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Article Excerpt
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.
I. 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, diabetes mellitus, hypertension, dyslipidemia, cardiovascular disease, gallstones and cholecystitis, sleep apnea and other respiratory dysfunction, and ... certain cancers." (29) Yet historically, both overweight and obesity have been undertreated by physicians. (30)
The NIH (31) and the National Institute for Health and Clinical Excellence (NICE) (32) in the U.K. have similar guidelines for treating obesity. Broadly speaking, physicians have three treatment options: behavioral, pharmacological, and surgical. The appropriate medical intervention depends on the patient's BMI and the existence ofcomorbid conditions.
Behavioral interventions include reduced caloric intake, increased physical activity, and behavioral therapies such as stimulus control, stress management, cognitive restructuring, and social support. (33) Pharmacological interventions include Orlistat, a fat absorption blocker, and Sibutramine, an appetite suppressant. Drug therapy produces moderate weight loss of on average 4.4 to 22 pounds. (34) Studies show that obesity drugs are also effective in treating diabetes, liver disease, and heart disease in obese patients. (35)
Surgical interventions include various types of gastric bypass, which restricts the patient's gastric volume. Most patients who undergo these surgeries "fare remarkably well with reversal of diabetes, control of hypertension, marked improvement in mobility, return of fertility, cure of pseudo-tumor cerebri, and significant improvement in quality of life." (36) Contrary to public perception, the mortality rate of gastric surgery is less than one percent. (37) Furthermore, the procedure is extremely cost efficient by industry standards. (38) In fact, because gastric bypass alleviates many costly comorbid conditions, it saves money in the long run. (39)
Obesity treatment is not just for removing excess fat. Obesity treatment is an effective treatment (sometimes the only effective treatment) for obesity-related comorbid conditions. One newly published study shows that obesity surgery is much more effective in treating Type 2 diabetes among obese patients than traditional diabetes treatments. (40) Among those who underwent obesity surgery, seventy-three percent saw complete remission of their diabetes. (41) In comparison, among those who underwent traditional diabetes treatment, only thirteen percent saw complete remission. (42) The study reflects an increasing interest in the efficacy of weight-loss treatment for chronic conditions among obese patients, even for those who are not morbidly obese. (43)
Currently, the NIH recommends pharmacological therapy if six months of behavioral therapy has failed to promote weight loss. (44) The NIH also recommends surgery for patients with a BMI of at least 40 or a BMI of at least 35 with serious comorbid conditions, and for whom other therapies have failed. (45) For patients with a BMI of at least 50, however, NICE recommends surgery as the "first-line option (instead of lifestyle interventions or drug treatment...)." (46)
In sum, being fat is not just a matter of personal choice. Just like other chronic diseases, fatness results from the interaction between genes, environment, and personal choice. Moreover, being fat is not just a personal problem. Ultimately, society suffers from fat in terms of increased health care costs and lost productivity.
II. WEIGHT DISCRIMINATION
Fat people suffer from a chronic illness that is not predominantly within their control. Instead of supporting medical care and treatment, however, society blames fat people for their bad fate. Section A of this Part will survey the various sources of weight discrimination in society. Section B will explore why people discriminate against fat people and how discrimination harms fat people.
A. The Reality of Weight Discrimination
Weight discrimination is pervasive, beginning in childhood and affecting every area of one's personal and professional life. In an iconic 1960s study, children aged ten to eleven evaluated line drawings of other children. The drawings depicted one overweight child, four children with various physical disabilities, and one able-bodied child of normal weight. Children overwhelmingly ranked the overweight child least likable, behind every disabled child and far behind the normal-weighted child. (47) At school, discrimination comes not only from peers, but also from teachers and even from parents. (48) Ultimately, fat high school students have lower college acceptance rates despite having comparable academic performance. (49)
On the job market, fat applicants with similar or identical credentials are less likely to be hired than thin applicants. (50) Fat candidates are evaluated as less competent, productive, industrious, organized, decisive, and successful. (51) Even after being hired, fat employees suffer from worse treatment (52) and receive lower pay. (53) Recent analysis suggests that wage discrimination is still increasing even as the population becomes increasingly obese. (54)
Finally, fat people suffer from discrimination in health care treatment and health insurance. While one might expect physicians, of all people, to treat patients in an impartial fashion, in fact, health care professionals share the same prejudices against fat people as the general public. (55) According to one survey, physicians are among the most common sources of stigmatizing experiences for fat people. (56) Perhaps most detrimental for the patient, physicians respond with less patient time. (57)
Equally important, physicians simply fail to treat obese patients' underlying medical condition--their obesity. In one study, fifty percent of respondents reported that their physician had not suggested any of the common methods of weight management. (58) Despite the fact that obesity is a leading cause of preventable death, (59) obesity is "not receiving the attention [it] deserve[s] from primary care practitioners." (60) Thus, even patients who want to improve their weight management find it difficult to get adequate medical support and guidance from their physician.
Exacerbating the problem, patients face many obstacles to obtaining health care coverage for obesity treatment. While most public insurers are increasing coverage for obesity, (61) private health insurance providers are reducing coverage. (62) Many large insurance providers have recently made highly publicized decisions to drop coverage for obesity surgery. (63) According to a 2004 survey, only forty-eight percent of employers now cover obesity surgery. (64) Another study found that even children for whom obesity treatment was a "medical necessity" were denied coverage in thirty-five percent of cases. (65) As Part I discussed, risk and cost rationales do not justify restrictions in coverage. Nonetheless, insurance providers refuse to provide coverage for obesity as they do for other chronic illnesses.
Thus, not only does societal discrimination punish fat people with fewer opportunities, it also subjugates fat people by refusing them the medical and financial support that would help them to improve their weight management: "It's kind of a double punishment." (66)
Even though mistreatment of fat people is commonplace, the negative impact of such discrimination remains largely misunderstood. There is a widely shared misconception that making people feel bad about their weight is an "effective ... form of motivation to lose weight." (67)
This incentive rationale is suspect to begin with; for no other chronic illness do we encourage discrimination as an incentive. There are no campaigns, for example, to stigmatize people with heart disease or high cholesterol. Heart disease is the number one killer in the United States. (68) As with obesity, personal choice plays a role in prevention and management of heart disease. Unhealthy lifestyles are indeed a serious problem, but not one unique to obesity.
Therefore, if society singles out obesity for discrimination, it should only do so if fat people are unmotivated by health benefits and if discrimination actually produces more weight loss. Both hypotheses are false. Fat people do respond to health incentives. Even today, the most common motivation for losing weight is health, not appearance. (69) Thus, if society stopped discriminating, fat people would not give up on weight loss.
Assuredly, there are people at the margin for whom greater incentives would make a difference. (70) If the goal is to incentivize healthy weight loss, however, weight discrimination is counterproductive. Denigrating fat people does not help them lose weight. Instead, weight discrimination triggers unhealthy eating behaviors. (71) Similarly, fear of weight-related teasing is a major reason that students do not...
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