Discrimination Over Your Weight

j_war06 · July 28, 2005

I was wondering if you all would take my survery, and post your comments on being discrimanted against. I face it almsot everyday in department stores, applying for jobs, even in my school work. I thought this would be an interesting topic.

Evidence of discrimination is found at virtually every stage of the employment cycle, including selection, placement, compensation, promotion, discipline and discharge, according to a research review by Mark Roehling, a professor in the Department of Management, Western Michigan University. In addition, the bias extends to assessments of overweight individuals in their various work-related roles both as subordinates and co-workers. Of his findings, Roehling said, "Overall, the evidence of consistent, significant discrimination against overweight employees is sobering."

Roehling reviewed 29 research studies of employment discrimination that included both laboratory and field studies. He found that:

Overweight persons were subject to discrimination in employment decisions based on body weight.
Overweight persons were frequently stereotyped as emotionally impaired, socially handicapped and as possessing negative personality traits.
Wages of mildly obese white women were 5.9 percent lower than standard weight counterparts; morbidly obese white women were 24.1 percent lower, according to two studies. In contrast to females, the wages of mildly obese white and black men were higher than their standard weight counterparts. Men only experienced wage penalties at the very highest weight levels.
"Studies assessing the effect of both employee weight and other suspected bases for discrimination (sex, specific disabilities, etc.) provide evidence of the relative level of weight-based bias; they suggest that weight-related bias may be greater than that associated with other characteristics.

For example, Pingitore et al's (1994) study manipulating applicant weight, applicant sex and job type, found that applicant weight explained 34.6% of the variance in hiring decisions. In contrast 10.6% of the variance was explained by the sex of the applicant.

Brink (1988) examined the potential effect of applicant weight, age, sex and race on ratings of candidate acceptability in a laboratory setting. Overweight candidates were rated significantly lower, but none of the other manipulations has a significant effect. A final example is provided by Kennedy and Hormant's (1984) investigation of the effect of social stigmas on decisions regarding employee discharge. They found that participants displayed more negative attitudes toward overweight employees than ex-felons or ex-mental patients."
Michigan is the only state that prohibits employment discrimination on the basis of weight. In studies conducted in settings unrelated to employment, Roehling found some evidence that overweight women were evaluated more negatively than overweight men. Although the findings were not consistent, Roehling stated, "Where an interaction is found, overweight women are evaluated more negatively than overweight men." He also found that overweight persons are denigrated by doctors, nurses, peers, small children and their parent(s).

Wages and Benefits

Several studies have found that women with obesity earned less than non-obese women.

In a study by Rothblum and colleagues, of persons who were 50 percent or more above their ideal weight, 26 percent reported they were denied benefits such as health insurance because of their weight and 17 percent reported being pressured to resign or fired because of their weight.

Legal Issues

The Civil Rights Act of 1964, (Title VII, 42 U.S.C. §2000 et seq.) established basic federal law on employment discrimination. It does not identify weight as a protected characteristic, and as a result does not provide direct protection for obese individuals who have been discriminated against by their employer due to their weight.

The differential application of weight standards, formal or informal, to members of protected classes may constitute disparate treatment discrimination.

In Gerdom v. Continental Airlines Inc., 692 F2d. 602, 30 FEP 235 (9th Cir. 1982; en banc), the court determined that the airline's weight restriction program treated employees differently based on sex because it was designed to apply only to females, and "it was not merely slenderness, but slenderness of female employees which the employer considered critical." The airline argued that it had a competitive strategy featuring attractive flight attendants and that a slender female was a bona fide occupational qualification (BFOQ). The court rejected this argument holding that customer preference unrelated to the ability to do the job cannot justify discriminatory policies.

Disparate treatment may also be found if weight policies designed to apply to all groups are enforced at a significantly higher rate against a protected group. Union of Flight Attendants v. Pan American World Airways, Inc., 50 FEP 1698 (N.D. Cal 1987)

An employer's use of formal or informal weight standards may involve illegal discrimination if, though neutral on its face, the rule has a significant disparate impact on a protected class. In other words, if a claimant established that the weight rule was having an adverse impact on African Americans, Title VII would require an employer to justify its weight rules by showing that it is job-related and consistent with business necessity.

