The anti-stigma principle and legal protection from fattism

ABSTRACT

‘Fattism” has been described as the last acceptable prejudice. Discrimination on the grounds of weight is experienced regularly by women and men in relation to employment as well as access to goods and services. As I show in this article, it can also be seen as a form of intersectional discrimination. Yet a legal remedy for weight discrimination exists in just a few countries. In this essay, I consider why legal protection is so limited: I highlight the influence of the logic of immutability and suggest that an alternative logic – an anti-stigma principle – should be used to guide the evolution of anti-weight discrimination law.

KEYWORDS:

• Anti-discrimination law
• immutability
• weight
• stigma
• fattism
• race
• gender

Introduction

Once again, during COVID-19, “obesity” has been defined as a significant problem and a major threat to public health (Editorial in The Lancet 2020; Crawford and Jeffery 2005). Little attention is paid to “fattism,” discrimination experienced by people who are regularly described as “fat,” “overweight,” “obese” or living with “obesity.” Weight discrimination occurs in employment and access to services, especially healthcare, but this is rarely prohibited by law. Any legal remedy secured by a target of weight discrimination is usually derived through the use of disability discrimination law.

This article argues for specific legal protection against weight discrimination, or “fattism.” Like Tirosh (2012), I propose a move toward a new legal paradigm. The argument is set out in four parts. First, I explore the impact of the idea of immutability on the evolution of anti-discrimination law. I then outline the limitations created by the idea of immutability in relation to the personal scope of anti-discrimination law, including intersectional discrimination. Following this, I propose that immutability be replaced by an anti-stigma principle and illustrate briefly how this application would look in relation to weight discrimination. As will be seen, the anti-stigma principle not only offers a legal remedy for weight discrimination but also for intersectional discrimination, meaning that equality law could provide protection for an especially vulnerable group of workers – fat Black women (Lien et al. 2008).

Fattism

The world is fatphobic, despite the increasing number of fat people (Editorial 2020). Being fat is regarded as something to be feared and avoided, especially for women. In particular, the young are fatphobic – Solbes and Enesco (2010) concluded that

“children who grow up in Western societies idealize thinness from an early age and denigrate overweight, to which they associate explicitly and implicitly a series of negative traits that have nothing to do with the weight. As they grow older, they seem to reduce their levels of explicit prejudice, but not the intensity of implicit bias.”

A fatphobic child has a higher likelihood to mature into a fatphobic adult.

It is therefore worrying that little attention is paid to the everyday discrimination experienced by those who are fat (Farr 2018). Public accommodations – seating in restaurants, cafés and waiting rooms or toilets in concert halls, airplanes and bus stations – are rarely designed to accommodate “overweight” or “obese” bodies. Some U.S. airlines require fat passengers to purchase a second seat at the same price as the first (Bolton 2004; Higginbotham 2003).

Many studies have identified and illustrated the detrimental impact of body size on income and earning (Atella et al. 2007; Baum, Charles, and Ford 2004; Cawley 2004; MacClean and Moon 1980), albeit mostly focusing on White women (Judge and Cable 2011). Lempert (2007) concludes that the wage “bias against weight has increased, despite drastic increases in the rate of ‘obesity’ in the United States” yet simultaneously “the increasing rarity of thinness has led to its rising premium.” Rausch (2013) has written about the fat premium in insurance. Gortmaker et al. (1993) suggested that discrimination may account for the reduced social and economic status of “overweight” adolescents and young adults. Mason (2012) later illustrated that discrimination does indeed play a role in income inequality in the USA. Further studies have found that weight discrimination is getting worse (Andreyeva, Puhl, and Brownell 2008; Roehling 2002).

Fat is a black feminist issue

The prevalence of fatness in the population varies by race and ethnicity – weight discrimination is an intersectional issue.¹ Among African Americans, 28.6% are classified as “obese,” compared with 21% of Hispanics and 18% of Whites (Bell, McLaughlin, and Sequeira 2004). Black women in particular are more likely to be “overweight” than men – in the USA, about 40% of Black, Hispanic and Native American women are described as “obese” (Bell and McLaughlin 2006). Despite this, women of color are rarely the focus of or included in studies on body weight and size due to assumptions that these women have a more positive approach to their body size. A study by the University of Arizona claimed that 70% of Black girls were satisfied with their bodies compared to 90% of White girls who were dissatisfied with their size (Critser 2003). Media depictions also stereotype fat Black women – fatness is perceived to be a consequences of bad choices. This depiction also sends a message about race as well as class – fatness is viewed as a consequence of immorality for the poor but the result of illness among the wealthy (Saguy and Gruys 2010).

