centers and medical clinics, with just a handful of organizations by fat people for fat rights.”

The most successful campaign, in terms of influencing policy, took place in San Francisco. In 1999, a 24-hour gym purchased space on a prominent billboard and populated it with a picture of an alien and the text: “When They Come They’ll Eat the Fat Ones First.” A small protest movement quickly geared up, lead by local activist Marilyn Wann, and danced in demonstrations outside the businesses, waving signs reading: “EAT ME” and "Bite My Fat Alien Butt." Wann and others used the momentum and media attention to win allies, including San Francisco supervisor Tom Ammiano.

With his help, fat activists passed an anti-weight-discrimination ordinance. San Francisco is now one of six cities outside Michigan that can claim such protections. The influence of a movement by, not for, fat people is evident in the law’s language.

“It’s very well written. You don’t have to claim you are disabled—your body is just different,” Kirkland says. “[But] it’s a local human rights ordinance, so their enforcement mechanism is limited to mediation. It is illegal [to discriminate against workers because of their weight in San Francisco], but you can’t go to the EEOC [U.S. Equal Employment Opportunity Commission], you can’t sue in federal court.”

The ideal state-wide legislation, then, might be a mix of the Michigan and San Francisco. By crafting legislation with fat rights organizations, legislators can both pass better legislation and gain useful allies to ensure the law is used once it is enacted. (Over the last three fiscal years, the Michigan Civil Rights Commission reports a high of 44 fat-related discrimination complaints—or 1.3 percent of all discrimination complaints—in 2011.)

The fat rights movement does not yet have the visibility or power of, say, LGBTQ communities, which have fought so long for laws banning workplace discrimination for sexual orientation and identity. Forty percent of the American population now lives in states or cities covered by these protections. Weight discrimination campaigns still have a long way to go, but there’s only one way to pick up momentum. Massachusetts seems like a good place to start.

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