Weight discrimination: one size fits all remedy?

• Author: Wang, Lucy

NOTE CONTENTS INTRODUCTION I. THE SCIENCE OF FAT II. WEIGHT DISCRIMINATION A. The Reality of Weight Discrimination B. The Psychology of Weight Discrimination III. NEED FOR LEGAL REDRESS IV. CURRENT LEGAL FRAMEWORKS A. Disability Discrimination: The ADA and the Rehabilitation Act 1. Case Law 2. Weight Discrimination Is Not Disability Discrimination B. Race and Sex Discrimination: Title VII 1. Case Law 2. Weight Discrimination Is Not Just Sex Discrimination 3. Weight Discrimination Is Not Like Race Discrimination C. Appearance Discrimination Law 1. Case Law 2. Weight Discrimination Is Related to but Distinct from Appearance Discrimination D. Effective Weight Discrimination Legislation V. A NEW FOCUS A. Health Care Discrimination B. Cutting Edge: Insurance Coverage 1. Health Care Antidiscrimination Lawsuits 2. Affirmative Mandate Approach 3. An Improved Approach CONCLUSION INTRODUCTION

Being fat is one of the most devastating social stigmas today. (1) Fat people are openly stereotyped as "mean, stupid, ugly, unhappy, less competent, sloppy, lazy, socially isolated, and lacking in self-discipline, motivation, and personal control." (2) Respondents to one survey said they would give up a year of their life or even a limb to avoid being fat. (3)

The health consequences of excess weight are well known, but little attention is paid to the social consequences of weight discrimination. Fat people are rejected for jobs, passed over by educators, maltreated by health care professionals, and denied equal access to health insurance. (4) As fat advocate Carol A. Johnson writes, "Weight discrimination can have an omnipresent and lasting impact on the life of an overweight person. It can be much more limiting on that person's life than the excess weight itself." (5) Yet weight discrimination remains one of the most socially acceptable forms of discrimination. (6)

Recently, legal commentators and fat-rights activists have begun advocating for antidiscrimination protection for fat people. The movement's rhetorical strategy analogizes weight discrimination to more familiar forms of discrimination. This Note argues that the strategy is misguided in two ways. First, the strategy perpetuates confusion about the very concept of weight discrimination. Fat people face discrimination along many different dimensions. What exactly are we talking about when we say that fat people deserve protection from discrimination? This Note argues that fat people face discrimination primarily because society blames them for their weight. People believe that fat people "really could lose weight if [they just] settled down and stopped being such ... fat slob[s]." (7) In reality, however, the science of fat is more complicated. Personal choice is a significant, but not the predominant, determinant of weight. Weight discrimination is, therefore, the result of causal misattribution.

Of course, fat people face discrimination for reasons other than causal misattribution. Some fat people face discrimination when public venues refuse to make accommodations for their size. Others face discrimination when their employers assume that they lack adequate physical capacities. Fat women may face differential weight standards from men. All fat people face society's harsh judgment that fat is ugly. Each of these examples illustrates a different rationale for discrimination: actual disability, perceived disability, sex, and appearance. While these are serious problems in their own right, they do not account for the type of discrimination that fat people are most likely to encounter. Laws directed at these types of discrimination will not solve the independent problem of weight discrimination because weight discrimination operates under a unique psychological rationale. Unlike the paradigmatic case of race discrimination, the logic of weight discrimination is explanatory, not descriptive. In other words, nobody believes that being lazy makes you African American. But people do believe that being lazy makes you fat. An effective legal strategy must address the distinctive logic of weight discrimination. By relying on inappropriate analogies, commentators fail to identify the relevant theory of discrimination.

Second, the current strategy unnecessarily restricts its focus to employment discrimination. The workplace is the familiar context of antidiscrimination regulation. Analogizing to traditional forms of discrimination naturally leads commentators to adopt an employment focus. A more effective strategy, however, begins with the source of discrimination that inflicts the greatest harm. For fat people, that source is not employment, but health care.