Rehabilitation Act and the Americans with Disabilities Act (ADA)

The Rehabilitation Act and the ADA provide protection against employment discrimination. Under both acts, a person must establish that he or she is an individual with a disability within the meaning of the acts. This includes anyone who has a physical or mental disability that substantially limits one or more major life activities of the individual, a record of such impairment or who is regarded as having such impairment. Equal Employment Opportunities Commission (EEOC)

EEOC regulations define "major life activities" as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. The regulations require that the 'working" limitation requires evidence of being significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a specific job does not constitute a substantial limitation in the major life activity of working. The EEOC regulations implementing the ADA explicitly excludes height or weight within normal ranges and are not the result of a physiological disorder. According to the regulation, obesity will considered as a disability except in "rare circumstances." (29 C.F.R. §1630.2)

j_war06 · July 28, 2005

Controversies in Coverage for Obesity

Treatment and prevention have seldom been emphasized by insurance providers, despite spiraling health care costs attributed to obesity. With more Americans overweight, obesity has become a leading cause of preventable death (65) . Direct costs associated with obesity represent 6% to 7% of the National Health Expenditure (66) (67) ; 99.2 billion dollars were attributed to obesity in 1995, of which 51.6 billion dollars were direct medical costs (67) .

A study examining the 25-year health care costs for overweight women over age 40 years using an incidence-based analysis, predicted that 16 billion dollars will be spent in the next 25 years treating overweight middle-aged women alone (68) . Other investigations have suggested a relationship between BMI and health care expenditures. In one study, medical and health care use records of obese women (N = 83) belonging to a health maintenance organization were compared with records of non-obese women (69) . As BMI increased, so did the number of medical diagnoses and the use of health care resources. In another analysis of employees of 298 companies (N = 8822), obesity was directly and significantly related to higher health care costs (an 8% higher cost), even when adjusting for age, sex, and a number of chronic conditions (70) . A longitudinal observational of obese individuals (N = 383) covered by the same insurance plan reported that the probability of health care expenditures increased at BMI extremes (71) .

A study of over 17,000 respondents to a 1993 health survey reported a strong association between BMI and total inpatient and outpatient costs (66) . Compared with individuals with a BMI of 20 to 24.9 kg/m2, there was a 25% to 44% increase in annual costs in moderately and severely overweight people, adjusted for age and sex. Wolf and Colditz (67) reported an 88% increase in the number of physician appointments attributed to obesity from 1988 to 1994, and a total of 62.6 million obesity-related physician visits in 1994. A recent review of the scant literature on access to and usage of health care services suggests that obese persons use medical care services more frequently than do non-obese people and that they tend to pay higher prices for these services (72) .

Beliefs that obesity treatment is unsuccessful and too costly have been challenged (73) . Weight losses as small as 10% are associated with substantially reduced health care costs, reduced incidence of obesity-related comorbid conditions, and increased lifetime expectancy (73) (74) . Recent research has addressed the cost-effectiveness of drug treatments and surgery for obesity. In 1999 Greenway et al. (75) found that weight losses produced by medications (fenfluramine with mazindol or phentermine) reduced costs more than standard treatment of comorbid conditions. Gastric bypass surgery has demonstrated even more impressive effects, with lower costs and greater long-term weight loss maintenance in comparison to low-calorie diets and behavior modification (76) , as well as significant reductions in BMI, incidence of hypertension, hyperinsulinemia, hypertriglyceridemia, and hypo-high density lipoprotein cholesterolemia, and sick days from work compared with matched controls (77) (78) .

Current Coverage Practices

Even with some evidence of cost-savings for some weight-loss methods, medical coverage is inconsistent. Surgical treatment is often not reimbursed even though diseases with less supported treatments are compensated (79) . Some have explicitly pointed to prejudice against obesity surgery by insurance providers who are preventing its broader acceptance and use in practices (80) . As Frank (81) concludes, "... no claim to justify the denial of benefits for the treatment of obesity has any validity when held to the standards of health insurance otherwise available in the United States. It should be obvious that such a judgment is ethically unconscionable."

It is typical for health insurance plans to explicitly exclude obesity treatment for coverage (82) . Physicians often have difficulties receiving reimbursement for their services (79) . Many reimbursement systems do not categorize obesity as a disease, leading physicians to report comorbid disorders as the reason for their services (79) .

In 1998, the Internal Revenue Service excluded weight-loss programs as a medical deduction, even when prescribed by a doctor. In response, several organizations such as the American Obesity Association (83) filed petitions for a ruling to allow the costs of obesity treatment to be included as a medical deduction. As of 2000, the Internal Revenue Service policy changed its criteria, allowing costs for weight-loss treatments to be deducted by taxpayers for certain treatment programs under a physician’s direction to treat a specific disease (84) .

