Academic journal article Southern Law Journal

Too Fat for Me: Obesity Discrimination in Employment

Academic journal article Southern Law Journal

Too Fat for Me: Obesity Discrimination in Employment

Article excerpt

I. INTRODUCTION

"You can have hcr; I don't want her. She's too fat for me!" These were the words of a popular song in 1938; it probably was not intended to be hurtful, just funny. But "too fat for me" is not funny anymore. Obesity among the population in industrialized countries is one of the most serious public health threats of the modern era. Although many developed countries face this public health dilemma, the United States population actually has the highest prevalence of obesity among developed nations.1 It has not been disputed that there is a bias against fat people in modem American society.2 "Many have called anti-fat bias one of the last acceptable prejudices.3" "While mainstream society condemns (and sometimes makes illegal) racism, sexism, and, to a lesser extent, homophobia, weight-based prejudice is freely exhibited in public, and often by members of the media."4 This stigma exists despite the fact that a majority of Americans are now defined by the medical community as overweight or obese.5 One commentator has argued that allowing fat people to recover for obesity discrimination would "hinder the construction of negative social norms around obesity."6 Apparently he believes that condemning and ostracizing overweight people will encourage them to lose weight, although that plan has not worked for hundreds of years.

Obese individuals are frequent targets of weight-based discrimination. Recent national estimates show that the prevalence of reported weight discrimination among obese individuals has increased by 66% over the past decade7 and is now comparable to rates of racial discrimination in the United States, especially among women.8 Obese individuals are vulnerable to weight discrimination in many domains of daily living, including educational institutions, health care facilities, public accommodations, and the workplace.9 The presence of weight discrimination in employment settings has been particularly well documented and shows that obese employees face unfair hiring practices, prejudice from employers, lower wages, harsher discipline, and wrongful termination compared with thinner employees.10 In addition to the financial consequences of these inequities and unfair treatment, being a target of weight discrimination increases the risk for negative outcomes including depression, social rejection, anxiety, suicidality, avoidance of health care, and unhealthy behaviors that can reinforce weight gain and impair weight loss." With two-thirds of Americans now overweight or obese,12 millions are vulnerable to weight discrimination and its numerous consequences for psychological, social, economic, and physical well-being.

This article will first illustrate the economic impact of obesity on individuals and on our economy. In the Legal Perspective section we will review the ADA, ADAAA, the EEOC guidelines, and the current litigation defining obesity as a disability under the ADA. Most courts have permitted obesity to be defined as a disability only when the person is morbidly obese or when there is a physiological cause for the obesity. This article suggests that obesity could be analyzed similarly to an addictive disorder to determine if there is a disability. The fourth section of the article will review and analyze the managerial implications for obesity discrimination in employment.

II. THE ECONOMIC IMPACT OF OBESITY

The trend towards higher levels of obesity and overweight in the world and in the United States specifically is well known and, sadly, striking. Using data from 2008, when all 191 countries in the world are ranked from largest percentage of the population classified as obese to the lowest, the U.S. occupies the 18th position, with a percentage of 33%.13 The next Western European country on the list is the United Kingdom at 26.9% while the lowest European rate is Switzerland at 17.5%.14 For the United States, the trends towards higher rates of obesity is conspicuous. In 1960 to 1962, the percentage of adults in the United States classified as obese or extremely obese was 14. …

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