A Historical Analysis of Public Health, the Law, and Stigmatized Social Groups: The Need for Both Obesity and Weight Bias Legislation

Authors


(jennifer.pomeranz@yale.edu)

Abstract

History teaches that discrimination against socially undesirable groups leads to societal and governmental neglect of the stigmatized group's health problem. By placing weight discrimination in a historical context, this article demonstrates that legislation specifically aimed at rectifying obesity is less likely while weight bias is socially acceptable. Beyond obesity legislation, public health professionals may consider advocating for legislation directly targeting discrimination based on weight. This article reviews the history of discrimination against distinct groups and provides statutory solutions for discrimination based on weight. In addition to revising current statutes and regulatory rules, a unique statute targeting weight bias in the employment context is considered.

A historical look at public health efforts reveal the necessity of public support for the enactment of legislation aimed at alleviating health disparities of a stigmatized group. Elected officials base action and inaction on their constituents' support of public health measures. Discrimination has been used as an excuse for inaction in the past and impedes genuine efforts to solve health disparities. Therefore, when discrimination is socially acceptable, those afflicted are necessarily at a disadvantage and their suffering is compounded due to institutionalized bias.

On a societal level, public health experts have concluded that obesity in the United States is the result of a pervasive unhealthy food environment, structural inadequacies of the built environment, and a diminished necessity for physical activity (1,2,3). External influences in our living environment are the one aspect of modern life that has categorically changed over the past several decades. Our basic biology, psychology, and genetic makeup have not changed, nor has people's “personal responsibility” for their own well-being (1). Experts agree that even given that certain persons have a genetic predisposition toward obesity, and others are more biologically or psychologically inclined toward overweight, it is the current environment that has triggered the radical shift in weight on a population level (4,5).

Until very recently, obesity predominantly affected minorities (6) and individuals living in lower socioeconomic neighborhoods (7), to an extent due to these neighborhoods' correlation with fewer grocery stores carrying fresh produce (8), more fast food restaurants and liquor stores (9), and reduced access to recreational facilities (10). This modern reality has appropriately been called a “toxic environment” and is a major cause of the increase in obesity in the United States (1). Legislators must believe that their constituencies care about those afflicted in order to enact laws to reverse these developments (11).

On an individual level, obesity is a complex response to social disparities, socioeconomic disparities and overt discrimination (12). Addressing societal disparities is also necessary to address human responses to those disparities, namely discrimination and the embodiment thereof (12). Discrimination manifests in illness and disease that society and governments do not adequately address due to the very discrimination causing the harm (12). On the contrary, society and the government tend to blame the victims and enact and interpret legislation based on the theory that the people are not taking appropriate responsibility for their own health (13). Obese individuals internally suffer from weight bias (14) but also suffer because society blames them for their illness and thus relinquishes responsibility of addressing the underlying causes of their obesity. Therefore challenging weight bias is necessary to induce social support for government action to rectify the toxic environment, disparate treatment and resulting embodiment of the former two.

Historically, governments have not responded to diseases and public health crises when those afflicted were stigmatized. By comparing the historical discrimination against African Americans and homosexuals to present weight discrimination, the first part of this article intends to demonstrate the need for an alignment of science and public support to induce the government to address health disparities of stigmatized groups. These examples do not intend to compare the relative atrocities endured by the different groups discussed. Rather, the information is presented in chronological order in an effort to demonstrate that government action reflects social thought, and historically they have been both consistent and ineffective in responding to health concerns of socially undesirable groups. Several distinct parallels can be drawn between the historical treatment of African Americans and homosexuals by society to the treatment of obese individuals today.

Discrimination against stigmatized groups perpetuates the disparities already prevalent in their lives. These disparities are not addressed appropriately by the government unless political support can be galvanized, which has been historically difficult for socially disadvantaged groups. Historically, those in power have advocated education and separation as a solution to the health problems of stigmatized groups—neither of which actually addresses the cause of increased incidence of disease and both of which results in increased discrimination. As discussed below, although the response to obesity is similar to that of other public health problems effecting stigmatized groups, obese individuals suffer discrimination in distinctive forms. Due to this reality, this article concludes with a discussion of relevant statutory options specifically targeting weight bias that may be necessary to implement.

Separate and Unequal

Slavery was abolished in the United States in 1865.1 However, African Americans continued to suffer largely due to unchanged negative attitudes by society and those in power. Starting in the 1880's, a majority of the states enforced social segregation through what was called “Jim Crow” laws. The most common of these laws forbade intermarriage between the races and ordered business owners and public institutions to keep their black and white clientele separate. In the 1896 case of Plessy v. Ferguson, the US Supreme Court held that racial segregation in public accommodations was constitutional based on the premise that the races were separate but equal.2 The majority explained that “the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority … [is] solely because the colored race chooses to put that construction on it.”3 This victim-blaming attitude directly contravened the true purpose of the Jim Crow laws. As Justice Harlan said in his dissenting opinion: “Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.”4 Because it was socially acceptable to discriminate against African Americans, the legislators were empowered to pass discriminatory laws and the Court felt comfortable overlooking the inequality that resulted.

A passage of Plessy v. Ferguson demonstrates the significant impact public opinion has on legislation but also the folly of allowing that to influence the law when it comes to individual rights. The majority in Plessy v. Ferguson stated that:

  • The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals. … Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.5

However it is clear that legislation is not only necessary but sometimes imperative to give groups equal standing in society. Without the enforced commingling of different groups in public places, whites could remain comfortable with the view that “separate but equal” was equal. Further, their prejudices against the African Americans due to lack of social contact may not have lifted without the ban on segregation.

