NO, WEIGHT STIGMA AND DISCRIMINATION ARE DIFFERENT

Contrary to the belief of a certain eating disorder organization:

Weight stigma and weight discrimination are not the same and in fact, are different in many important ways. There is no “chicken or the egg” argument with regard to weight stigma versus weight discrimination.

Some of the material differences are best illustrated in the following, simple definitions:

Weight stigma involves negative attitudes toward people who are obese. Weight stigma is social devaluation and denigration of people perceived to carry excess weight. This type of stigma is more often than not, a precursor to weight discrimination but does not rise to the level of negative conduct and is not actionable in court. And  yet, it is serious.

Weight discrimination is defined as unequal treatment resulting from stereotypes, rejection or prejudice towards people because they are obese. The unequal treatment is associated purely with a person’s weight. Discrimination is manifested conducted directed toward a person or group of persons.

The judicial system in the United States only considers weight discrimination. Cases filed under the Americans with Disabilities Act (“ADA”) address conduct constituting possible weight discrimination. Despite research demonstrating that negative attitudes are having an impact on how obese people are treated in the workplace, weight discrimination in the workplace is still legal in forty-nine states.

Essentially, this means that due to the long-recognized practice of at-will employment and termination of employment, anyone who is classified as obese may be fired due to weight discrimination in the workplace. This sets a dangerous precedent, one in which employers can body shame their employees. Furthermore, based on the fact that women report more incidents of weight discrimination in the workplace, it reinforces the cultural ideation that women are valued more on how they look, than they are for their skill set.

Why is weight discrimination not illegal?

So, how does our judicial system look upon weight discrimination in the workplace? The laws governing weight discrimination are based on constitutional prohibitions, and on state and federal statutes.

The U.S. Supreme Court has established certain tests for determining whether disparate (different) treatment of a group is discriminatory and illegal. If the treatment is based on what the law refers to as a “suspect classification,” the disparate treatment will be subject to “strict scrutiny.” A suspect classification is some characteristic of the victim, typically immutable (one that cannot be changed, such as age, gender or race), that has no bearing on the person’s ability to perform his or her job. Under current Supreme Court rulings, there are four traits that are considered suspect classifications: race, national origin, religion and alienage (the status of being an alien).

Courts have also identified what are known as “quasi-suspect classifications,” including gender and legitimacy of birth. Actions based on either of these characteristics are subject to “intermediate scrutiny.”

If the basis for the disparate treatment is neither suspect nor quasi-suspect, the court will only concern itself with whether or not there is a “rational basis” to treat the group differently. Disparate treatment based on disability, political affiliation, age, wealth or status as a felon—all are subject to the rational basis test.

Since obesity is not a suspect or quasi-suspect classification, courts will only consider whether there is a rational basis for an employer to treat obese persons differently. But first, the fundamental question, “Is Obesity a Disability?” must be asked. If the answer is always no, the analysis ends at that point. And that is where the Militant Fat Activists (“MFA”) hurt the very cause they are advocating.

Is obesity a disability? If it is not, then for the most part, employers can discriminate based on weight no matter how vociferously the MFAs argue, protest, harass and harangue. If a litigant cannot show that obesity is a “protected class” under the ADA, they will lose.

The ADA protects employees and applicants with disabilities from discrimination, and requires employers to make reasonable accommodations for employees with disabilities. The ADA states that height and weight, within normal parameters, are not disabilities. However, some courts and the Equal Employment Opportunity Commission (EEOC) have found that obesity may qualify as a disability, at least in limited circumstances:

  • If an employee or applicant has an underlying physiological impairment that has resulted in obesity (such as diabetes), the employee may be protected. The employee would have to prove that he or she had a disability as defined by the ADA. In other words, the employee would have to show not only that he or she had such an impairment, but also that it substantially limited a major life activity or major bodily function.
  • The EEOC has said that “severe” obesity, defined as weight that is greater than twice the average weight, is itself an impairment that could be a disability. Again, the employee would have to show that it substantially limited a major life activity or major bodily function.

But, according to the MFAs, obesity is never a disability. They believe that if you even use the biomedical word “obesity” you are “fat-phobic.” You can have health at your size! Medical community be damned … ignore your science, research and facts and listen to our anecdotal stories! If obesity is not ever a disability, then the MFAs who espouse that position are undermining themselves, obesity can never be the basis for a violation of the ADA and companies will be permitted to continue to discriminate at will based on obesity.