Shaw describes the “triple fetishization” of the fat, Black, female body that signifies “the primal, the erotic and the exotic” (Shaw 2006, 49). An internalization of this historical fetishization may explain why Black women are more comfortable with their weight than White women. It may also be that among persistently impoverished Black communities, fat symbolizes wealth while thinness still equates to poverty. Furthermore, Black women may have a broader definition of attractiveness and find greater size acceptance within their communities than White women do within White communities.

However, this higher acceptance of fatness ultimately leaves Black women more vulnerable to weight discrimination in the labor market: first, the portrayal of the successful career woman is White and thin (Tempesta and Siebert 2016) and second, employer standards on size will negatively affect more women of color. This argument was raised by an African American woman denied a trainee waitress job because her hip measurements exceeded the maximum allowed by the employer’s purportedly neutral height and weight chart. She complained of indirect discrimination, arguing that due to genetic differences, the employer’s hip measurement standard had a disproportionate impact on African American women (Roehling 2002). Additionally, employer weight bias is more likely to apply to more Black women as they are less likely to be in hiring and firing positions (Bell and McLaughlin 2006): there are, statistically speaking, more White male and female managers who are fatphobic and more Black women workers who are fat. Fat Black women are more excluded than fat White women: fatness has more consequences for Black women in the labor market.

Despite the prevalence of weight discrimination in society, there are few jurisdictions that provide legal protection. There has never been legal protection against weight discrimination in the UK and in Europe. In the USA, only one state – Michigan – explicitly bans weight discrimination. Across Europe the prohibition against “body build and type” introduced by the city of Reykjavik (Iceland) stands alone.² There is increasing support for the need to make weight a protected ground in anti-discrimination law (Rubino et al. 2020). According to Suh et al. (2014, 1872), “there is strong, consistent support for policies prohibiting weight discrimination.” Puhl et al. suggest public support for specific anti-weight discrimination law (2014). The Lancet (Editorial 2020) also argues that the time has come for serious action. Even the American Society for Metabolic and Bariatric Surgery (ASMBS) has called for the US government to take action to reduce weight stigma and discrimination (Wolfe 2012). Yet governments have done little to protect individuals from discrimination based on body shape and size. In contrast, regulatory suggestions have included proposals that fat people be put in prison camps or that discrimination against fat people be legalized in insurance, work and education (Byrd 2004). _{As I illustrate below}, fatphobia is inherent in the logic of anti-discrimination law.

The logic of anti-discrimination law: immutability

Why are there so few places with a legal prohibition against weight discrimination? Reliance on the logic of immutability might explain this. Immutability describes something that is not chosen and cannot be changed: to be immutable is not merely to be unchanging, but also to be unable to change. It suggests irrefutability, perpetuity and irreversibility. Perhaps most importantly for anti-discrimination law, it strongly suggests the absence of blame – people have not chosen their skin color or sex so should not be blamed for this. Victims of discrimination have no control and are therefore “innocent,” deserving of state protection through the use of law.

This idea plays a central role in determining where the anti-discrimination principle should be active. According to Marcosson (2001),

“few arguments offered on behalf of ending discrimination or inequality resonate more powerfully than immutability. It reflects the universal appeal of the concept that it is unfair to disadvantage people based on a characteristic over which they exercise no control.”

Legal protection is limited to those suffering mistreatment for attributes that are immutable – immutability guides the personal scope of anti-discrimination law in the UK, EU and USA: protection focuses on characteristics similar to sex that are “innate and largely immutable … closely connected with an individual’s personality and life chances.”³ In TEST-Achat⁴. AG Kokott described race, ethnic origin and gender as characteristics that are “inseparably linked’” to an individual “over which he has no influence” and that are “not subject to any natural changes.” In Frontiero, the US Supreme Court clarified that immutability suggests a group defined by a permanent and unchanging feature “determined solely by accident of birth.”⁵ Accordingly, race, gender and national origin are treated as immutable characteristics (Darmer and Katherine 2010). Yet the consequences (Shapiro 2002) of this very literal approach were seen in Rogers, where the Supreme Court argued that a braided hairstyle was mutable as it could easily be changed but an Afro was natural and thus immutable (Turner 2001).