Despite the majority's opinion, the separate accommodations were not equal. There were separate and unequal hospitals, schools, water fountains, subway cars and the like—all to the disadvantage of the African-American population. During this period and largely as a result of their separate and unequal living conditions, African Americans disproportionately experienced illnesses associated with their extreme poverty, lack of access to health care, and the outright discrimination they faced. For example, in Richmond, Virginia, African Americans only comprised 38% of the city's population but they accounted for 57% of the city's deaths from tuberculosis (15). Rather than investing any of the city's resources in research, prevention, or treatment of tuberculosis among African Americans, the Mayor issued “a warning against the indiscriminate employment of negroes in our households” (15). Because those afflicted were stigmatized, society and the government did not address the African Americans' health concerns appropriately.

In the absence of genuine science explaining the health disparities between the races, experts in the fields of statistics (16) and public health (17) added to the institutionalized racism at the time by touting the theory that African Americans were an inherently weak race. In 1914, Allen presented at the General Sessions of the American Public Health Association on the topic of “The Negro Health Problem;” (17) his position became the dominant theory of that time. He explained that it “is the lack of physical and moral cleanliness that causes the death-rate to be so much more among the negroes than it is among the whites” (17). The doctor attributed the African American's illnesses to their “lack of self-control,” failing in cleanliness and chastity, and on the fact that their homes were too small and their schoolhouses too dirty (17). Allen's proposed solution to these disparities was to give the African Americans “an education that will take the place of the discipline which he received in slavery times” in order to teach “good character, good habits, and skill” (17). Allen's solution was to teach the oppressed group personal responsibility. There was no mention of a need to better the African American's living conditions or rectify economic disparities. Instead he wanted to discipline them into being healthy. Focusing on education alone has been considered a form of victim-blaming (13) and is unlikely to effectively change health disparities without also focusing on changing the social and economic environment.

In the 1930's prominent health practitioners finally began to conclude that it was not inherent racial characteristics but the low economic status due to separate living conditions that accounted for the higher illness rates of African Americans (18). It took two decades for the law to reflect this reality. In the 1954 case of Brown v. Board of Education, the Supreme Court declared it illegal to deprive African American's equal access to public institutions.6 This landmark case overturned Plessy v. Ferguson and paved the way for significant opportunities in society for equal justice, fairness, and education. This also allowed for the possibility of equal access to health care for the first time. This was a very extreme case of intensely embedded discrimination and it took almost one hundred years for attitudes in the United States to change in order for meaningful science and the appropriate laws to transpire.

As explored further below, there are several parallels between the historic treatment of the health problems of African Americans and those of obese individuals today. As with African Americans, obese individuals have been blamed for their health disparities, resulting in increased bias against afflicted persons. Due to this discrimination, the condition of obesity is not being addressed on par with nonstigmatized medical conditions. Policymakers have focused on education as the primary response to the public health crisis, while economic and social disparities are rarely addressed.

It is Illegal to be You

Antigay sentiments in the United States, as evidenced by the increasing enactment of antisodomy laws criminalizing same-sex relations,7 provided the background for the HIV-AIDS epidemic in the 1980's. Acquired immune deficiency syndrome was first identified as such in 1981,8 but it took several years for scientists to understand how the disease was (and was not) transmitted. The time in between was marked with considerable fear and panic due to misunderstandings of the disease. AIDS was first reported as a disease only present in the gay community and as such it was inappropriately labeled the “gay plague.” (19) Other high-risk groups were subsequently identified (20), but the lasting stigma associating the disease with the gay population did not recede. The AIDS epidemic exposed latent intolerances and also resulted in increased discrimination against the gay community (21). Reports of discrimination against AIDS victims, and particularly gays, in housing and employment were increasingly common (22).

Political analysts believe that these sentiments influenced the Presidential Administration's failure to respond appropriately or urgently to the epidemic due to the stigmatization of those afflicted. Congress moved three times to appropriate research funds for HIV-AIDS but the Administration requested none and suggested money should be taken from other health projects (23). The chairman of the House subcommittee with jurisdiction over federal AIDS funding expressed the prevailing sentiment that AIDS never received the attention it deserved from the federal government because ∼75 percent of the victims were homosexual men (21). Conservative groups pointed to a failing in personal responsibility, calling AIDS “a behaviorally induced disease” (24). Some argued that money allocated to addressing the epidemic was simply “a commitment to spend our tax dollars on research to allow these diseased homosexuals to go back to their perverted practices without any standards of accountability” (23).

Conservative doctors, lawyers and legislators openly supported antisodomy legislation (23) and police began enforcing laws already in place (25). A gay man arrested under Georgia's sodomy law for having consensual sex in the privacy of his home challenged the constitutionality of the statute in the case of Bowers v. Hardwick.9 The Supreme Court took the case and, as the Washington Post reported it, brought itself “into a major gay rights controversy at a time when antihomosexual sentiment appears to be rising nationwide as a result of concern over AIDS” (25). In Bowers, the Court found that laws criminalizing consensual homosexual sodomy were constitutional and stated that the popular sentiment about the immorality of homosexuality is adequate to validate the law.10 As one Justice looking back on this case later stated, “there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.”11

As cases of HIV-AIDS started reaching diverse populations and locations, the stigma associating gays with AIDS began to dissipate. Originally thought of as a uniquely urban disease, AIDS cases were reported in small rural towns across the country (26). When celebrities like Rock Hudson, and children like Ryan White were afflicted, compassion began to trump intolerance (24). Due to the federal government's perceived absence in working on a solution to the epidemic, state and local governments, private businesses, nonprofit groups, hospitals and physicians began to intervene to create local laws, regulations, and health care and educational measures (26). The country rallied around the prevention, treatment and care for AIDS patients.

