Size-related Legislation
by Sally E. Smith

While we live in a country that prides itself on equal opportunity for all, fat people are almost completely disenfranchised from the American dream. As fat people, we are rampantly discriminated against in employment, education, access to public accommodations, access to adequate medical care, adoption, and housing. This discrimination is in addition to the social stigma that we face when we interact with our families, friends, and co-workers, and feeling like fair game to fatbashers when we walk down the street minding our own business or when we have the audacity to go to a public pool for a swim.

The size acceptance movement has made great strides in educating the public about the myths and stereotypes about fat people, but legal protection against size discrimination remains elusive. There are two ways to go about getting legal protection: statutory law (legislation enacted by local, state, and federal governing bodies), and caselaw (judicial interpretations and expansions of existing law).

Statutory law protecting fat people is virtually non-existent. In 1977, Michigan enacted the Elliott-Larsen Civil Rights Act, which remains the only state statute prohibiting discrimination on the basis of height and weight. Ironically, fat rights advocates had little to do with this progressive legislation; rather, the drafters of the bill threw in every category conceivable, and height and weight survived the arduous path through the legislature, during which time other protections, such as sexual preference, were amended out.

In 1992, due to the efforts of fat rights activists, Santa Cruz, California enacted a local ordinance prohibiting discrimination based on height and weight. And as a result of a series of New York Times articles chronicling the discrimination and social stigma that fat people face, legislators from New York and Texas introduced legislation adding height and weight as a protected category in those states' civil rights laws. Neither bill passed during the 1993 legislative session, but both are expected to move when the legislatures reconvene in 1994.

From the checkerboard history of weight-related litigation, one can only conclude that some people are protected from weight discrimination some of the time, but for different reasons. One body of caselaw uses disability rights laws to protect fat plaintiffs; the other body of caselaw is based on laws prohibiting age and sex discrimination to protect average size plaintiffs from weight discrimination.

In the disability arena, one of the first cases was English v. Philadelphia Electric Company, in which Joyce English was found unfit for employment by a company doctor who administered a pre-employment medical exam. The Pennsylvania Human Rights Commission found that "morbid obesity" was a handicap within the definition of the Pennsylvania Human Relations Act. In McDermott v. Xerox Corporation, Xerox refused to hire Catherine McDermott as a systems consultant because she was fat. In 1985, the Court of Appeals upheld an earlier ruling that she was discriminated against in violation of the New York Human Rights Law. Disability rights laws were also found to apply in New Jersey, in Gimello v. Agency Rent-A-Car, Inc., in Rhode Island in Cook v. Rhode Island Department of Mental Health, Retardation, and Hospitals, and in an unpublished opinion in California, in Mercado v. The Los Angeles Times.

On the other hand, in Cassista v. Community Foods, the California Supreme Court recently ruled that Toni Cassista was not protected by disability provisions in the state's Fair Employment and Housing Act, and that weight may qualify as a protected handicap only if medical evidence demonstrates that it results from a physiological condition affecting basic bodily systems and limiting one's ability to participate in one or more major life activities.

As an added twist, in an appeal of the Cook case, the U.S. Court of Appeals recently handed down a decision which stated that "morbid obesity" is a protected disability under the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA). The federal Equal Opportunity Employment Commission (EEOC) had filed a friend of the court brief in the case, formally taking a position that "morbid obesity" is a protected disability. Although neither the Rehab Act, the ADA, nor the regulations promulgated under either statute directly address this question, the EEOC asserted that obesity "of sufficient duration with a significant impact on major life activities" can qualify as a disability in the absence of physiological causes. In other words, a plaintiff would not have to prove his or her fatness was caused by another condition in order to receive protection under the ADA.

In instances where the victim of weight discrimination is not fat, a plaintiff does not even attempt to use disability rights laws, but often uses Title VII protections instead. In lawsuits brought against airline carriers by flight attendants being fired for weight restrictions, sex and age discrimination are routinely cited. The flight attendants argue that the weight tables used for men are based on the men having large frames, and the weight tables used for women assume women have small or medium frames. In addition, the weight restrictions are not adjusted for age, thus ignoring the physiological phenomena of weight gain with increased age, and effectively eliminating older flight attendants from employment.

This hopscotching over the legal landscape, using disability rights laws in some instances and Title VII in others, means that victims of weight-related employment discrimination are faced with legal roulette. From the viewpoint of the size acceptance movement, it would have been much better to argue these cases using clauses in state civil rights laws which prohibit discrimination based on belonging to a category or class of people. If successful, this would have effectively established height and weight as a protected category. One imagines that the reason this strategy has not been implemented is because the cases were not argued by public interest lawyers engaging in the risky business of establishing caselaw, but rather by private attorneys trying to win individual cases for their clients.

There have been many discussions and divided views within the size acceptance movement regarding using disability rights laws to protect fat people from discrimination. The question of whether fatness is a disability triggers strong feelings on both sides, one insisting that they are two different things and the other charging "ableism" and that everyone has different levels of ability, fat or thin. Some advocate that we should take what we can get, and if what we can get is protection under disability rights laws, we should grab it.

A major concern regarding using disability rights laws is the uneven protection they provide. Previously, it appeared as though very fat people were protected in some states, but that moderately fat or average size people suffering from weight discrimination were largely left out in the cold. With the recent appellate court decision in the Cook case, the issue is now settled insofar as individual states are concerned, and people who are 100% or more over the height weight tables are protected under the ADA. This decision also opens the door for claims in access to public accommodations, such as seating and transportation.

This disability argument does not bode well for pending legislation which would add height and weight as a protected category, thus prohibiting all size-related discrimination. In taking a position against the New York bill, the New York Human Rights Commission argued that it was unnecessary, since fat people are covered under New York disability rights laws. With the recent appellate court decision in the Cook case, working toward statutory protection may be doubly difficult.

It seems clear that the issues of weight discrimination and fatness need to be separated, both in the legal arena and within the size acceptance movement. One must keep in mind that fat people are not the only ones who lose out on jobs, benefits, and promotions because of their weight. Firefighters, police officers, flight attendants, and many others are routinely suspended or fired when their employers use arbitrary height and weight tables instead of measures of competence. If the size acceptance movement is going to fight weight discrimination, it shouldn't settle for the patchwork that disability rights laws might provide, but should continue to fight for statutory protection at the local, state, and federal levels. ß