Immutability has helped to extend legal protection to sexual orientation discrimination in the USA (Clarke 2015). State courts in Wisconsin,⁶ Texas,⁷ Michigan⁸.and California⁹. and supreme courts in New Mexico,¹⁰ Iowa,¹¹ California¹². and Connecticut¹³. all accepted a new approach to immutability linked not to permanent and unchanging but fundamental characteristics. For example, in Latta¹⁴. a District Court stated “s]exual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them.” In Obergefell I¹⁵. the US Supreme Court confirmed that immutability arises not only where a characteristic is “strictly unchangeable” but also where “the characteristic is a core trait or condition that one cannot or should not be required to abandon.” In Obergefell II,¹⁶ the Supreme Court accepted the submission from the American Psychological Association that sexual orientation should be seen as a core trait that one “cannot or should not be required to abandon” and that “[m]ost gay men and lesbians do not experience their sexual orientation as a voluntary choice.”

However, some argue immutability should be discarded (Gill 2014; Goldberg 2004; Hutchinson 2003; Mucciaroni and Killian 2004; Stein 2011). Darmer and Katherine (2010) states:

“[it] is not only inherently stigmatizing to ask whether a person’s sexual orientation can be ‘changed’ but this approach to sexual orientation also suggests a heterosexual norm: heterosexuality is the ‘preferred’ sexual orientation and that it would be better if folks could change their sexual orientation if it deviates from that norm.”

Immutability suggests a norm with the subtext that those who cannot satisfy it will be “tolerated” and even “forgiven” as their deviation (skin color, sex, sexual orientation or impairment) is not their “fault” – they did not choose the “deviation” and can do nothing to change it. Immutability suggests a kind of paternalistic social forgiveness for the “misfortune” of being fat, Black, female, disabled or gay, rather than an acceptance of the legitimacy of these attributes. Immutability therefore does nothing to tackle the stigma attached to various attributes, but, in fact, supports that stigma. It makes the characteristic the problem, rather than the social meaning given to it.

Furthermore, immutability enables society to continue to “punish” those considered to choose not to subscribe to its norms, such as fat people. Weight discrimination is apparently acceptable due to the widespread belief that fat is mutable and thus fat people have only themselves to blame.

Intersectional discrimination

The link between immutability and anti-discrimination law may explain the absence of legal protection against weight discrimination. Immutability has also encouraged discrimination to be approached as zero-sum, with complaints made on one or the other ground – e.g. race or sex – but not both combined. Equality campaigns were also designed in this way: the Suffragists excluded voting rights for Black and poor women – Black women were conspicuously absent at the U.S. Seneca Falls Anti-Slavery Convention of 1848 where mainly middle-class White delegates debated women’s suffrage. As Anna Julia Cooper (1892, 1988) wrote, “the White woman could at least plead for her own emancipation; the Black woman, doubly enslaved, could but suffer and struggle and be silent.” Sojourner Truth asked “ain’t I a woman” to challenge the exclusion of Black women from the suffragists.

This zero-sum approach was challenged in the 20^th century by critical race feminist arguments that Black women have no choice as to which attribute is the source of discrimination and thus should not be forced to choose in order to secure a legal remedy. Critical race feminists developed and applied critical race theory to consider “the interactive relationship between racism and sexism from the experiential standpoint and knowledge base of Black women” – and develop legal theories grounded in that specific reality. One such theory is “intersectionality,” a term coined by Crenshaw (1989) to crystallize the particular position of Black women workers in the labor market.

In Degraffenreid¹⁷. a group of Black women at General Motors (GM), the largest employer in St Louis, complained of discrimination due to the synergy of race and gender. In 1977, 22% of the population in Louisiana were Black women, yet prior to 1970, GM employed just one Black woman as a janitor. In total, GM hired just 6 Black female workers in 1970, 11 in 1971, none in 1972, and 137 in 1973. By late 1973, GM had 155 Black women workers out of a total workforce of 8,500. Yet by January 1974, all of GM’s Black women workers had been made redundant: as the most recent recruits (“last in”), they were the first to be fired (“first out”). Only the Black female janitor remained.

However, during this time, GM hired Black men and White women and thus a claim of race or sex discrimination alone would have been unsuccessful. The only way to secure a remedy was to ask the court to recognize that the situation of Black women was qualitatively different from both of these groups because of a synergy between race and gender. Although the law took race and sex separately, they argued that in their existence as Black women, racism and sexism converged, resulting in a “synergistic” combination of two degraded statuses: “[…] the disabilities of Blacks and the disabilities which inhere in their status as women resulting in a condition “more terrible than the sum of their two constituent parts” (Scales-Trent 1989, 1). The concept of intersectional discrimination was devised to crystallize this. Degraffenreid argued that the experience of employment discrimination arose in the wake (Sharpe 2016) of slavery from the combination of societal racism, GM’s racist employment practices, and the trade-union sanctioned seniority system. She asked the court to recognize the synergy in her status as a Black woman per se, as an “integrated, undifferentiated, complete whole” (Austin 1989, 540), who lived in society as “twice-stigmatised … twice kin to the despised majority of all the human life that there is” (Jordan 1981, 140).