In 2003, with AIDS out of the spotlight, the Supreme Court accepted another case based on the criminalization of consensual sex between two men, Lawrence v. Texas.12 This time finding the law unconstitutional, the Court's opinion reflects a general shift in public opinion about the gay community. The majority explained that Bowers v. Hardwick had been widely criticized and since that case, of the 25 states that had laws prohibiting any kind of sodomy, only thirteen states had them in 2003 and of that, only four were directed solely at homosexual conduct.13 The majority overruled Bowers and stated that when “homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”14

Even the dissenting opinion in Lawrence confirms that the majority's holding reflects the shift in public perceptions. Justice Scalia's dissent ironically echoed the opinion of Plessy v. Ferguson by explaining that “[m]any Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home.”15 This is very similar to Plessy's majority statement that social prejudice cannot be overcome by legislation and “equal rights cannot be secured … by an enforced commingling of the two races.” 16 Justice Scalia attributed the majority's opinion as a “product of a law-profession culture, that has largely signed on to the so-called homosexual agenda.”17 However, he admitted that social perceptions change over time as attested to by the fact that relatively few states still criminalized private consensual homosexual acts.18 As social perceptions evolved, so did the law.

As with HIV-AIDS, obesity has been dismissed as a result of personal failing and the victims have been stigmatized. The federal government has not funded solutions based on the best science, so like with AIDS, local governments and nonprofit groups have needed to step in with their own strategies. Like gays, obese individuals are the subject of discrimination in many spheres of daily life and it is not per se illegal to discriminate against them. This reality will be explored in depth below.

Lessons for Obesity

In the case studies above, the Supreme Court was responsible for both sanctioning discriminatory laws and then overturning the laws, thereby reducing the institutionalized bias against the afflicted group. Both cases reflected a lack of public support for the stigmatized group which provoked legislators to legalize invidious discrimination. This in turn allowed society to blame the victims for their own health disparities and point to failings of personal responsibility as the source of their health problems. Only after public opinions began to change and the realization that the distinctions were in fact discriminatory, did the Supreme Court readdress the same laws to protect the disadvantaged minority. In the cases discussed above, the stigmatized group suffered health problems that were not addressed appropriately due to this outright discrimination. It took public attitudes to change for the government to address the health disparities associated with the disadvantaged group.

As explored below, the situation with obesity is similar but different from the cases above. Like the health problems of the groups discussed above, many argue that obesity is due to a failing of personal responsibility.19 Under this theory, obesity is ostensibly the obese person's fault so weight bias becomes acceptable and commonplace. As with the cases above, the resulting bias is used as an excuse by both society and the government to not address health and economic disparities associated with obesity. As a result, there is insufficient support for public health measures addressing obesity to the degree it must be addressed. Keeping with history, educational interventions have been the primary response by many government entities.

However, unlike African Americans and gays, obese individuals have generally not been the subject of discriminatory laws aimed at depriving them of their civil rights. Nonetheless, obese persons have suffered from social and institutionalized biases that need to be addressed in their own unique form. As such, antidiscrimination legislation may be necessary.

Weight Bias Today

Obesity has been a public health problem long before the Surgeon General's 2001 “Call to Action to Prevent and Decrease Overweight and Obesity.”20 Even if this Call to Action can be considered the country's wake up call, our government has not risen to the challenge. Since 2001, Congress made a strong showing to confirm that obesity is not their problem, despite the fact that the federal government is responsible for America's food supply through economic incentives for the production of certain obesogenic commodities, the direct provision of food, school nutrition, taxation, the regulation of nutrition facts and information, and the regulation of advertising, among other things. (Local governments play a larger role in zoning, land use, and nutrition and physical education.)

Ignoring the fact that the government has the power to enact legislation and regulations that can address the toxic food environment and increased prevalence of obesity, Congress put major efforts into supporting the food industry by proposing and debating a bill called the “Personal Responsibility in Food Consumption Act” (27). The purpose of this legislation was to shield fast food restaurants from being sued by overweight individuals claiming civil damages. This legislation was introduced in the House in 200421 and again in 2005,22 and a similar bill, the “Commonsense Consumption Act,”23 was introduced in the Senate in 2005. Although commonly referred to as the “Cheeseburger Bill,” the name of the legislation exposes the legislators' sentiments on the subject of obesity. As one congressman supporting the legislation stated: “This bill is about self-responsibility. If you eat too much, you get fat. It is your fault. Don't try to blame somebody else.”24

With complete disregard for the reality of economic disparities and the toxic food environment that makes up our society, one state Representative stated: “It is clear that obesity is a problem in America. Equally clear, however, is the simple availability of high-fat food is not a singular or even a primary cause.”25 In agreement, another Representative stated that critics of the legislation “expect the government to take over personal responsibility.” He continued:

  • The victim always finds someone else to blame for his or her own behavior. And what this bill does is that it says, do not run off and file a lawsuit if you are too fat and you end up getting the diseases associated with obesity. It says, look in the mirror, because you are the one who is to blame.26

It is ironic because he acknowledged that overweight people are victims but still supported the view that it was their own fault.