The Social Security Administration has eliminated obesity from its list of impairments, which is used to determine eligibility for disability payments (65) . Because individuals who receive social security disability benefits are also eligible for Medicare after 2 years, those who are denied disability also forgo opportunities for medical coverage (65) .

Although few studies have addressed this issue, a recent cross-sectional analysis of third-party payer reimbursement for weight management for obese children reported low reimbursement rates (85) . Despite the medical necessity of weight management for obese children in the study, no reimbursement was given to 35% of the children enrolled in weight-management programs, and no association existed between the severity of obesity and the reimbursement rate (85) .

Although this article does not intend to examine all of the potential factors that may underlie these coverage policies, one likely contributor are perceptions that obesity is a problem of willful behavior and that treatment is unsuccessful and expensive (81) . Although health insurance typically covers treatment for substance abuse and sexually transmitted diseases, which are also considered to be problems of willful behavior, obese persons may not receive the services they need (81) .

Denying obese people access to treatment may have medical consequences, but also denies people an opportunity to lose weight, which itself may reduce exposure to bias and discrimination. For example, Rand and MacGregor (58) assessed perceptions of discrimination among morbidly obese patients (N = 57) before and after weight-loss surgery. Before their operations, 87% of patients reported that their weight prevented them from being hired for a job, 90% reported anti-fat attitudes from co-workers, 84% avoided being in public because of their weight, and 77% felt depressed on a daily basis. Fourteen months after surgery, every patient reported reduced discrimination, 87% to 100% of patients reported that they rarely or never perceived prejudice or discrimination, and 90% reported feeling cheerful and confident almost daily. A further study indicated that 59% of patients requested surgery for social reasons such as embarrassment, and only 10% for medical reasons (86) . After the operation, patients reported improved interpersonal functioning (51%), improved occupational functioning (36%), and more positive changes in leisure activities (64%). Although these studies are based on self-reports from selected samples and, therefore, have limitations, it is interesting to note the dramatic reduction in postsurgical perceptions of prejudice and discrimination, and the power of social perceptions in motivating surgery decisions. Summary and Methodological Limitations

A "fat is bad" stereotype exists in the medical field (87) . Further study is needed to test the degree to which this affects practice. It seems that obese persons as a group avoid seeking medical care because of their weight. One barrier to drawing further conclusions, however, is that much of the research relies on self-report measures of variable reliability and validity. There is a need to move beyond reports of attitudes to actual health care practices.

j_war06 · July 28, 2005

Peers in the School Environment

Peer rejection may be an overweight individual’s first challenge in educational settings. Anecdotes have been noted where harsh treatment from peers has resulted in suicide (88) (89) . Such anecdotes are extreme, but research does show substantial rejection of obese children by peers at school. An often cited example is a study conducted in the early 1960s in which children in public school and summer camp settings (N = 600) ranked six pictures of children varying in physical characteristics and disabilities in order of who they would like most for a friend (90) . The majority of children ranked a picture of an obese child last among children with crutches, in a wheelchair, with an amputated hand, and with a facial disfigurement. A recent replication of this study among fifth- and sixth-grade students (N = 458) reported that the strongest bias was against the obese child and that there was an increase in prejudice against the obese child compared with the findings from 40 years earlier (91) .

Other recent studies showing photographs of obese and non-obese persons to schoolchildren showed negative stereotypes and suggested that bias is formed by 8 years of age (92) . Some work shows anti-fat attitudes in 3-year-old preschoolchildren (93) . Research addressing children’s attitudes toward thinness and ideal body size indicate the same trend. One study of fourth-grade children (N = 817) found that 49% of girls and 30% of boys chose ideal figures thinner than themselves when shown a number of different body types (94) . Only 10% of boys and 11% of girls selected an ideal body size larger than their own.

Other work has demonstrated that children in grades four through six endorse negative stereotypes for both obese children and adults, and regardless of the child’s own weight, age, and gender (95) . Children reported that they believed that obesity was under personal control; this belief was positively related with negative stereotyping. Another study examined knowledge about obesity among third and sixth graders who were randomly assigned to watch a videotape of a peer who was average weight, obese, or obese with a medical explanation for the obesity (96) . Obese children received the most negative judgments, and although children attributed less blame to the obese child with the medical explanation, this knowledge did not improve attitudes among children toward obese peers. This parallels findings from a study attempting to change negative attitudes about obesity among undergraduate students where an increase in knowledge did not alter attitudes (97) . Authors of both studies (96) (97) concluded that more powerful means are necessary to foster positive attitude changes toward obese individuals. For children, this might involve broad educational approaches to increase weight tolerance, which reduced teasing toward overweight peers and increased acceptance of diverse body types among fifth-grade students in a recent study (98) .