Thus, the current strategy neglects the pressing problem of health care discrimination, i.e. discrimination by physicians against fat patients. Health care discrimination poses new problems for antidiscrimination law. The physician-patient relationship differs significantly from that of employer-employee. Consequently, traditional antidiscrimination litigation is unlikely to alter physician behavior. This Note suggests an alternative strategy that targets weight discrimination indirectly through the mechanism of health care insurance.

Part I of this Note explains the current scientific understanding of fat. Part II presents evidence of weight discrimination. Part III argues that weight discrimination deserves legal attention. Part IV argues that existing employment discrimination frameworks cannot remedy weight discrimination. Part V advocates a new focus on health care.

1. THE SCIENCE OF FAT

   Everyone knows that being fat is, all things considered, less healthy than maintaining a normal weight. As the Centers for Disease Control and Prevention explain, "Overweight and obesity are both labels for ranges of weight that are greater than what is generally considered healthy for a given height." (8) Beyond this baseline, however, the lay understanding of fat diverges greatly from the scientific understanding. (9) This Part will provide background on the prevalence of overweight and obesity, their costs, causes, and treatments.

   Health professionals define levels of risk by Body Mass Index (BMI), a measurement based upon an individual's weight-to-height ratio. (10) For adults, a BMI of below 18.5 is considered underweight; a BMI of 18.5 to 24.9 is considered healthy; a BMI of 25 or higher is considered overweight; and a BMI of 30 or higher is considered obese. A BMI of 40 or higher is considered severely obese (or morbidly obese). (11) This Note uses the term "fat" to encompass overweight, obese, and morbidly obese, while using the term "obese" to refer only to obese and morbidly obese.

   Currently, 66.3% of American adults are overweight, including 32.2% who are obese and 4.8% who are morbidly obese. (12) In general, racial minorities and the poor are at a higher risk for obesity. (13) Women with income less than or equal to 130% of the poverty threshold, for example, are about 50% more likely to be obese than women with higher incomes. (14) Similarly, African American and Mexican American women are more likely to be overweight than their Caucasian counterparts. (15)

   In total, direct health costs of overweight and obesity account for $78.5 billion annually, or nine percent of the total U.S. medical expenditure. (16) These expenditures include preventative, diagnostic, and treatment services. Medicaid and Medicare pay for roughly half of the medical expenditures caused by being overweight and obese. (17) The rest of the cost is borne either out-of-pocket or by private insurance. (18)

   In addition to these direct medical expenditures, the indirect economic costs of obesity include morbidity costs (the value lost from decreased productivity, restricted activity, absenteeism, and bed days) and mortality costs (the value of future income lost by premature death). (19) Finally, there are also psychological costs to being overweight or obese.

   While the escalating rate of obesity is well known, the exact causes of obesity are not completely understood. As the National Institutes of Health (NIH) explains, "Obesity is a ... multifactorial disease that develops from the interaction between genotype and the environment." (20) The biological pathways of obesity-related genes are still poorly understood. (21) Studies show, however, that people are genetically predisposed to respond differently to energy imbalances. (22) In all, genetic factors play a significant causal role, explaining roughly seventy percent of individual variation in BMI. (23)

   The dominant theory of how genetic predisposition works is the "set point" theory of obesity. (24) Set point theory posits that genetic determinants set a target weight around which the body will establish an equilibrium. Biological processes, including metabolism and hormonal signaling, significantly impede people from altering their weight. (25) Individuals can still exert reasonable control over their weight within a certain range of their natural set point. Outside this range, however, it is extremely difficult to maintain weight changes.

   That is not to say, however, that the set point theory denies individual variation. There is no single genetic determinant of weight. Hundreds of specific genes have already been studied, (26) and researchers estimate that thousands of genes may ultimately influence one's genetic predisposition. (27)

   The process of maintaining homeostatic equilibrium certainly differs between individuals. Some people will have strong homeostatic regulation around their set point whereas others may have very weak regulation. (28) That is, although genetic variation explains seventy percentage of weight variation, genes may be more or less determinative for any particular individual.

   While the causes of obesity are still obscure, the effects of obesity are well documented. Obesity increases one's risk for a variety of comorbid conditions, including "insulin resistance...