The original federal bill ultimately failed, but from 2003 to 2006, twenty-four states enacted similar legislation shielding fast food establishments from liability (28). Instead of focusing on the prevention or treatment of obesity, almost half of the states in the country took the time and energy to close an avenue of potential legal recourse. Supported by this reality, the Commonsense Consumption Act was reintroduced on May 7, 2007, in both the House27 and the Senate.28 This bill takes away the ability to bring a potentially valid lawsuit, which one could consider uniquely discriminatory if not for the fact that there is legislative precedence for this action. In 2005, Congress passed and the President signed a law making it illegal to sue gun manufacturers for the misuse of a firearm.29 The Supreme Court has not ruled on the constitutionality of these types of laws but federal district courts to consider the gun law found it constitutional.30

Those in the federal government may respond to the above by pointing to federally funded nutrition education programs31 estimated to cost $1 billion in 2007 alone (29). While these efforts ostensibly attempt to make positive change, reliance on education alone has been shown to be ineffective to change behavior.32 By instructing individuals to make changes (e.g., eat an apple instead of French fries) without changing the environment to make these changes possible (e.g., make an apple cheaper than French fries), education alone can be considered a form of victim-blaming (13) and is unlikely to effectively change health disparities. This response did not cure tuberculosis in the African-American population 100 years ago, and it will not rid the country of obesity.

The federal government's focus on lifestyle changes and individual behavior functions to divert attention from the lack of consideration and funding for effective public health initiatives and preventative measures for obesity. The pervasive stigma attached to obesity partially allows this to remain true. If obesity was not stigmatized and the public was more concerned about those afflicted, elected officials would respond appropriately to the public health crisis at hand. Instead of relying on and responding to the best science on the subject of obesity, government action has been based on the dearth of public support for public health measures designed to address the causes of obesity.

In the absence of federal policy addressing obesity, state and local governments and nonprofit groups have been addressing the issue, like they did with the AIDS epidemic. For example, Connecticut33 and Kentucky34 have state-wide healthy regulations for the beverages that can be sold in public schools. New York City35 and Kings County, Washington36 were the first local districts to enact menu labeling laws. Like with HIV-AIDS, obesity is starting to reach diverse populations, income levels and age groups. Now that children are showing signs of obesity related diseases, Americans have expressed sympathy for this young group of overweight individuals. As a result, in 2007, there was an increase in support for federal legislation addressing improved school nutrition.37 Although these efforts have been impressive, a major shift must take place to induce national response and meaningful federal legislation addressing the entirety of the problem.

State and local nutrition and food policies may decrease the incidence of obesity but not the face of it. The people who suffer from the disease may remain stigmatized despite this growing implementation of much needed policy. Therefore, there is the additional need to address weight bias on its own right in areas that such discrimination is both present and detrimental.

Statutory Solutions for Weight Discrimination

Beyond obesity and nutrition policy, addressing weight discrimination is a further challenge because public support is similarly necessary to enact antidiscrimination legislation. However, because obese individuals have experienced discrimination in forms unique to their situation, and different from the groups discussed above, a review of laws specifically addressing discrimination is necessary. Although to date, gays have not received protection at a level akin to African Americans, other groups have been the beneficiaries of antidiscrimination legislation. Taking lessons from these groups, the public health community should be advocating for both obesity and food policy, and also antidiscrimination legislation. This could alleviate some of the institutionalized bias and result in making obesity policy more likely.

It is not illegal to discriminate against people based on their weight under the Constitution or federal law. There are several avenues to address the discrimination of distinct groups, but people who have attempted to use these avenues to bring claims of weight discrimination have been largely unsuccessful. None of the existing federal laws specifically target discrimination based on weight and only a small handful of local laws address weight bias. A look at the current state of the law leads to the conclusion that new legislation is necessary to protect people treated unequally due to their weight.

The equal protection clause of the US Constitution affords protection to people from the unequal application of the laws by the state.38 This has been interpreted to provide strict protection against government distinctions based on the “suspect classes” of race, ethnicity, religion and national origin and intermediate protection against government distinctions based on gender and illegitimacy. The Equal Protection Clause also strictly protects rights that have been deemed “fundamental rights” by the Supreme Court. Fundamental rights include rights explicitly set forth in the Constitution and the Bill of Rights (e.g., freedom of speech and freedom of religion),39 and those the Supreme Court identified as fundamental, such as the right to procreate and the right to travel between the states.40 The Court explicitly affirmed that there is no fundamental right to public education,41 housing,42 employment,43 or health care (30). Unfortunately, these are areas where obese people have reported the most discrimination (31).

When a law is not targeting the class of citizens defined above, or burdening a fundamental right, the legislative classification need only be rationally related to a legitimate government purpose.44 Most laws pass this test, “even if the law seems unwise or works to the disadvantage of a particular group.”45 One law that did not pass the rational relationship test was an amendment to the Colorado Constitution that the Supreme Court found deprived gays and lesbians of basic legal protections.46 The Supreme Court explained that a law singling out a certain class of citizens for disfavored legal status offends the Equal Protection Clause.47 Therefore, the rational relationship test “must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate government interest.”48

If a law is enacted for the purpose of depriving obese individuals' equal protection of the law, there would be a viable legal challenge to its constitutionality. Unlike African Americans and homosexuals, obese persons have generally not been the subject of discriminatory laws. However, a bill recently proposed by three members of Mississippi's State House of Representatives, making it illegal for restaurants to serve obese customers, would be one such law.49 This parallels the Jim Crow laws in its effort to legalize social segregation to the disadvantage of the less desirable group. Notwithstanding the House members' claim that the purpose of the bill was to bring attention to the obesity problem in their State,50 the fact that this law was even proposed, shows the necessity of antidiscrimination efforts. Despite the introduction of this law, most discrimination obese people face is due to discriminatory practices by employers, medical professionals, health insurance companies, family members and peers (31).