One study assessed personal descriptions of perceived stigmatization among overweight adolescent girls (99) . Ninety-six percent reported negative experiences because of their weight, the most frequent being hurtful comments such as weight-related teasing, jokes, and derogatory names. Peers were the most common critics and school was the most common venue. Many reported being teased continually about their weight throughout elementary school, middle school, and high school and indicated that they had not yet learned how to cope with stigmatizing encounters with peers. Some research has examined the long-term impact of weight-based teasing in a clinical sample of obese women and found that more frequent teasing during childhood and adolescence was related to more negative self-perceptions of attractiveness and greater body dissatisfaction in adulthood (100) .

The psychological and social consequences of these experiences have been addressed in the literature for many years (101) (102) (103) . Although obese pre-schoolchildren seem to have similar levels of self-esteem as non-obese preschoolers (104) , this drastically changes once children begin school. A study of children 9 to 11 years of age (N = 67) reported that clinically overweight children had significantly lower self-esteem than non-overweight children (105) . Self-esteem was lowest among overweight children who believed that they were responsible for their overweight and who believed that weight was the reason for few friends and exclusion from games and sports. In addition, 91% of the overweight children felt ashamed of being fat, 90% believed that teasing and humiliation from peers would stop if they lost weight, and 69% believed that they would have more friends if they lost weight (98) . These findings parallel other reports of low self-esteem and poor social and athletic competence among obese children 9 to 12 years of age (106) (107) .

Weight Stigmatization in High School and College

In addition to continued endorsement by college students of negative stereotypes about obese individuals as lazy, self-indulgent, and even sexually unskilled and unresponsive (108) (109) , weight stigmatization can be more overt at higher levels of education. There are reports of overweight students receiving poor evaluations and poor college acceptances and facing dismissal due to their weight (5) (110) . Most studies have addressed these issues at the college level. Canning and Mayer (111) examined school records and college applications of 2506 high school students and found that obese students were significantly less likely to be accepted to college despite having equivalent application rates and academic performance to non-obese peers. Moreover, obese women were accepted less frequently (31%) than were obese men (42%).

Crandall (112) examined reasons for the lower college acceptance of obese women. In studies assessing issues of weight, financial aid, and college income among undergraduate students (N = 833), a reliable relationship emerged between BMI and financial support for education. Normal-weight students received more family financial support for college than overweight students, who depended more on financial aid and jobs; this effect was especially pronounced for women. Differences in family support remained despite controlling for parental education, income, ethnicity, and family size.

In a study of overweight women, Crandall (113) again demonstrated parental bias. High school seniors (N = 3386) completed questionnaires about their weight, college aspirations, financial support, grades, and parental political attitudes. Both overweight men and women were underrepresented in those who attend college, and overweight women were least likely to receive financial support from families. Politically conservative attitudes of parents predicted who paid for college, where conservative ideological attitudes among parents (characterized by values of self-discipline and the tendency to perceive people as responsible for their own fate), were positively correlated with BMI of students. Crandall (114) theorized elsewhere that anti-fat attitudes are related to Protestant work ethic values of self-determination and the ideology that people deserve what they get. Thus, individuals with such ideological beliefs may be more likely blame their obese children for their weight (114) .

There have been celebrated cases of obese students being dismissed from college because of their weight; one reached the U.S. Supreme Court. In 1985 an obese nursing student named Sharon Russell was dismissed from Salve Regina College 1 year before obtaining her nursing degree for failing to lose weight (110) (115) (116) . Although the school did not object to Russell’s obesity at admission to the program, her weight became an issue of public scrutiny and harassment by students and faculty (110) . Russell demonstrated good academic performance in her courses, though in her junior year she received a failing grade in one course (which was determined to be the result of her weight and not her academic performance) (110) . Instead of expulsion, Russell was asked to sign a contract agreeing that she could remain if she lost 2 lb/wk. A year later and several credits shy of her degree, Russell was dismissed from the school for her inability to lose weight (115) .

Once successfully obtaining her degree at another college and obtaining her nursing license, Russell sued her previous college for wrongful dismissal, intentional infliction of emotional distress, and discrimination in violation of the Rehabilitation Act (115) . Six years later she was granted monetary damages and the case was concluded (117) . In a nursing journal, Weiler and Helmes (110) noted, "... what should be particularly troublesome for nurse educators, is that the nursing profession prides itself on providing caring and compassionate treatment for all patients, yet in this case it failed to extend this same sensitivity to a future colleague."

