The National Pulse

A Matter of Some Weight

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Law professor Paul Campos has this to say to employers, doctors and others who say they worry about employees’ or patients’ weight because of rising health care costs and slipping life spans: baloney.

There is no clear evidence that a person’s size is the primary factor for determining overall health or longevity, says Campos of the University of Colorado at Boulder. “It’s simply not true. Those are just ready-made rationalizations for discriminating against people whose size they find unappealing,” he says.

Indeed, the federal government recently revised its previous position that obesity is the second leading cause of death in the United States, dropping it to seventh overall. The government said a recent study found that carrying some extra weight, especially for those older than 60, can actually lower the risk of dying.

Fighting for their Jobs

Nevertheless, lawsuits alleging discrimination based on weight are increasing, lawyers and other experts say. Plaintiffs are often basing their suits on the federal Americans with Disabilities Act or on human rights ordinances that are in effect in a handful of U.S. jurisdictions.

Plaintiffs in Michigan can cite a state law that bars discrimination against the overweight, and in New Jersey they can base suits on the state’s broad Law Against Discrimination. The New Jersey Supreme Court found in 2002 that the state law could protect a 400-pound woman who was overweight due to a genetic condition. Viscik v. Fowler Equipment Co., 800 A.2d 826.

Washington, D.C., and the California cities of San Francisco and Santa Cruz also include body size in human rights ordinances. The two California ordinances bar discrimination in employment, housing, health care and other services.

Campos is just one of several lawyers lobbying or litigating for the overweight. Plaintiffs attorney Gary Phelan, who has offices in New York City and Stamford, Conn., often represents obese clients, especially in employment discrimination cases. In one important case dealing with ADA protections, he represented a firefighter before the 2nd U.S. Circuit Court of Appeals at New York City.

The plaintiff had been suspended for a day for being over the fire department’s weight limit. The appeals court said the ADA covers obesity if an employer regards it as a physiological impairment or the plaintiff is so morbidly obese that it affects normal life activities. Because the firefighter was fired simply for failing to meet generally applicable weight criteria, his complaint should be dismissed, the court said. Francis v. City of Meriden, 129 F.3d 281 (1997).

Phelan apparently had better success in 2003 when he represented an obese man who wanted to work for McDonald’s. The client, Joseph Connor, was promised a position at the Hamden, Conn., McDonald’s outlet but was told he would have to wait to start the job until a uniform could be specially ordered for him.

Months later, he still had not been given a start date, even though the restaurant had hired several other new employees in the interim, Phelan says. Connor sued the franchise owner and McDonald’s Corp. under the ADA, alleging Connor qualified as a plaintiff under the act because McDonald’s regarded him as disabled due to his weight. The U.S. District Court for the District of Connecticut refused to dismiss the case; it was subsequently settled, according to Phelan. The terms of the settlement are sealed, and Phelan says he cannot comment on the specifics.

Berkeley, Calif., attorney Sondra Solovay worked closely with a San Francisco commission that endeavored to include obesity in the city’s human rights ordinance. That ordinance later helped one of Solovay’s overweight clients, Jennifer Portnick, an aerobics instructor in San Francisco. Portnick, who always received rave reviews from students and fellow instructors, was initially refused a Jazzercise franchise because the company said she didn’t present the sort of fit image the company wanted to portray, according to Solovay. After learning about the San Francisco ordinance, the company settled Portnick’s claim and agreed to allow overweight instructors who otherwise meet fitness tests to buy Jazzercise franchises.

Solovay says most jurisdictions do not protect obesity as a human rights issue, so discrimination is common. Because disability laws protect those with physiological impairments, the morbidly obese are more likely to be protected than the merely overweight. Ironically, disability laws may bar firing an obese employee for perceived notions of inability to do the job but permit discrimination on the basis of looks. “Say you have someone about 30 pounds overweight applying for a clerk job in a grocery store. If the employer says, ‘We’re concerned you won’t be able to climb ladders to stock shelves,’ that person may be able to prove otherwise. But if the employer just says, ‘We don’t want to hire a fat person,’ that applicant may be out of luck because there’s no protected class for obesity,” says Solovay, author of Tipping the Scales of Justice Fighting Weight-Based Discrimination.

Customer Concerns

Employer-employee relationships are not the only area where weight discrimination can be an issue. San Francisco employment lawyer Margaret Grover says employers ask her how to address situations where customers harass employees about their weight. In one recent instance, she says, the employer knew that the employee’s obesity was related to a genetic illness. The employer also knew that state law prevented discrimination based on genetic profiling, and the company was worried that the employee could claim she was subjected to a hostile work environment because the company failed to protect her from customers’ taunts.

Grover says she advised the client to step in, ask offending customers to leave and allow the employee to refuse service to those who called her names. Still, she says, that is an incomplete solution because employers worry about balancing the rights of the employee with the need not to alienate customers.

Another company, Weyco Inc. of Okemos, Mich., made news this year when it made mandatory its employee no-smoking policy, even for workers on their own time. Several employees resigned rather than be fired for refusing to quit. At the time, Weyco’s president, Howard Weyers, was quoted as saying he would consider similar actions with overweight employees. Weyers later said he never intended to imply that he would fire overweight employees, saying he wanted only to encourage healthy lifestyles, according to a statement signed by Weyers on the company’s Web site.

Such a policy wouldn’t be permissible in California, Grover says, where the law provides that employers cannot discriminate against workers for conduct that occurs off the job.

Culture and Consequences

The heart of the legal problem lies with the culture, says Campos, author of the book The Obesity Myth. Society cannot decide whether to classify obesity as a disease or a moral failing, he says. Solovay uses similar terms to phrase the question: Is obesity a choice, or is it due primarily to genetics? “It’s like being gay,” she says. “Those who believe it’s genetic advocate protection for gay rights. Those who insist it’s a choice by and large don’t want to see legal protections.”

Campos sees consequences to the characterization. If obesity is a disease, then health insurance companies might have to pay for treatments to alleviate the illness, and heavy people may be more easily protected under the ADA and similar statutes. If the disease theory holds, it also opens the door to more lawsuits against companies such as fast food providers. That prospect appalls Dan Mindus, a senior analyst for the Washington, D.C.-based nonprofit Center for Consumer Freedom, a coalition of restaurants, food manufacturers and consumers.

“No one should have to spend money defending against moronic lawsuits that assume that people are so dumb that they can’t look in the mirror and see how much they weigh and figure out why,” Mindus says.

If obesity is instead viewed as a moral failing, it would allow nearly unfettered discrimination by health providers, employers, insurers and others, Campos says.

“People make a lot of assumptions based on weight that are simply morally and scientifically bankrupt,” Campos says. “They codify their disgust with other people’s appearance and allow discrimination.”

Solovay worries that society’s condemnation of obesity will lead to ill-advised policies such as removing children who are seriously overweight from parents who are seen as neglectful for failing to control their diet.

Already, some legislatures are using obesity as a basis for public policies. Campos cites the example of some new state laws requiring public schools to measure children’s body mass index the ratio of body fat to overall weight and height and include the information on report cards.

The solution, Campos says, is for the law to take the approach that body diversity is a human rights issue. Legislatures should refuse to make public policy based on concepts of obesity and instead ban discrimination on the basis of body mass, he says. Nor, he adds, is that notion as absurd or far-fetched as it sounds.

“Thirty years ago, it used to be routine in this country to discriminate on the basis of age. We realized the fallacy of the presumptions in that circumstance.”

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