Congress and local governments can legislate in an effort to prohibit discriminatory private practices. The Civil Rights Act of 1964 extends federal equal protection to discriminatory practices of private employers and places of public accommodation based on race, color, religion, sex and national origin.51 States have their own civil rights statutes but only Michigan's civil rights law extends these protections to discrimination based on weight. The Michigan statute provides that, “the opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and education facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, familial status, or a civil right.”52 San Francisco53 and Santa Cruz54 have city ordinances with the same purpose that have been used to improve accommodations for larger people (32).55 The District of Columbia56 has a law that prohibits discrimination based on “personal appearance” but there are many exceptions to the prohibition.57 With the exception of potential plaintiffs in these jurisdictions, people who have been discriminated against based on their weight have little legal recourse. One way states can protect their citizens against weight discrimination is to follow the lead of Michigan and revise their antidiscrimination laws to include weight as a protected class.58

It would also seem that one way to extend civil rights' protection to obese people would be to amend the Civil Rights Act of 1964 to include weight as a protected category. However, the federal Civil Rights Act has been amended several times and no class has ever been added for protection beyond the original five. It is arguable whether adding another category is politically feasible, but precedence teaches that it would take more public support to include weight as a protected category under the Civil Rights Act than to include this category in state antidiscrimination laws or to create a unique federal statute targeting weight discrimination in specific venues.

For example, the Supreme Court declined to extend heightened scrutiny to classifications based on age or mental or physical disability,59 but Congress passed legislation to address these groups' disparate treatment.60 The Age Discrimination in Employment Act of 1967 (“ADEA”) prohibits employers from discriminating on the bases of age (over 40 years old).61 The American with Disabilities Act (ADA) of 199062 and the Rehabilitation Act (“RA”) of 197363 prohibit discrimination of people with mental and physical disabilities in employment, public services, and privately owned accommodations. The ADA prohibits discrimination by the private sector and state and local governments, while the RA addresses federal entities.64

Although obese people report discrimination in places of employment, privately owned accommodations and public services, research shows that the area of employment warrants particular attention. In order to enact protective legislation, the legislature must find that discrimination against such individuals exists. Studies confirm that obese persons are less likely to be hired, are more harshly disciplined, paid less, and have been terminated for failure to lose weight (33). Obese people have also reported purposeful discrimination in this area (33). Further, employment is universally recognized as a human right65 and is necessary for socioeconomic stability and often health care coverage. Because Congress has legislated in the field of employment discrimination several times prior, this is a viable area to address other victims of such discrimination.

Because the current state of the law does not provide appropriate protection against weight discrimination in the area of employment, people who have been mistreated have attempted to sue under existing provisions, with little success. The largest legal avenue that persons who have been discriminated against based on their weight have attempted to seek recourse is under the ADA. The initial and very significant drawback of suing under disability provisions is that a potential plaintiff must claim that he or she is either disabled or regarded as disabled in order to prevail. The ADA defines disability as:

  • (A)a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
  • (B)a record of such an impairment; or
  • (C)being regarded as having such an impairment.66

In terms of employment, the ADA provides that individuals with a disability shall not be discriminated against “in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”67 People can either claim that their obesity is an “impairment” under prongs (A) or (B) or that it is “regarded as” an impairment under prong (C) of the ADA.

Under prongs (A) and (B), most courts that have addressed lawsuits claiming discrimination based on weight have found that obesity is not considered a disability and thus not subject to protection under the ADA (32). The Equal Employment Opportunity Commission (“EEOC”)'s regulations define “impairment” as a “physiological disorder, or condition.”68 Although the Supreme Court has not expressly followed the EEOC's regulations, it, like other courts, use them as guidance. Thus, most courts to consider this question have found that that to constitute an ADA impairment, a person's obesity, even morbid obesity, must be the result of a physiological condition (like diabetes).69 If scientific advances reveal that obesity is actually the result of physiological genetic, biological or psychological conditions, then courts would presumably be hard pressed not to interpret the ADA more favorably for obese plaintiffs.

Whatever the cause, if Congress wanted to include obesity as a protected category under the ADA, it could amend the ADA definition of disability to explicitly include obesity or the EEOC could take it upon itself to redefine “impairment” to include obesity not based on a physiological condition. This would still require people to allege that they are actually disabled when bringing suit under the ADA. However, morbidly obese individuals who are disabled due to their weight should be covered by the ADA like any other disability. There is no requirement that a disability must be due to events out of one's control, as persons who become disabled due to self-inflicted accidents are covered by these provisions. Obesity-induced disability should likewise be covered.

One would expect that a reliable way to bring a lawsuit under the ADA would be under prong (C), defining disability as being “regarded as” impaired; however, case law reveals that this is not a viable option. The Supreme Court considered a claim under this perceived disability section and explained that there are two ways that an individual may fall within this definition:

  • 1a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or
  • 2a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.70

Courts have interpreted this ruling to find that in both of the two categories, the perceived physical impairment must be one that is covered under the Act (34).

Courts have stated that to be successful when pursuing a “regarded as” claim, an employee must allege that he was perceived to have an impairment protected by the ADA, rather than a disability not named in the ADA that is perceived by the employer to be limiting.71 The Supreme Court held that if a physical characteristic is not an ADA impairment, an employer is permitted to prefer one physical characteristic over another.72 As discussed above, courts to consider this question have found that that to constitute an ADA impairment, a person's obesity must be the result of a physiological condition.73 Thus, for most cases, obese individuals cannot claim that an employer discriminated against them because their obesity was regarded as a disability. One federal circuit court to consider this issue explained that to hold otherwise, would result in the “operation of the ‘regarded as' prong, [to] become a catch-all cause of action for discrimination based on appearance, size, and any number of other things far removed from the reasons the statutes were passed.”74

If Congress or the EEOC changed the definition of disability or impairment to include obesity not due to a physiological impairment, a person would be able to sue under the “regarded as” prong when they have been discriminated against based on perceived inabilities stemming from their weight. This would be a less stigmatizing way that obese people who are not so impaired, but have been treated as if they were, could proceed under the provision that outlaws discrimination of a perceived disability. Actions under this section may actually expose discrimination by employers75 who consider obese individuals unqualified simply due to their body weight.