It is possible that negative attitudes by educators toward obesity are more widespread than has been documented. Solovay (5) notes, "Many fat kids exist on a diet of shame and self-hatred fed to them by their teachers." One study reported that junior and senior high school teachers and school health care workers (N = 115) believed that obesity was primarily under individual control (118) . Although approximately one-half of the teachers did recognize biological factors in the etiology of obesity, teachers agreed that obese persons are untidy (20%), more emotional (19%), less likely to succeed at work (17.5%), and more likely to have family problems (27%). Forty-six percent agreed that obese persons are undesirable marriage partners for non-obese people, and fully 28% agreed that becoming obese is one of the worst things that could happen to a person (118) .

These findings support the 1994 Report on Discrimination Due to Physical Size by the National Education Association, which stated that "for fat students, the school experience is one of ongoing prejudice, unnoticed discrimination, and almost constant harassment" and that "from nursery school through college, fat students experience ostracism, discouragement, and sometimes violence" (119) . Summary and Methodological Limitations

Rejection, harassment, and stigmatization of obese children at school is an important social problem. The severity and frequency of this treatment by peers and teachers is disturbing, but, again, the literature must be strengthened to understand the entire picture. Self-reports are the most common method used. It is essential to collect both peer ratings and teacher ratings and to conduct behavioral observations in the classroom and schoolyard. College admission data are old, so it is necessary to determine the extent to which discriminatory practices now occur. Finally, some reports are anecdotal. Anecdotes can lead to needed research but do not prove discrimination.

j_war06 · July 28, 2005

Housing

One small study suggests that weight discrimination may exist for obese tenants seeking apartment rentals (124) . Obese and non-obese student confederates each visited 11 available rental units, pretending to be seeking each apartment for rent. All 11 landlords offered the units to the non-obese confederate, but 5 landlords would not rent to the obese confederate (124) . Three of these five actually increased the rental price with the obese confederate (124) . Because this study is both dated and limited in its small sample, additional research replicating these findings would be valuable and could broaden the present insufficient knowledge of this potentially discriminatory issue.

Adoption

Obesity could potentially be a basis for denying individuals the right to adopt a child. This issue has not been addressed in research, but several countries outside of North America may be using parental weight criteria in adoption procedures (125) . Anecdotal evidence suggests that this may occur in the United States, where obese women have reported being turned down by adoption agencies and told that they would be unfit mothers due to their weight (58) .

NAAFA believes that weight discrimination in private American adoption agencies is a reality and has formulated an official position advocating equal access to adoption services for obese individuals and couples (126) . NAAFA has resolved to improve education about size discrimination in adoption, provide support to obese individuals facing such discrimination, and assist plaintiffs in litigation (126) . Because the issue has not been studied, research documenting whether this discrimination exists is important.

Research

It is critical that research itself not exclude obese persons. Overweight people have been underrepresented in research unless studies have focused on obesity (5) . As an example, the National Institute of Health funded the Women’s Health Initiative for over 600 million dollars to investigate cancer, heart disease, and osteoporosis in women. Although tens of thousands of women are participating in this longitudinal study, and despite overweight women having increased vulnerability for some of the diseases being investigated, the study excluded obese women (5) (127) .

Limitations of Existing Research

Laboratory studies addressing discriminatory attitudes and behaviors rely primarily on student samples, so generalization must be examined. Second, most studies on anti-fat attitudes among medical, educational, and hiring professionals have used nonrandom designs, self-report methods, and a variety of attitudinal assessment measures that may not have been tested for validity and reliability. Third, the literature is not sufficiently large or mature to draw conclusions across all areas in which discrimination has been claimed. For instance, there are hints but not documentation of obese individuals being denied children in adoption proceedings, the assumption being that weight reflects personal failings that would make people unfit parents. Finally, it is not clear whether the severity and frequency of discrimination increases as an individual becomes more obese. Many theoretical questions about weight stigma have yet to be studied. Although a few preliminary models have been proposed, theories have not been compared and there is no consensus of which factors best predict who will stigmatize obese people. Despite evidence of various cultural attributions toward obesity throughout history, there is also a need to examine the cultural factors that affect this population (128) . As research better documents weight discrimination, conceptual frameworks for understanding weight stigma can be refined, and hypotheses can be increasingly guided by theory. Ultimately, the integration of theory and empirical studies should be used to derive stigma reduction strategies and interventions to eliminate discrimination.