This synergy is at the core of intersectionality, emphasizing the effects produced when two or more elements work together. In the absence of synergy, the idea of intersectional discrimination loses its social and political context. It is reduced to identity politics – the prospect of potentially unlimited “combination” of characteristics emerges and the systemic critique is lost. Without synergy, intersectionality is just another name for multiple discrimination. Under “multiple discrimination,” discrimination is additive (experienced in a single event) or cumulative (occurring at separate events) (Hannett 2003). These forms of multiple discrimination can generally be described as sex- or race- “plus” (Scales-Trent 1989). As these two forms are aggregative rather than synergistic, they differ significantly from intersectionality.

A similar argument was raised in Jefferies v Harris County Commission,¹⁸ where a Black woman employee claimed discrimination when she was refused promotion to a job that had previously been held by a White woman and a Black man. Jeffries was not denied employment or threatened with dismissal – her job was secure – and there was no evidence of sex discrimination or race discrimination. However, she argued that she was subject to a “cement ceiling” created by discriminatory stereotypes based on her race and gender.

The US District Court rejected Degraffenreid as seeking a “super-remedy.” However, in Jeffries, the US Federal Appeal Court ordered a reconsideration of the intersectional race and sex discrimination aspects of the complaint: it refused to accept a result that left Black women workers – a significant proportion of the active labor force – vulnerable and without a remedy for discrimination.¹⁹

The concept of intersectionality was neither an abstract matter nor simple identity politics. The demand for legal recognition of the labor market position of Black women workers arose from a structural critique of political, economic and social organization with origins in the philosophy developed from the experiences of African women enslaved in America, who were beaten, lynched and raped to give birth to children who would be used as products to perpetuate the slave system.²⁰ As Davis (1981) has articulated, not only their bodies but also their reproductive capacities were the property of the slave owner. Enslaved women such as Sojourner Truth and Harriet Tubman established the analysis of the slave plantation economy through their own eyes, centering women denied bodily integrity and autonomy, economic power and political voice who, unlike White women, had no privileges in racial superiority (Cooper 1892, 1988) and unlike Black men, could lay no claim to second-class patriarchy. They created the philosophy of structural inequality that infuses the idea of intersectionality.²¹

The challenge for law is to find a way to remedy intersectional discrimination that respects synergy and that disrupts prevailing frameworks of discrimination, especially those that make certain forms of discrimination invisible, such as discrimination against fat Black women. The anti-stigma principle can help with this goal.

The anti-stigma principle

The anti-stigma principle (Solanke 2017) builds on the work of critical stigma scholars who view stigma as a social process of disempowerment. The process of stigmatization put forward by Link and Phelan (2001) lists a series of converging components: deliberate labeling of an arbitrary attribute by powerful parties in society, followed by stereotyping that separates persons with the element from others and reduces their status making them targets of discrimination. Herek (2002) lists three key characteristics of stigma: embeddedness refers to the extent to which stigma is entrenched in social norms and “common sense”; endurance relates to their longevity; and negative evaluation – the way in which stigma is used to support adverse judgment by the powerful who have means of control over the powerless (who have no access to such means). Hannem and Bruckert (2012) stress not only low social power but also low interpersonal status: stigmatization is not just a process of what people do to each other (interpersonal power) but also what society entertains and allows people to do (institutional power). It cannot be “wished away” (Plummer 1975) and thus is inescapable through individual action alone.

These ideas can be brought together in an “anti-stigma principle,” and used as a logic to identify those stigmatized characteristics, attributes or statuses to be protected in antidiscrimination law. Use of the anti-stigma principle would not incorporate a completely new approach to discrimination law – immutability is, after all, a part of stigma – but on the contrary it would provide a rationale for its expansion that disrupts but does not destroy the existing framework. To retain the legal focus not all stigma should be protected – being stigmatized per se is not enough to warrant protection under anti-discrimination law – thus additional factors would have to be considered to determine which stigma warrant legal protection. Perhaps most importantly it would de-emphasize the ideas of innocence and blame that excludes groups suffering from discrimination, such as fat Black women, from legal protection.

The anti-stigma principle offers a simple and sustainable way to explain why law is used to prevent and protect some individuals from discrimination yet not others. It can be used to determine when a particular trait, attribute or condition is protected by anti-discrimination law, offering a practical method that is flexible without being flaccid: it allows the law to reflect upon discrimination in the twenty-first century but also to reject frivolous ideas regarding discrimination. It does this in a way that has many advantages over the current rationales for anti-discrimination law.