In addition to revising the ADA and RA to include impairments based on weight as a disability or perceived disability, Congress has it in its power to enact a statute specifically targeting weight discrimination in employment. Recall that even though the Supreme Court declined to extend heightened scrutiny to differential treatment based on age,76 Congress instituted the ADEA.77 The Supreme Court confirmed that the ADEA constitutes a valid exercise of Congress' power under the Commerce Clause.78 Therefore, one legislative option to address weight bias would be to craft an Act modeled after the ADEA that makes it illegal to discriminate against people in the employment context based on their weight. The proposed act could be called the Weight Discrimination in Employment Act (“WDEA”).

In the Congressional statement of findings for the ADEA, Congress declared that “the existence in industries affecting commerce, of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce.”79 The same is true for discrimination based on weight. Studies show that obese employees get lower wages for the same job performed by nonobese counterparts, fewer obese employees are hired to high-level positions and fewer obese employees are granted promotions (31). This clearly burdens commerce especially in light of the fact that roughly one-third of our population is obese (35).

The ADEA makes it unlawful for an employer:

  • 1to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;
  • 2to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or
  • 3to reduce the wage rate of any employee in order to comply with this Act.80

The exact same prohibitions with respect to obesity would help rectify much of the intentionally discriminatory practices obese people face.

The Supreme Court's analysis of the ADEA is instructive of how courts would interpret the WDEA because when Congress uses the same language in two statutes with similar purpose, the Court presumes that Congress intended the texts to have the same meaning.81 Using this method of statutory construction, the Court would find the WDEA should be interpreted similar to the ADEA.82

The ADEA has been interpreted to prohibit both intentionally discriminatory practices that “limit, segregate or classify83 people, and also “facially neutral practice[s], adopted without discriminatory intent84 that nonetheless deprive people of employment opportunities or otherwise adversely affect their “status as an employee.”85 This means that valid claims under these employment discrimination statutes can be made by showing discriminatory intent, or by showing “disparate impact.”86 A disparate impact claim involves employment practices that are facially neutral in their treatment of different groups, but actually fall more harshly on one specific group.87 In order to make a valid claim of disparate impact, a plaintiff must isolate and identify “the specific employment practices that are allegedly responsible for any observed statistical disparities.”88 It is noteworthy that a court will not find disparate impact if the adverse impact was attributable to a nonweight fact that is considered “reasonable.”89

A WDEA is feasible legislation. If modeled after the ADEA, the Supreme Court should find it a valid exercise of Congress' powers under the Commerce Clause and interpret it similarly to the ADEA. A drawback of only having a federal WDEA is that the ADEA has been interpreted to not apply to state employers.90 (State employers do not include counties, municipalities or cities that are “not an arm of the State.”91) However, although state employees cannot sue state employers for age discrimination under the ADEA, they can seek relief under state discrimination statutes.92 Therefore, it is necessary for states to concurrently enact state-WDEA statutes if they do not include weight in their state civil rights statutes as Michigan has done.

A possible resulting benefit of a WDEA would be the forced “commingling” of weight biased persons with obese workers. Although it may be true that legislation is powerless to eradicate initial biases, a WDEA would result in the realization by employers and co-workers that obese people are fully capable of contributing to society at the same level as nonobese persons. This could result in reduced weight bias nationally and an increased opportunity to enact public health legislation addressing obesity. With a WDEA, some social prejudices could potentially be overcome by legislation.

Conclusion

There is never an appropriate justification for treating a group of individuals poorly. Stigmatization hurts on an individual level and on a societal level. Weight bias perpetuates institutionalized problems that make it difficult to address the health disparities relevant to solving the obesity crisis. Obese people, like African Americans and homosexuals, must have equal access to our public and private institutions for our society to advance passed the 19th Century.

Public health advocates are in a unique position with weight discrimination than our predecessors attempting to tackle other forms of discrimination. We are better off because laws aimed at depriving obese people of their civil rights have not been enacted. However, the discrimination obese people face is pervasive in critical social institutions. Because we are not dealing with discriminatory laws, the legal path toward rectifying weight bias is less clear. We must advocate changes in the current laws and push for unique legislation targeting weight biases in certain areas, like employment.

But beyond the law, public health professionals should continue to educate the public on the realities of obesity and weight bias. There is a major distinction between being overweight and being obese or morbidly so; and there is a growing recognition that obesity is difficult to treat with long-term success (36). The toxic environment that we live in must be addressed and the government's role in our wellbeing and lack thereof must not be ignored. Those in the government should not be allowed to turn a blind eye to our current public health crisis simply because current notions of socially desirable traits allow them to do so.

Disclosure

The author declared no conflict of interest.

Footnotes

  • 1

    Slavery was abolished in the United States by the adoption of the Thirteenth Amendment to the Constitution in 1865: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

  • 2

    Plessy v. Ferguson, 163 U.S. 537 (1896).

  • 3

    Plessy v. Ferguson, 163 U.S. 537, 550 (1896).

  • 4

    Plessy v. Ferguson, 163 U.S. 537, 557 (1896) (J. Harlan dissenting).

  • 5

    Plessy v. Ferguson, 163 U.S. 537, 551–552 (1896).

  • 6

    Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

  • 7

    See Lawrence v. Texas, 539 U.S. 558, 570 (2003).