j_war06 · July 28, 2005

Current Weight-Specific Legislation

No federal laws exist to prohibit discrimination against obese individuals, and only Michigan’s civil rights legislation prohibits employment discrimination on the basis of weight at the state level (34) . The District of Columbia forbids discrimination on the basis of appearance including weight, and Santa Cruz, California includes weight in its definition of unlawful discrimination (129) . In the spring of 2000, San Francisco passed legislation to ban weight discrimination, adding weight and height to existing characteristics (such as gender, ethnicity, age, and sexual orientation) that are protected (130) . Advocates in San Francisco gained support for this legislation when a health club created a billboard with a space alien saying, "When they come, they’ll eat the fat ones first." Overall, few locations have weight-specific legislation, so most obese persons are forced to use existing human rights statutes for legal protection. In particular, overweight individuals have depended on the Rehabilitation Act (RA) of 1973 and the American Disabilities Act (ADA) of 1990 (131) . Employment discrimination cases encompass the vast majority of such actions.

The RA was the first effort to prohibit federal employee discrimination against individuals with disabilities (32) . A person with a disability is one who has a physical or mental impairment that substantially limits at least one major life activity (activities such as walking, breathing, self-care, and working), has a record of such an impairment, or is perceived as having an impairment (34) (129) . The RA does not actually include obesity as a specific protected impairment (32) .

The ADA expanded federal disability discrimination legislation by extending mandates to private employers, state and local employment agencies, and labor unions (23) (131) . Like the RA, the ADA protects disabled but qualified employees who can perform essential aspects of employment (131) . The Equal Employment Opportunity Commission (EEOC) implemented regulations for more flexible interpretation of ADA impairments, allowing obesity to be included in its broader definitions (129) (132) . The guidelines of the EEOC do not consider obesity alone to be an impairment. However, obesity can meet impairment definitions if one’s weight can be attributed to or results in a physiological disorder, or if a person’s weight is severe as in cases of morbid obesity (132) .

Under the ADA two kinds of cases can be pursued: those involving actual disabilities, and those of perceived disabilities. An actual disability claim requires that an individual’s obesity be substantially limiting in at least one major life activity. A perceived disability occurs when one is regarded by others as having an impairment (131) . Here, the obese individual must demonstrate either an actual impairment that does not limit life activities but is perceived to be limiting by others or that there is no impairment at all but that the individual is perceived as having one. As many courts do not recognize obesity as an actual impairment, obese individuals must often use perceived impairment claims (131) .

Inconsistent Rulings

Although alleged discrimination is being met with lawsuits, the overall picture of cases pursued under these statutes is one of mixed results. The majority of courts have ruled that obesity, per se, is not a disability (32) . In Krein v. Marian Manor Nursing Home, for instance, an obese nurse’s aid was discharged because of her weight. The court held that her obesity was not a disability and, thus, was inadequate to qualify the plaintiff for discrimination protection (131) (133) . Similar court rulings were held for a flight attendant in Tudyman v. Southwest Airlines and for a labor worker in Civil Service Commission v. Pennsylvania Human Relations Commission, where both plaintiffs failed to show that their obesity caused, or was caused by, a condition that would qualify them for state protection (31) (37) .

Later cases continue to follow this trend. In Cassista v. Community Foods Inc., an obese woman was denied a cashier/stocking position because of her weight (131) (134) . In the case of Philadelphia Electric Co. v. Pennsylvania Human Relations Commissions, an obese woman was refused employment in a customer service position due to her obesity, despite having passed pre-employment evaluation. The court ruled that her obesity did not impair her job performance and, thus, could not constitute a disability and receive protection (37) (135) .

Although few cases have held that obesity on its own constitutes a disability, several court rulings have demonstrated circumstances in which obese plaintiffs have been successful. In the case of New York Division of Human Rights v. Xerox Corporation, an obese plaintiff was denied a computer programming position because her obesity made her medically unsuitable for the job, according to the company’s physician (32) (136) . The state court recognized broader definitions of disability under New York law and ruled that her obesity was an impairment as defined by Xerox’s medical staff, although she had no other medical conditions and could perform the duties of the position (32) (37) . In the case of King v. Frank, a postal worker alleged that he was fired because his supervisor perceived his obesity to be an impairment (137) . The commission ruled that because the employer perceived the worker to be substantially limited in work (one of the major life activities of the RA), he was granted protection under the RA (32) . Finally, the case of Gimello v. Agency Rent-a-Car Systems also accepted a disability claim in which the court concluded that the plaintiff’s obesity was a physical disability because he had sought medical treatment for his condition (36) .

