November 11, 2005

Weighty Discrimination

by PG

In the course of a discussion about housing, a friend mentioned that she knew of a landlord who quizzed all prospective tenants about their weight, apparently because he was worried that a very heavy person might cause damage to his floors. She found it not only distasteful but unwise because it might open him to a lawsuit. To my knowledge, there is no obligation not to discriminate on the basis of weight as such, but there is an obligation not to discriminate on the basis of disability, real or perceived.

A couple of weeks ago, Slate published a piece about the politics of fat*. It juxtaposed the growing population of overweight Americans with the lack of accommodation, both practical and psychological, our society gives to such people. Some fat activists decry the diet industry because they believe that fat is generally genetic or glandular, rather than a product of behavior that could be changed.

The origin question is important in the politics of fat because it shapes the approach to policy and advocacy issues. For instance, should the primary battle now be to ensure that obesity is included under the Americans with Disabilities Act? Some argue that this is a misguided strategy, since it turns fat into a disease instead of a rights issue -- though if it were a recognized disability, suing over workplace discrimination and access issues would be a lot easier. Access and mobility hurdles provide material for a lot of wrenching chat-room discussions: Sufferers trade coping strategies for an endless variety of daily humiliations or share the longing for less impeded lives -- like just being able to get an airplane seatbelt around your waist without a humiliating extension. Such admissions can also prompt heated responses from the more defiantly fat and proud: Doesn't wanting to lose weight mean giving into self-hatred? (Or, as the militant put it: Should blacks desire to be white and thus give into racism?) The psychological strain of trying to have dignity while lugging a fat body around is all too palpable, despite the pride rhetoric.

As long as one is heathy while being overweight (and I know people whose cholesterol and other measures of cardiac health are much better than mine despite their being larger), I see no reason that one should be pressured to lose weight. However, to the degree that real obesity -- that which causes one to need a seatbelt extension -- negatively impacts health, to tell people that they shouldn't feel obliged to change themselves is wrong.

Nor should the law recognize obesity as a disability unless an individual's condition is as unalterable as most recognized disabilities. A broken arm doesn't make someone disabled; it means a physician should help that person to heal the limb. Sometimes a broken arm never will heal completely, and that does render a person disabled. With people who are obese, a physician might talk them into a program in which their food intake is strictly monitored and exercise enforced, and yet they still do not lose weight, and this would be obesity that should be covered by the Americans with Disabilities Act.

Nonetheless, I disagree with KZ's post on a lack of responsibility for oneself being the only real culprit in the higher rates of overweight and obese among lower-income populations. As the Slate article points out, fat activists show little desire to blame the food industry and its massive oversupply of calories, nor any other entity that alters how we eat except for the diet business, even though changes like the shift from sugar to high fructose corn syrup are partly driven by subsidy and trade policy, not entirely by the market. Congress probably will follow its prohibition on gun litigation with one on obesity-related litigation**, even though the only lawsuit in the latter category that has not been immediately tossed out as frivolous is one dealing with misleading advertising to minors, which has a tobacco pedigree.

However, government regulation beyond ensuring accurate and helpful nutritional information may be unnecessary if there is a sufficient public pressure on the food industry. Even McDonald's is at least trying to reform its image, if not its menu. This is a product of the attitudes that KZ decries: seeing the food industry as bearing some responsibility for what we eat.

* I was surprised that a Culturebox entry on this issue failed to mention Jennifer Weiner, who while not what I would call an activist, may well be impacting at least some people's perception of "fat." Her chick lit tends to have at least one main character who is overweight -- not just perceiving her body incorrectly (a common problem among the Bridget Jones types), but seen as such by others. Weiner's first novel was plotted around the humiliation of a woman who is clinically overweight; the second novel features Rose, an unideal size 14; the third includes Becky, who is told by a nurse that her obesity makes the baby difficult to see in an ultrasound. The latest, Goodnight Nobody, is told from the perspective of a woman who at least feels like "Shamu in a sweater set" compared to her Desperate Housewives-like neighbors. None of these women have weight loss as part of their happy ending, and all seem to be in good health.

** I missed Jacob Sullum's take on the federalism problem with such Congressional bans on state court torts when it was first published last month. I don't mind giving Congress sufficient authority under the Commerce Clause that it can do things like, say, pass the Fair Housing Act (if nothing else, the alternative route to non-discrimination seems to be Shelley games), so I'm starting from a more Wickard perspective than Sullum's anyway.

But to have Congress setting the agenda for state courts seems somewhat problematic, though the counter-argument shows up in Hit&Run comments, i.e. that with our current long-arm rules of jurisdiction, state courts often are dealing with matters that do not properly belong in that state. On the other hand, presumably the major corporations that are defendants in such suits could invoke complete diversity jurisdiction to put a plaintiff from a state in which they do not do business into federal court. (Indeed, the citizenship of corporations is supposed to be limited to the states in which they incorporate and where they have their chief place of business.)

November 11, 2005 02:54 PM | TrackBack
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