  • 8

    See http:www.cdc.govmmwrpreviewmmwrhtmlmm5521a2.htm (accessed September 15, 2007).

  • 9

    Bowers v. Hardwick, 478 U.S. 186 (1986).

  • 10

    Bowers v. Hardwick, 478 U.S. 186, 196 (1986).

  • 11

    Lawrence v. Texas, 539 U.S. 558, 583 (2003) (O'Connor, J., concurring).

  • 12

    Lawrence v. Texas, 539 U.S. 558 (2003).

  • 13

    Lawrence v. Texas, 539 U.S. 558, 573 (2003).

  • 14

    Lawrence v. Texas, 539 U.S. 558, 575 (2003).

  • 15

    Lawrence v. Texas, 539 U.S. 558, 602 (2003) (Scalia. J., dissenting).

  • 16

    Plessy v. Ferguson, 163 U.S. 537, 551–552 (1896)

  • 17

    Lawrence v. Texas, 539 U.S. 558, 602 (2003) (Scalia. J., dissenting).

  • 18

    Lawrence v. Texas, 539 U.S. 558, 603 (2003) (Scalia. J., dissenting).

  • 19

    For e.g., see the discussion of the Personal Responsibility in Food Consumption Act, H.R. 339, 108th Cong. (2004).

  • 20

    See Office of the Surgeon Gen., Dept. of Health and Human Servs., The Surgeon General's Call to Action to Prevent and Decrease Overweight and Obesity (2001). Available at http:www.surgeongeneral.govtopicsobesitycalltoactionCalltoAction.pdf (accessed September 17, 2007).

  • 21

    Personal Responsibility in Food Consumption Act, H.R. 339, 108th Cong. (2004).

  • 22

    Personal Responsibility in Food Consumption Act of 2005, H.R. 554, 109th Cong. (2005).

  • 23

    Commonsense Consumption Act of 2005, S. 908, 109th Cong. (2005).

  • 24

    151 Cong. Rec. H8927 (Oct. 19, 2005) (statement of Rep. Chabot).

  • 25

    150 Cong. Rec. H956 (Mar. 10, 2004) (statement of Rep. Cannon).

  • 26

    150 Cong. Rec. H963 (Mar. 10, 2004) (statement of Rep. Sensenbrenner).

  • 27

    Commonsense Consumption Act of 2007 (Introduced in House) HR 2183 IH (110th CONGRESS) 1st Session.

  • 28

    Commonsense Consumption Act of 2007 (Introduced in Senate) S 1323 IS (110th CONGRESS) 1st Session.

  • 29

    See Pub. L. No. 109–92, 119 Stat. 2095, Protection of Lawful Commerce in Arms Act, (October 26, 2005).

  • 30

    See City of New York v. Beretta U.S.A. Corp., 401 F. Supp. 2d 244 (E.D.N.Y. 2005); see also, Ileto v. Glock, Inc., 421 F. Supp. 2d 1274 (C.D. Cal. 2006).

  • 31

    See http:www.fns.usda.govfnsnutrition.htm (accessed October 23, 2007).

  • 32

    See id. See also, Diet Education Had No Long Term Impact On Childhood Obesity. Science Daily. 10/9/07. Available at: http:www.sciencedaily.comreleases200710071008193447.htm (accessed October 23, 2007).

  • 33

    Connecticut Public Act No. 06–63 (2006) An Act Concerning Healthy Food and Beverages in Schools.

  • 34

    KRS 158.854 (2005).

  • 35

    See http:www.nytimes.com20070717healthnutrition17cons.html_r1&orefslogin (accessed October 22, 2007).

  • 36

    See http:www.metrokc.govHealthnews07071901.htm (accessed October 22, 2007).

  • 37

    For example, Senator Harkin introduced S.2592: A bill to amend the Child Nutrition Act of 1966 to improve the nutrition and health of schoolchildren by updating the definition of “food of minimal nutritional value” to conform to current nutrition science and to protect the Federal investment in the national school lunch and breakfast programs in the 109th Congress with 13 Co-sponsors. The same bill (S.771) was subsequently introduced in 20007 during the 110th Congress with 28 Co-sponsors.

  • 38

    U.S. Constitution, Amendment XIV § 1.

  • 39

    See U.S. Constitution and Bill of Rights (Amendments I–X).

  • 40

    Lindsey v. Normet, 405 U.S. 56, 82 (1972) J. Douglas, dissenting in part.

  • 41

    San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).

  • 42

    Lindsey v. Normet, 405 U.S. 56 (1972).

  • 43

    In the U.S., unless you have an employment contract stating otherwise, employer-employee relationships are considered “at-will,” which means that either party is free to leave the employment relationship. See King NJ, Pillay S, Lasprogata GA. Workplace Privacy and Discrimination Issues Related to Genetic Data: A Comparative Law Study of the European Union and the United States. 43 Am. Bus. L.J. 79: n.88 (Spring 2006). Because employment at-will is not protected by the Constitution, Bishop v. Wood, 426 U.S. 341, 345–347 (1976), employers are free to discharge of employees as long as the reason for doing so is not based on the employee's gender, race, color, national origin, religion, age, or disability.

  • 44

    New Orleans et al. v. Dukes, 427 U.S. 297, 303 (1976).

  • 45

    Romer v. Evans, 517 U.S. 620, 632 (1996).

  • 46

    Romer v. Evans, 517 U.S. 620, 630 (1996).

  • 47

    Romer v. Evans, 517 U.S. 620, 633 (1996).

  • 48

    Romer v. Evans, 517 U.S. 620, 634 (1996) (internal punctuation and emphasis removed).