Unresolved Issues: Blame and Disability

The legal issue of whether obesity is a disability has not been decided. Very obese persons or individuals whose obesity is attributed to an underlying medical condition may have the most success under the ADA (131) , but it is difficult to predict which cases will be successful. Court decisions of whether obesity is an impairment may be the result of many factors besides ADA guidelines, such as court beliefs, cultural perceptions, academic views, previous case rulings, and weight bias in judges.

Inconsistent court decisions will likely continue until ambiguities in existing legislation are resolved. Under the ADA there is no standard for determining how obese a person must be for weight to be considered a disability (37) (132) . Being moderately fat will only be considered a disability if accompanied by an additional impairment, whereas obesity on its own does not meet ADA impairment definitions. Morbid obesity can meet disability requirements. Korn (138) notes that limiting the protection of the ADA to morbid obesity ignores the majority of the obese population and reinforces misperceptions that anything less than morbid obesity can be personally controlled.

Courts have generally viewed overweight as voluntary and mutable and, therefore, have disqualified it as a disability (131) (138) . The ADA does not actually require a condition to be immutable or involuntary to be considered a disability (32) . The RA and ADA protect other mutable conditions like alcoholism, drug addiction, and acquired immune deficiency syndrome, all of which involve voluntary behavior (32) . Although the EEOC states that being voluntary is irrelevant in the definition of impairment, the fact that obesity is rarely considered an impairment without an underlying medical condition suggests that the EEOC sees obesity as controllable (138) .

Another unsettled issue is the applicability of the perceived disability theory. Because courts are unlikely to accept obesity as an impairment, overweight persons can stand on this section of the law. Yet successfully applying this theory to obese individuals may be unlikely, because the plaintiff must prove that the employer perceived weight to be an impairment, not just that the employee was perceived to be overweight (131) .

Legal pursuits are not necessarily easier for obese individuals proceeding under actual disability claims. Successfully proving that one’s condition substantially limits a major life activity does not necessarily satisfy legal requirements. Both the ADA and RA can deny protection even if one’s obesity does impair life activities (34) . The obese plaintiff must also prove that he or she can satisfy the essential functions of the position, and those who cannot perform job duties with or without reasonable accommodation will not be protected (34) .

Whether it is advantageous for obesity to be considered a disability is a matter of debate. Despite the legal advantages of the disability label, considering obese persons disabled may have unwanted ramifications. For example, it may be undesirable for overweight children to consider themselves "disabled." Because weight is a disabling condition in only a minority of cases, it may be harmful to attach a disability label to a condition already severely stigmatized.

A key problem is that existing statutes were not intended to protect against weight discrimination (129) . Categorizing discrimination claims under current disability definitions makes less sense than finding other strategies to fight weight discrimination. Several suggestions have proposed revising the ADA. One option may be to change definitions of disability in the ADA to explicitly include obesity (37) (138) . Doing this would allow individuals uniform protection for having limiting conditions due to obesity, although this option would also mean attaching a disability label (37) . Others have concluded that the EEOC should declare issues of voluntariness and mutability as irrelevant to decisions determining impairment and enforce that they be excluded (131) . An alternative is to create new legal options for obese employees other than the RA and ADA. Adamitis (129) suggests that the most appropriate alternatives are state and local laws for protection from weight discrimination. It may be more realistic to consider state statutes, which often provide broader coverage, than to focus on federal laws (129) . As mentioned earlier, legal cases prove only that discrimination based on weight is perceived and that legal justification for seeking relief is growing. One cannot infer that discrimination is widespread from such cases. Prevalence studies are necessary.

j_war06 · July 28, 2005

I find this interesting, just pick what you are interested in, I dont expect ppl to read all of this lol

Alexandra · July 28, 2005

This is very interesting, Jodie. I'm sure we've all felt a bit insulted or ignored from time to time in ways that probably relate to our weight. But I would caution us to be aware that outright discrimination is a different animal. I can't say I've ever felt truly discriminated against in any meaningful way, and I've been significantly overweight all of my life.

vinesqueen · July 28, 2005

I read this report or maybe it was an abstract of the report, and it is very interesting.

I dont' know that I've ever been discriminated on because of my weight. I've been discriminated because I'm a woman, but not becaue of my weight.

