Civil Rights and the

• Author: Sayward Byrd
• Position: Recipient of the Vinson & Elkins Best Casenote or Comment Award for Excellence in Legal Writing, 2003-2004
• Pages: 303-385

Recipient of the Vinson & Elkins Best Casenote or Comment Award for Excellence in Legal Writing, 2003-2004. J.D./B.C.L. Candidate, May 2005, Paul M. Hebert Law Center, Louisiana State University. I would like to thank my husband, who endured his wife's monomaniacal fat tax obsession with remarkable forbearance and impeccable grace, for the invaluable gifts of his insight and support. This paper is dedicated to the memory of my grandfather, Ashby Earl Kelley, Sr., who died July 7, 2004, but whose steadfast and unqualified love continues to light my path in life, even in the dimmed world of his absence. Sln agus beannacht leat, a ghr mo chro.

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Introduction

It is somewhat of an understatement to say that overweight and obese people are presently unpopular in our culture.¹ They are, on the whole, subject to greater expenses, paying more for "plus-sized" clothing, two seats on an airplane (required now by many airlines), and spending on average seven hundred dollars more per year on medical bills, insurance premiums, and co-payments than their thinner counterparts.² Life insurance premiums rise as girth increases.³ Disability insurance for obese people is exorbitant at best and nonexistent at worst.⁴ To make matters worse, studies indicate that a significant wage penalty exists for overweight people.⁵ ObesePage 304 and overweight Americans can make less money than thinner people in the same profession.⁶ To add insult to injury, doctors, lawyers, researchers, and legislators exacerbate the problem and reinforce the stigmatization of fat by proposing "remedies" for the obesity epidemic. Rather, they suggest remedies to deal with the rising cost of obesity. Needless to say, the cost of obesity and its related health consequences, which is currently estimated at around $117 billion per year, is substantial.⁷ These proposed regulatory solutions range from the absurd (e.g., nationally syndicated columnist Dr. Kenneth Walker's suggestion that fat people be put in prison camps)⁸ to the retrogressive (e.g., University of Chicago law professor Richard Epstein's proposal that discrimination against fat people be legalized in insurance, work, and education)⁹ to the seemingly plausible. Among these legislative panaceas are the notions of a "fat" tax on unhealthy foods and an insurance surcharge to be added to the already inflated premiums that overweight people pay.¹⁰ Health and Human Services Secretary Tommy Thompson suggests that insurers comparably raise premium rates for those individuals who can't keep their BMI below thirty.¹¹ This comment will address these regulatoryPage 305 proposals and similar extant obesity legislation within the framework of a traditional civil rights context. Part I of this comment will explore the significant social demographics of obesity, including its increasing incidence in both national and global populations and its alarming nexus to both race and poverty. Part II of this comment will address the various interventions and legislative initiatives employed by both state governments and the federal government in ameliorating the obesity epidemic. In Part III of this comment, the constitutionality and lawfulness of these governmental interventions regarding obesity will be considered. In this determination, a broad civil rights framework will be utilized, and three main methods will be employed: 1) the reason and rationality of such legislative remedies will be addressed under equal protection scrutiny, 2) the disparate impact of obesity regulations on African-Americans, women, and the indigent will be considered within the context of the Civil Rights Act of 1964, and 3) the potentiality of obesity as a qualified disability will be analyzed under the Americans with Disabilities Act and the Rehabilitation Act of 1973. To this end, Part III will focus on litigation under these primary statutory methodologies involving obesity, and will also analogize obesity to other classifications that have invoked successful claims of discrimination using similar modes of address. Part III, therefore, will introduce the three weapons in the legal arsenal that could be used to address potentially discriminatory obesity interventions, to wit: the Civil Rights Act of 1964 (which can be used to attack private sector discrimination), the Equal Protection Clause of the Fourteenth Amendment (which reaches state-sanctioned discrimination), and the Americans with Disabilities Act and the Rehabilitation Act (which protect the rights of individuals qualifying as disabled). The final part of this paper will examine the utility of these legislative interventions, economic incentives and deterrents, viz., what ostensible benefit is there in tax-burdening the poor or charging excess insurance fees to people who, as a group, can rarely afford or even qualify for insurance coverage.¹² In this section of the comment, the reasonable basis and purported legislative intent for these measures will be considered in conjunction with less discriminatory alternatives, such as better preventive health care for the obese, better nutrition education, and counter advertising to defray the effects of marketing targeting.Page 306

I The Pathogenesis of Obesity: History, Etiology, and The Social Epidemic

A The Gay Nineties and the Portly Trencherman: A Brief History of American Perceptions of Obesity

"And ye shall eat the fat of the land"¹³ At the turn of the century, Lillian Russell, weighing over two hundred pounds, was viewed as the sine qua non of prosperous, well-heeled American beauty. She was famous and admired, as much a consumer of steaks and good booze as she was of diamonds and fulsome praise.¹⁴ She embodied the late nineteenth century ideal of womanly beauty; she was buxom, round, and sensuous. For men of the era, having a large gut was a sign of affluence and virility. William Howard Taft, "Diamond Jim" Brady, and Teddy Roosevelt (who were affectionately referred to as trenchermen because of their hearty appetites) wore waistcoat vests, festooned with conspicuous gold watch chains, and dined on elaborate multi-course meals.¹⁵ The economic boom of the late nineteenth century loosened staid Victorian ideals and paved the way for an orgy of excess. Gluttony and conspicuous consumption abounded in the Gay Nineties.¹⁶ Thinness was dclass. It represented poverty and sickness. To be thin was to be frail, tubercular, unfit. Having an evident bone structure suggested the taint of both manual labor and low socioeconomic class, two things the well-to-do American trencherman of the late nineteenth century wanted to be defined against. By the onset of World War I, however, cultural perceptions had significantly changed. Ms. Russell, far removed from her steak and diamond days,Page 307 was relegated to giving interviews concerning her battle with the bulge.¹⁷ This societal shift in perspective was particularly drastic for women.¹⁸ Women's magazines, previously devoid of all talk of body size (primarily because such talk was considered impolite), were suddenly filled with celebrity diet plans, endless advertisements for weight loss products, and express reinforcement of the notion that fat was unattractive and connoted laziness, lax moral...