First, the principle takes anti-discrimination law beyond identity and individualism. Stigmas are by definition contextual: they are socially determined and maintained, and to focus on them is to prioritize social meanings (Goffman 1990). The anti-stigma principle therefore necessitates reflection upon the role of society in discrimination. It widens the view of discrimination law to situate the individual in society and analyzes the role of society in everyday discrimination. The anti-stigma principle shifts attention to social responsibility as well as individual responsibility. Restoration of the link between discrimination and society is important because it firmly anchors discrimination law: discrimination law separated from society can lose its rationale, and measures to remedy past injustice or secure future equality are easy to attack as “reverse discrimination.”

Second, the anti-stigma principle highlights the idea of discrimination as the consequence of a process. There is nothing natural about stigma – a “mark” is given meaning rather than having any inherent meaning of its own. This process is a reminder that meanings are made and thus can be unmade. Third, it legitimates the use of law beyond the permanent/produced dichotomy: it includes immutable characteristics but is not limited to them. Fourth, it is flexible enough to facilitate both single dimension and intersectional discrimination: stigma can travel alone, but also in company, hence the anti-stigma principle accommodates intersectional as well as single dimension discrimination. It therefore reconstructs two aspects of the vision of anti-discrimination law – who it sees as well as how it sees. Fifth, it enables provision of legal protection for both historical and contemporary injustices, to support remedial goals as well as tackling current discrimination. Finally, as it is also sensitive to context, the anti-stigma principle can be applied in many places (for example throughout the EU) without needing to be uniform. When applied to weight, the anti-stigma principle provides a rationale for the inclusion of weight as a self-standing protected category in law.

The anti-stigma principle can be broken down into the following ten questions²²: When applied to weight, the anti-stigma principle provides a rationale for the inclusion of weight as a self-standing protected category in law. These questions are set out below, and answered using current research from a variety of fields.

• 1. Is the “mark” arbitrary or does it have some meaning in and of itself?

A fat body has no meaning in and of itself – it is paradoxical that in Anglo-American societies that otherwise stress individual choice there is little recognition of a right to be fat (Tirosh 2012).

• 2. Is the mark used as a social label?

Fatness is a highly stigmatized condition. The higher number of people living in larger bodies has not reduced the stigma associated with “overweight” and “obesity” and the fear of being fat (Puhl and Brownell 2003) continues to exist among all age groups (Brylinsky and Moore 1994; Wardle, Volz, and Golding 1995).

• 3. Does this label have a long history? How embedded is it in society?

Fatness has a contested history. O’ Hara (1996) suggests that in Ancient Greek societies fat women were considered beautiful; during Christianity, gluttony was considered a sin. His argument remains contested. Chrisler (2012) mentions that Magna Mater, the Earth Goddess was depicted as being short and round, with a fat waist and voluptuous breasts. Byrd (2004) points to the Statue of Liberty as evidence that there was a time when fat was a sign of health and wealth. Byrd also argues that Lillian Russell, who weighed over 200 lbs, was the “sine qua non of prosperous, well-heeled American beauty”, admired as much for her robust appetite as her sparkling diamonds. Yet after World War II women’s bodies became the targets of a new cult of thinness. The only exception to this was Black women: the ever nurturing, God-fearing full bodied trustworthy Black female “mammy” Aunt Chloe retained the ideal of the fulsome figure (Byrd 2004).

• 4. Can the label be “wished away”?

Fattism is so entrenched that it is easier for legislators to pass bills protecting food manufacturers rather than bills protecting from weight discrimination: by the end of 2019, only one US state – Michigan – and 6 cities have legal protection from weight discrimination. Other attempts have failed – in Utah an attempt was made in 2013 and in Massachusetts legislators have pushed for this since 2011. In contrast, at least 15 US states have adopted laws banning ”obesity” lawsuits such as New Mexico”s “Right to Eat Enchiladas” Act.²³ Weight stigma has also been described as a vicious cycle: “weight stigma begets weight gain” (Tomiyama 2014, 8).

• 5. Is the label used to stereotype those possessing it?