  • 49

    See Mississippi's House Bill 282 (HB 282) (2008); discussed at: http:www.telegraph.co.uknewsmain.jhtmlxmlnews20080203wobese103.xml (Accessed February 10, 2008).

  • 50

    See, Lawmaker: Obesity bill won't make it to floor. Clarion Ledger. (2/5/08) Accessible: http:www.clarionledger.comappspbcs.dllarticleAID20080205NEWS0105048020503771001news (Accessed February 10, 2008).

  • 51

    42 USCS §§ 1971 et seq (Pub.L. 88–352, 78 Stat. 241) July 2, 1964.

  • 52

    Elliot-Larsen Civil Rights Act of 2000; Michigan Statutes Annotated § 3.548(102) (Michie 2000).

  • 53

    San Francisco, CA., Police Code art. 33 (2000).

  • 54

    Santa Cruz, CA., Municipal Code ch. 9.83 (1995).

  • 55

    42 U.S.C. § 12102(2)(C).

  • 56

    See D.C. Code Ann. § 2–1401.02 (2001).

  • 57

    See D.C. Code Ann. § 2–1401.03 (2001).

  • 58

    State Representative Byron Rushing recently introduced a bill in Massachusetts making it illegal to discriminate based on size (i.e., weight and height). See MA House Bill No. 1844 (2007).

  • 59

    Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440–441 (1985).

  • 60

    It is noteworthy that it can be argued that these groups have more public support and political favor than obese people and under the current thinking, weight is considered more mutable than the former three categories.

  • 61

    29 U.S.C. § 621 et seq.

  • 62

    42 U.S.C. § 12101 et seq.

  • 63

    29 U.S.C. § 701 et seq.

  • 64

    These provisions are similar and have been interpreted similarly. Thus, the discussion of the ADA applies equally to the RA.

  • 65

    See United Nation's Universal Declaration of Human Rights. Art. 23 and Art. 26. Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948.

  • 66

    42 U.S.C. § 12102(2).

  • 67

    42 U.S.C. § 12112(a)

  • 68

    29 C.F.R. § 1630.2(h).

  • 69

    EEOC v. Watkins Motor Lines, Inc., 463 F.3d. 436, 443 (6th Cir. 2006).

  • 70

    Sutton v. United Air Lines, Inc., 527 U.S. 471, 466–467 (1999).

  • 71

    EEOC v. Watkins Motor Lines, Inc., 463 F.3d. 436, 440 (6th Cir. 2006).

  • 72

    Sutton v. United Air Lines, Inc., 527 U.S. 471, 473 (1999).

  • 73

    EEOC v. Watkins Motor Lines, Inc., 463 F.3d. 436, 443 (6th Cir. 2006).

  • 74

    EEOC v. Watkins Motor Lines, Inc., 463 F.3d. 436, 443 (6th Cir. 2006) citing Francis v. City of Meriden, 129 F.3d 281, 287 (2d.1997).

  • 75

    It is noteworthy that even if a plaintiff can pass these obstacles, to bring a case under the “regarded as” disabled section of the ADA, a person must prove that he or she is regarded as being substantially limited in a major life activity. Murphy v. United Parcel Service, 527 U.S. 516, 523 (1999). The EEOC regulations consider working a major life activity and define “substantially limits” as “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 Supreme Court assumes the validity of the EEOC regulations for purposes of ADA cases. See Murphy v. United Parcel Service, 527 U.S. 516, 523 (1999). Thus, to be regarded as substantially limited in the major life activity of working, one must be regarded as precluded from a class of jobs, not just a particular job. Murphy v. United Parcel Service, 527 U.S. 516, 523 (1999) citing 29 CFR § 1630(j)(3)(i) (1998). The EEOC identifies several factors that courts should consider when determining whether an individual is substantially limited in the major life activity of working, including the number and types of jobs utilizing similar training, knowledge, skills or abilities, within the geographical area reasonably accessible to the individual, from which the individual is also disqualified. See 29 CFR § 1630(j)(3)(ii)(B); see also, Murphy v. United Parcel Service, 527 U.S. 516, 523 (1999) (citing 29 CFR § 1630(j)(3)(i)) (“The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working”).

  • 76

    Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 441 (1985).

  • 77

    See 29 U.S.C. § 621 et seq.

  • 78

    EEOC v. Wyoming, 460 U.S. 226, 243 (1983).

  • 79

    29 U.S.C. § 621(a)(4).

  • 80

    29 U.S.C. § 623(a).

  • 81

    Smith v. City of Jackson, Mississippi, 544 U.S. 228, 233 (2005).

  • 82

    Smith v. City of Jackson, Mississippi, 544 U.S. 228, 233, 240 (2005).

  • 83

    29 U.S.C. § 623(a)(2).

  • 84

    See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 991–992 (1988).

  • 85

    Smith v. City of Jackson, Mississippi, 544 U.S. 228, 235 (2005).

  • 86

    Smith v. City of Jackson, Mississippi, 544 U.S. 228, 235 (2005).

  • 87

    Smith v. City of Jackson, Mississippi, 544 U.S. 228, 239 (2005).

  • 88

    Smith v. City of Jackson, Mississippi, 544 U.S. 228, 241 (2005) (emphasis in the original).

  • 89

    Smith v. City of Jackson, Mississippi, 544 U.S. 228, 239 (2005).

  • 90

    Kimel v Florida Board of Regents, 528 U.S. 62, 91 (2000).

  • 91

    Accenture LLP, v. CSDV-MN LP, No. 06-CV-1270, 2006 U.S. Dist. LEXIS 70225, at *6–7, (N.D. Ill., September 28, 2006).

  • 92

    Kimel v Florida Board of Regents, 528 U.S. 62, 91–92 (2000).

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