Corporations and Weight Discrimination

However, a corporation has no emotional incentive to engage in weight discrimination. From a public relations perspective alone, if a corporation was found to be engaging in overt acts of weight discrimination, the financial and societal ramifications could be devastating. In these times of “The Great Race to the Top of Woke Mountain,” many corporations seem to be vying to be the king of that mountain. “Mirror, mirror on the wall, who is the wokeist one of all?”

So, what incentive does a corporation have to combat weight stigma in the workplace to lessen the likelihood of weight discrimination? We can perhaps find the answer to this question in the February 2020 edition of the Journal of Occupational and Environmental Medicine.

In that Journal, an extensive multi-year study on the economic costs of obesity was published. Its findings showed that when compared with a lower BMI, obesity was associated with higher direct healthcare costs and indirect work loss-related costs, including costs related to disability, absenteeism (absence from work, such as sick leave), and presenteeism (reduction in productivity while at work). This report cited The Milken Institute report. The Milken report estimated a total cost of $1.72 trillion associated with obesity and its related comorbidities in 2016. 

Of this $1.72 trillion, $480.7 billion was incurred in direct health-care costs and $1.24 trillion in lost productivity. This study drew on research evidencing how being obese (as that term is defined by the biomedical community) elevates the risk of diseases such as breast cancer, heart disease, and osteoarthritis, and estimates the cost of medical treatment and lost productivity for each disease.

To combat this loss of revenue, numerous studies indicate that corporations which have an aggressive employee wellness program tend to be more employee friendly places to work. These corporate wellness programs result in improved employee health behaviors, reduced elevated health risks, reduced health care costs, improved productivity, reduced absenteeism, and improves employee recruitment and retention.

Corporations attempt to address obesity issues and weight stigma through extensive employee wellness programs. Corporations, people and organizations have financial incentives to encourage wellness programs. Weight discrimination lawsuits are not likely to succeed. Further, the MFAs continue to sabotage the ability to succeed in courts. So, we are justified in questioning why the MFAs continue to fight losing battles in the eating disorder community when an established fat acceptance community exists and would be far more welcoming.

The National Association to Advance Fat Acceptance (“NAAFA”) was founded in 1969.  It is a non-profit, all volunteer, fat-rights organization. It is dedicated to protecting the rights and improving the quality of life for fat people. The NAAFA seeks to eliminate discrimination based on body size through advocacy, public education and support. MFAs and the NAAFA would seem to be a match made in … well somewhere.

The MFAs may argue that weight stigma and weight discrimination are as important as any other issue because they dramatically impact eating disorders. They argue a Zero Sum Game and detract and distract from all other issues which plague persons afflicted with eating disorders. But, MFAs tend to be primarily “Fat Acceptance Advocate Wolves” first and foremost merely dressed in the sheep’s clothing worn by the eating disorder community.

This is especially true when we consider that not all people who are defined as obese have eating disorders.  With all of the fundamental dysfunctionalities inherent in the eating disorder community, why would any responsible eating disorder organization solicit donations ostensibly for eating disorder advocacy and research and yet then turn around and apply those donated funds to attempts to have weight discrimination laws implemented in various states?

In 2019, one now disgraced, former officer of an eating disorder organization disclosed, “[XXXX] is currently working with five other states in anti-weight discrimination legislation around the country, but there is still plenty of work to be done.”  Weight discrimination? Not eating disorders research or treatment?

And yet as shown above, since this same organization in 2019, demonstrated that it did not understand the significant differences between weight stigma and weight discrimination, it is not surprising that it would pursue its off mission agendas.

Weight stigma is a serious issue. Weight discrimination is a serious issue. Weight stigma can be a triggering element leading to an eating disorder. And yet …

No federal bills on research into eating disorders have been filed since 2013.

There are no generally accepted standards of care in the industry.

There is very little federal or state ethical oversight over therapists and counselors.

There are no agreed upon standards regulating marketing of services provided.

The mortality rate for eating disorders continues to escalate.

Covid-19 has resulted in increased eating disorder issues amongst all populations.

So called eating disorder community leaders refuse to support collaborative studies because of “personality differences.”

Intolerance and animosity have run a number of highly respected mental health care professionals out of the eating disorder community.

With these tremendous issues and problems plaguing the eating disorder realm, are weight stigma and weight discrimination the cross upon which we want to hang not just our future, but the future of our children? After all, NAAFA has 52 years experience in handling fat acceptance and weight discrimination. There is no doubt that the NAAFA would welcome Militant Fat Activists with arms akimbo.

It is long past time for fresh thinking, new ideas and rational, intelligent solutions to be presented. Just as it is long past time for bad actors, charlatans and frauds to be exposed and removed from the community.

Lives depend on it.

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