There are many collective beliefs held about persons who are “overweight” and “obese.” The more that behavioral understanding of weight is encouraged by official campaigns that stress healthy eating and lifestyles,²⁴ the greater the stereotyping. Stereotypes abound, especially for fat Black women. Shaw (2006) argues that in the USA, fatness and Blackness have a similar and complex relationship with the female body, as the twenty-first century ideal of womanhood is not only slim but also White. Thus, according to modern esthetic standards, both size and skin color undermine the viability of fat Black women to be accepted by the mainstream as women. Both characteristics (Blackness and fatness) necessitate “a degree of erasure” in order to render these women ‘“viable entities by Western aesthetic ” (Shaw 2006, 1). Only the capacity for mothering restores the viability of the fat Black woman in the western social imaginary – her big body ‘“represents an overabundance of maternal resources.”

• 6. Does the stereotype reduce the humanity of those who are its targets? Does it evoke a punitive response?

“Fattism” has been described as the “last great acceptable prejudice” (Pelling 2005; Rothblum, Miller, and Garbutt 1988). It exists in private spaces like the home²⁵. as well as public spaces such as the workplace (Korn 1997; Pool 2001; Solovay 2000), healthcare and education: employers associate fat employees with higher insurance premiums, greater absenteeism, and costs for accommodations, such as new desks and chairs for their use (Chrisler 2012). Medical professionals provide different levels of care (Flint 2015). Anti-fat attitudes are prevalent even among stigmatized communities (Whitesel 2014).

• 7. Do these targets have low social power and low interpersonal status?

Most fat people endure everyday public disdain and are often the target of overt discrimination, open ridicule and public humiliation (Pelling 2005). Higher size reduces work opportunities and life chances. One study of over 10,000 people found that “[b]oth men and women who had been overweight were less likely to have married, had completed fewer years of education, and had lower household incomes, lower self-esteem, and higher rates of poverty that those who had not been overweight” (Gortmaker et al. 1993, 11). It might be argued that there are an increasing number of fat celebrities, such as Lizzo²⁶. and Tess Holliday²⁷. but as James Cordon highlighted, in Hollywood fat men are rarely cast as a romantic lead.²⁸

• 8. Do these targets suffer discrimination as a result?

Weight discrimination is prevalent and thriving with impunity (Rothblum et al. 1990; Shinall 2015). It follows the same pattern and adverse outcomes (Wolfe 2012) as other forms of discrimination (Horner 2005) such as in employment. Fat women, such as Arazella Manuel,²⁹ Catherine McDermott³⁰. and Joyce English³¹. were refused jobs and promotion for roles in which they had successfully demonstrated competence. Jennifer Portnick who was 5ʹ8” tall and weighed just over 17 stone (240 lbs) was rejected for training as an exercise teacher because her fat body was considered to look unhealthy (Poole 2002).

In a poll of 300 senior leaders in major companies, more than 65% agreed that “fat people were seen as lacking in self-discipline and self-control, energy and drive” (Bento, White, and Zacur 2012; Jackson 2007).³² Researchers have found that if hired, persons who are “obese” earn less than “non-obese” employees (Shinall 2015. Studies show that weight discrimination (Roehling 2002) is evident at every phase of the employment cycle: career counseling, selection, placement, compensation, promotion, discipline and discharge.

• 9. Do the targets suffer exclusion?

Fat people suffer exclusion in employment, education, healthcare, access to public accommodations, goods and services. Empirical evidence shows that there is still a “wage penalty” for being “overweight” (Judge and Cable 2011) and fat women suffer more exclusion than fat men.³³

• 10. Is access to key resources blocked?

Fat people are over-represented in low-income population groups. Using poverty as a proxy for exclusion, in households with an annual income of less than 10,000, USD 33% of Black, 26% of Hispanic and 20% of White people were found to be “obese.” Black and single-parent (predominantly female) households tend to fall into this lower income bracket (Critser 2003).

Conclusion

This contribution has highlighted that legal protection from fattism is not just a feminist issue, but a Black feminist issue. Fat is not a general determinant of aptitude, ability or performance yet research shows that fat individuals are subjected to discrimination in multiple areas of everyday life (Pomeranz Jennifer and Puhl 2013). I hope to have made two things clear in this article. First, as argued by Dr Susan Jebb of the Medical Research Council, “the notion of obesity simply being a product of personal over-indulgence has to be abandoned for good” (Butland et al. 2007). Second, legislators need to use the anti-stigma principle instead of immutability as the logic of anti-discrimination law.

Weight discrimination occurs with impunity because of the widespread assumption that fat is mutable (Eric and Lee 2005) – behavioral public policies that promote weight loss encourage such views that fat individuals are to blame for their size. Thus, in line with attribution theory (Corrigan et al. 2003), weight discrimination only enjoys legal protection if it is an accident of disease or disability – this is at present the surest route to a successful legal action against weight discrimination. Subsequent contributions discuss how the Americans with Disabilities Act (ADA)³⁴ was used by Bonnie Cook,³⁵ Jesse Mercado,³⁶ Joseph Gimello³⁷. and Casey Taylor³⁸. to win their cases. In Europe, Kaltoft³⁹ also used disability discrimination law.

