Help for the Overweight Worker

Efforts are underway to make weight discrimination illegal.

By Linda L. Holstein
June 20, 2023

Social scientists have long recognized the workplace phenomena known as the “obesity penalty,” where overweight and obese employees earn less than non-obese individuals doing the same job.

Despite significant cultural momentum in the last decade to abolish body-shaming and reduce bias against the overweight, there is very little legal protection for employees who are not hired, or not paid fairly, because of their weight.

But the New York City Council on May 11 passed a bill banning weight discrimination in employment, and the mayor signed it a couple weeks later. The New York state legislature is considering a similar prohibition. Lobbying efforts have been led by the nonprofit National Association to Advance Fat Acceptance. Forty-four of the 51 members of the New York City Council voted for the measure that will take effect 180 days after the mayor’s signature. People discriminated against based on their weight or height would fall under a “protected class” in New York. That classification now applies to race, gender, disability, and religion.

The paucity of legal protection for overweight people has historically centered on the notion of “mutability.” Workers who are discriminated against by employers—as well as by co-workers—because of their size, are presumed to be able to change their appearance by sheer force of will.

Americans of all ages know only too well the proliferation of body-conscious stratagems, from Weight Watchers to the drug Ozempic, from diet pills to bariatric surgery, from scary CoolSculpting to liposuction.

All such remedies from at least the last seven decades assume that someone, with sufficient grit, determination, and often, money, can lose weight with or without appropriate medical guidance. In other words, the thinking is that obesity is not immutable, like one’s race, and thus has not been seen by courts or Congress as deserving of equal rights protection.

Without question, this new “protected class” has many potential members. According to the Centers for Disease Control, over 40% of American adults are considered obese, with 44.3% of adults ages 40–59 identified as obese in 2022. The BMI (body mass index), a standard weight-to-height ratio, while criticized by many, is still the criteria used by most doctors to determine “normal” weight (a score of 18.5–24.9) and “obese” (30.0 or higher).

There currently is no federal protection for overweight workers. In 2008, Congress amended the Americans with Disabilities Act to expand the definition of “impairment,” giving the EEOC greater leverage to encourage (or force) employers to consider weight a disability.

But negative actions against overweight workers are still not illegal under the amended ADA unless the condition (being overweight) “substantially limits one or more major life activities” or is regarded as such. Any number of overweight, obese or even morbidly obese employees are not at all limited in classic “life activities” such as bathing, grocery shopping, or caring for themselves or their families.

One legal scholar who has analyzed weight discrimination at work suggests there is indeed a federal remedy for plus-sized workers: Title VII, the law that prohibits, among other categories, sex discrimination in employment.

According to Jennifer Shinall, a Vanderbilt University law professor, obese women are the targets of most workplace weight discrimination; obese men much less so. When a worker is the “face of the company” in a public interaction job, such as a salesperson, Shinall found that employers had no difficulty hiring an overweight or obese man, and did not discriminate in pay compared to non-obese men or women. For overweight women, however, landing and keeping a public interaction job was consistently more difficult, and even then resulted in lower earnings than for average-sized women.

Even more disturbing were the statistics for “physically demanding” jobs that Shinall notes “few people want,” such as home health aides, behind-the-scenes food workers, and day care workers.

In a 2016 Berkeley Journal of Employment and Labor Law article, Professor Shinall compiled extensive data refuting the notion that employers balk at hiring overweight people “because of the [health care] cost” and the assumption of “low productivity.”

While health studies would indicate that obese and morbidly obese women should be less likely than normal weight individuals to work in occupations that emphasize physical activity, Shinall’s research showed just the opposite: morbidly obese women are the most likely to work in physically demanding jobs and are the least likely to work in public interaction jobs.

“A taste for thinness” is how she explains employers who harbor a bias that weight will supposedly stonewall a customer sale or send the client running. But that implicit bias, often not very well hidden in the workplace, may finally be uncovered as illegal discrimination, and eradicated.