by Sayward Stuart, J.D., B.C.L.
Aug. 26, 2008
It is no exaggeration to suggest that obesity is a growing problem in America. As Americans grow more overweight, weight-based discrimination likewise increases. State and federal governments as well as private employers have enacted measures that penalize and arguably disadvantage the obese. Economic policies (putting surcharges on the already-inflated insurance premiums paid by the overweight), legislative remedies (requiring that children in public schools be graded on the basis of weight) and employment policies (denying health and life insurance to an employee with a body mass index over an acceptable level) that punish the obese are as damaging as any other form of discrimination, but those affected find little redress within the traditional civil rights framework. The obese have not been granted the special consideration of a protected class (at least not in any federal law), nor are most of the rights infringed upon by this type of discrimination considered fundamental. After all, there is no fundamental right in this country to education, employment or health care.
An actionable case for obesity discrimination still can be made in a number of ways. Given that the rate of obesity in the African-American community is more than double that of white Americans, it is highly likely that any punitive measures taken against the obese will disproportionately affect the black community in a manner that would violate current anti-discrimination law. In this context, the main approach to redress might be a claim of disparate impact under the Civil Rights Act of 1991. Another possible remedy, which would not consider race or impact, is the Americans with Disabilities Act (and its partner, the Rehabilitation Act of 1973, which deals with discrimination in federal employment). If obesity were deemed a disability, then the ADA likely would be a potent weapon with which to attack obesity discrimination in the private sector.
Title VII of the Civil Rights Act of 1964 was intended to eliminate simple disparate treatment in the realm of employment on the basis of race, color, religion, national origin or sex. At the time it was enacted, little was said of the notion of disparate impact, a concept that looks at not only the process but also the outcome. The disparate-impact theory, which finally was codified in the 1991 amendments to the act, is unique in that it does not require a showing of purposeful discrimination. The defendant’s state of mind, in such an equation, is immaterial. The primary inquiry is whether a disparate impact has occurred and whether that impact is the result of a valid policy based on business necessity for which no less-discriminatory alternative exists.
Even though Title VII offers no protection to the obese as a class, it nevertheless could have a crucial role in fighting workplace discrimination against the obese when that discrimination disproportionately affects women or racial minorities. In a disparate-impact claim under Title VII, the plaintiff must (1) identify the practice that is alleged to be discriminatory, (2) show that a disparate impact on some class protected by the act exists and (3) prove that the practice identified actually caused the disproportionate impact. At that point, the burden shifts to the defendant to show that there is some business necessity for the practice. If this is proven, the practice is permissible unless the plaintiff shows that a less-discriminatory alternative achieves the same end. As with rational-basis review under the Equal Protection Clause, the employer likely will be able to find some legitimate business necessity for the policy (e.g., minimizing health care costs when insurance denials or surcharges are challenged).
In addition, it remains unclear what amount of evidence would be deemed sufficient in showing the existence of a disproportionate effect. In the 1991 amendments, in which the disparate-impact theory was explicitly addressed, Congress stated that the mere fact of a statistical imbalance alone is not sufficient to establish a prima facie case of a disparate-impact violation. Whether a disproportionate impact is severe enough to merit the application of Title VII is a question that must be addressed on a case-by-case basis.
Of all the measures that might be effective in addressing obesity discrimination, the Americans with Disabilities Act is the most promising. The act extends the protections of the Civil Rights Act to individuals who qualify as disabled. Basically, an exclusion or denial of equal work or equal benefits to an otherwise-qualified person simply because of a known disability violates the act. An employer may not use standards or criteria that are not job-related to winnow out employees on the basis of their disability. The act’s protections hinge on the question of who is and who is not disabled. For obesity to be considered a disability, it must meet certain criteria identified in the act.
Under the act, a disability is a “physical or mental impairment that substantially limits one or more of the major life activities” of the individual affected. Major life activities are such things as walking, seeing, hearing and speaking. The existence of a disability under the act is determined on a case-by-case basis with the court considering such factors as the makeup of the disease, the permanency of the condition and the way in which the condition was acquired. Though the implication that obesity is voluntary and correctable might seem a bar to any claim that it is a disability, courts have extended the protections of the ADA to both people with HIV, whether or not they acquired it through promiscuous behavior, and heroin addicts, whether or not they have sought treatment.
Despite this, obesity has not traditionally been deemed a disability under the act except when it has been found to relate to some physiological disorder. Therefore, if obesity were shown to affect bodily systems and result from some physiological impairment, then it most likely would qualify as a disability. As many recent studies have discovered a profound genetic component in obesity, as well as a strong physiological component in the form of metabolic dysfunction disorder, it may well be possible to make such a showing. In addition, the allegation that obesity is a voluntary condition should no longer prove an insurmountable obstacle to redress under the act; at least one court has held that the voluntary aspect of obesity is completely irrelevant. In Cook v. State of Rhode Island, which dealt with the Rehabilitation Act of 1973 (which grants protections similar to the ADA for those employed by the federal government), the court held that even if obesity could be said to be voluntary or exacerbated by voluntary action, it still would be covered by the act. Given that the scope of protected disabilities extended to alcoholism, smoking-related cancers and AIDS, the court noted that the question of whether a condition was acquired voluntarily was a nonissue. Furthermore, the court rejected the notion that obesity is easily corrected by conventional means and held that obesity was within the scope of traditional anti-discrimination protection. This case and others like it suggest that the ADA could be the most feasible mechanism for helping stem the recent tide of discrimination against the obese.
Sayward Stuart is an attorney based in the Dallas–Fort Worth area. Formerly the executive senior editor of the Louisiana Law Review, she is a published legal scholar and has written articles on a number of subjects, including an award-winning comment on the topic of obesity discrimination.
Bray, George. “Drug Treatment of Obesity.” American Journal of Clinical Nutrition 55 (1992): 538S–544S.
Rankinen, Tuomo, Aamir Zuberi, Yvon C. Chagnon, S. John Weisnagel, George Argyropoulos, Brandon Walts, Louis Perusse, and Claude Bouchard. “The Human Obesity Gene Map: The 2005 Update.” Obesity Research 14 (2006): 529–644.
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