Fat can be a disability rights issue. However, this approach to protection is no longer good enough: weight per se is not a disability – under disability law, the disabling condition must be a certified medical condition, thus outside of Washington State ”obesity” per se does not meet the definition of a disability.⁴⁰ Entrenching protection from weight discrimination in disability law establishes fat bodies as an aberrant departure from a “normal” body. This is precisely the stereotype and stigma that courts need to address if fat people are to be protected from discrimination. Use of disability discrimination law in the long term barely improves the situation of fat people seeking protection from discrimination.

A new paradigm based on the anti-stigma principle will allow for a clearer and more consistent approach to tackling weight discrimination. The anti-stigma principle disrupts and at the same time provides a clear and effective logic to extend anti-discrimination law to prohibit discrimination on the basis of weight. The principle does not offer ready-made categories, but rather a series of questions that will guide the creation of categories in anti-discrimination law that are meaningful to the context. As weight discrimination satisfies all 10 questions posed by the anti-stigma principle, it should be added to the list of attributes protected under anti-discrimination law.

Disclosure statement

No potential conflict of interest was reported by the author.

Additional information

Notes on contributors

Iyiola Solanke

Professor Solanke is the Chair of European Union Law and Social Justice within the University of Leeds Law School. She is a former Visiting Professor at the Harvard University School of Public Health and Fernand Braudel Fellow at the European University Institute. She is the author of ‘EU Law’(Pearson 2015), ‘Making Anti-Racial Discrimination Law’(Routledge 2011) and ‘Discrimination as Stigma - A Theory of Anti-Discrimination Law’(Hart 2017) as well as many articles in peer reviewed journals. Professor Solanke is an Academic Bencher of the Inner Temple and founder of the Black Female Professors Forum, which promotes the visibility and progress of Black women in academia. She recently chaired the Inquiry into the History of Eugenics at UCL.

Notes

1. https://www.newsweek.com/body-beholder-181596

2. https://reykjavik.is/en/city-of-reykjaviks-human-rights-policy#6.%20Body%20build%20and%20type

3. Reg (RJM) v Work & Pensions Secretary [2008] UKHL 63, [2009] 1 AC 311 [5].

4. Case C-236/09 Association belge des Consommateurs Test-Achats ASBL and Others v Conseil des Ministres. [50] AG Opinion. See also paras 62–63, where the AG seems to challenge the modern utility of categories per se.

5. Frontiero v Richardson 411 US 677 (1973). See also Weber v Aetna Casualty & Surety Co, 406 US 164, 168 (1972); Garcia v Gloor 618 F.2d 264 (5 Cir. 1980), cert denied, 499 US 1113 (1981); Caban v Mohammad, 441 US 380 (1979); Holland v Illinois 493 US 474 (1990). Balog asks whether the trait has to be visible. See (Balog 2005), 545.

6. Wolf v Walker, 986 F. Supp. 2d 982, 1013 (W.D. Wis. 2014) the state court held that as it is “fundamental to a person’s identity,” sexual orientation satisfied the test of immutability.

7. De Leon v Perry, 975 F. Supp. 2d 632, 651 (W.D. Tex. 2014) (“[S]exual orientation is so fundamental to a person’s identity that one ought not be forced to choose between one’s sexual orientation and one’s rights as an individual – even if one could make a choice”).

8. Bassett v Snyder, 951 F. Supp. 2d 939, 960 (E.D. Mich. 2013) (“Even if sexual orientation were not immutable, sexual orientation is an integral part of personal identity”).

9. Golinski v US Office of Pers Mgmt, 824 F. Supp. 2d 968, 986 (N.D. Cal. 2012), hearing en banc denied, 680 F.3d 1104 (9th Cir. 2012), appeal dismissed, 724 F.3d 1048 (9th Cir. 2013) (“[A] person’s sexual orientation is so fundamental to one’s identity that a person should not be required to abandon it”).

10. Griego v Oliver, 316 P.3d 865, 884 (N.M. 2013) (“This [immutability] requirement cannot mean that the individual must be completely unable to change the characteristic. … Instead, the question is whether the characteristic is so integral to the individual’s identity that, even if he or she could change it, would it be inappropriate to require him or her to do so in order to avoid discrimination?”).