The first time I've ever really experience any negative that I could tell was directly because of my weight was on a flight out of Pocatello Idaho. The woman I sat next too was downright hostile. And It's happened on several Pokey/Seattle flights. I was absolutely bewildered the first couple of times it happened. It was only women, never men.

I didn't answer your poll, because I feel that there isn't a "I don't "think" I've been discriminated against. It is possible that my weight had some effect, but it's been obviously gender biased.

j_war06 · July 28, 2005

Well, I know that being an overweight teen is hard, and that I have experienced disrimination based on all of these categories. I have not been able to get a job, although I am EXTREMELY qualified, more so than a lot, but it always seems that some skinny, cute, little partygirl (gets drunk and high every weekend) always gets the job. hmmmmm makes me wonder. In food establishments I have had the waitress (usually) bring me a lesser or bigger portion than what I ordered (if I wasnt big, I would think it was a nice gesture, but its something I can't stand). In clothing stores though is where I face the most discrimination, clerks won't help me (even if I ask), people in the dressing rooms are uninterested in me (but a skinny person comes in and they are excited). Only in plus sized stores do I get ANY help what-so-ever and then I cant get rid of them lol. I do not even go to public places anymore because I have been asked to leave more than once. I do not even go to school because the lunch lady tends to tell everyone whom she feels should drop some weight that they dont need to be eating, and should be puking in the bathroom. The other lunch servers are extremely rude and take me as a pushover, surprise im not one. In class, the teachers pay little attention to what I say, like I am invisible and I receive lower grades even though I had very similar answers to those of the thinner people. The staff is less likely to help me, and the kids are more likely to harass me. I know you all have experienced something like I have.

vinesqueen · July 28, 2005

Jodie, honey, I think you'd better have your mother start legal action over the discrimination you are facing. Your co-morbidities quite likey fall under the ADA, it's that whole death thing.

Okay, is your ticker show really how much you weigh? 240?

j_war06 · July 28, 2005

I am not worried about the legal side of it (for once lol). I just figure they will have to deal with it someday, so I don't worry about it.

*Yes I really did weigh 240, but since I have lost weight do to being sick and my weight fluctuates really badly. Not to mention, when I had my consultation I only weighed 228. But now I back in the 220s.

fee · July 31, 2005

i have been discriminated in clothes shops and job interviews

like jodie said and its all completely true

you walk into a normal clothes shop and you could be buying for someone else and they completely ignore you.....then someone skinny walks in the door and there right there for them.This really ps me off.

Mystyblu · August 3, 2005

Its’ been a while ago but I was watching one of those shows. (20/20 or 60 minutes can’t remember which) They had a segment where they took a couple cute skinny young women and they sent them to several different places. Places like restaurants, stores and job interviews. Then later they changed their appearance and dressed them up in suits so it looked like they were at least 100lbs overweight and sent them to the same places. Just imagine the shock and horror of finding out that weight discrimination really exists in the world. (Oh my, I could have told them that.) Now these were the same bubbly, energetic and outgoing woman on the inside as before but those same people treated them different now that they were perceived as overweight. As the show went on women’s personalities began to change. They weren’t feeling as self-confident as before.

_____

Hopeful January 06 banding

j_war06 · August 3, 2005

Yes, I think I may have saw part of that report. It's great that other people are realizing that its real

hagerteresa · August 3, 2005

I was heavy all thru my childhood and was beaten up on, teased, tormented, etc that entire time from 1st thru 12th grade. Worst yet I was in the same school district in a small town that entire time so the same kids that picked on my in 1st grade were the same ones still doing it in 12th grade. I realized right after graduation, life would never be the same. I have never been picked on or insulted so much again in my life. I'm sure there have been people who have looked at me belittling or degrading since then and have even gotten some pity looks but nothing dramatic enough for it to matter to me. I don't know if I've ever been discriminated against in regards to jobs or services. I'm sure its possible but I've certainly never had any proof and rarely have suspected foul play in regards to my weight. I learned thru out the grade school years that sure life has moments that suck big time but you got to get over it and enjoy the good moments. You'll deal with that your entire life. It may not always be weight related but there are moments that life truly does SUCK because of one situation or another. You just have to believe that you WILL get thru it. I have heard of cases in recent years where a parent of a teased child sues over the abuse, but honestly I dealt with that kind of teasing and bullying for a long time and I truly feel like I persevered and am better for it. I know people that hit a bump in the road in their life and its a major catastrophie in their eyes. I hit a bump and I know its just a bump. Best wishes, Teresa