11. Varnum v Brien, 763 N.W.2d 862, 886–89 (Iowa 2009) (“[W]e agree with those courts that have held the immutability prong of the suspectness inquiry surely is satisfied when … the identifying trait is “so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change [it].’”’ (quoting Watkins v US Army, 875 F.2d 699, 703 (9th Cir. 1989)).

12. Re Marriage Cases, 183 P.3d 384, 442 (Cal. 2008) (“Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment”).

13. Kerrigan v Comm’r of Pub Health, 957 A.2d 407, 426 (Conn. 2008) (“gay persons, because they are characterized by a ‘central, defining [trait] of personhood, which may be altered [if at all] only at the expense of significant damage to the individual’s sense of self’ are no less entitled to consideration as a suspect or quasi-suspect class than any other group that has been deemed to exhibit an immutable characteristic” (quoting Jantz v Muci, 759 F. Supp. 1543, 1548 (D. Kan. 1991) rev’d, 976 F.2d 623 (10th Cir. 1992).

14. Latta v Otter, 771 F.3d 456, 464 n.4 (9th Cir. 2014). See also Hernandez–Montiel v INS, 225 F.3d 1084, 1093 (9th Cir 2000).

15. Obergefell v Wymyslo, 962 F. Supp. 2d 968, 990 (S.D. Ohio 2013).

16. Obergefell v Hodges, 135 S. Ct. 2584, 2596 (2015).

17. Degraffenreid v General Motors, 413 F. Supp. 142 (E. D. Mo. 1976).

18. Jefferies v Harris County Community Action Association, 615 F. 2nd 1025 (5th 1980).

19. These claims were brought under Title VII 42 USC 2000e-2(a) (2004) that prohibits workplace discrimination.

20. Toni Morrison’s Beloved tells the story of a slave woman who would rather kill her children than see them enslaved.

21. Further developed in (Solanke 2016).

22. These ten questions are developed in more detail in Discrimination as Stigma (Solanke 2017).

23. Senate Bill 291 introduced by Steve Komadina, 47th legislature, Session 1, 2005.

24. See for example the health campaign linked to COVID 19 in 2020: https://www.gov.uk/government/news/new-obesity-strategy-unveiled-as-country-urged-to-lose-weight-to-beat-coronavirus-covid-19-and-protect-the-nhs.

25. 47% of “overweight” girls and 34% of “overweight” boys reporting weight bias from families. See Puhl and Brownell (2001).

26. https://en.wikipedia.org/wiki/Lizzo

27. https://en.wikipedia.org/wiki/Tess_Holliday

28. https://www.theguardian.com/lifeandstyle/2019/apr/02/larger-actors-rarely-get-cast-as-romantic-leads-says-james-corden

29. EEOC v Texas Bus Lines, 923 F. Supp. 965 (S.D.TX 1996), 971.

30. McDermott v Xerox Corp, 102 A.D.2d 543 (1984), 544.

31. PECO v Pennsylvania Human Relations Commission and Joyce A English, 68 Pa. Commw. 212 (1982), 228.

32. “Obesity research: Fattism is the last bastion of employee discrimination.” Personnel Today (25 October 2005), available at http://www.personneltoday.com/hr/obesity-research-fattism-is-the-last-bastion-of-employee-discrimination/.

33. For example, in the airline industry women are subject to more stringent weight standards than men. In Frank v United Airlines a group of female employees, who had failed to comply with United’s weight requirements for women, successfully challenged the airline’s weight policy. United dropped its weight policy in 1993. See also Gerdom v Continental Airlines, Inc, 692 F.2d 602, 605–06 (9th Cir. 1982) where customer preference was rejected by the court as justification for a weight policy discriminating against females but note Sheela Joshi and Ors vs Indian Airlines Ltd, Writ Petition C Nos. 12,875–83 (2006), 31 May 2007 where the Indian High Court of Delhi upheld Air India’s policy as constitutional.

34. Americans with Disabilities Act (ADA) 42 USC § 12,102(2); see also Francis v City of Meriden, 129 F.3d 281, 286 (2d Cir. 1997). Under the ADA, a disability is defined as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. See Hazeldine v Beverage Media, Inc, 954 F. Supp. 697 (SDNY 1997) and Bragdon v Abbott, 524 US 624, 638–39 (1998).

35. Cook v State of Rhode Island Dept. of Mental Health, Retardation and Hospitals, 783 F. Supp. 1599 (D.R.I. 1992.

36. A California jury ruled (November 9, 1990) in favor of Jesse Mercado, who was fired by the Los Angeles Times for being too fat. The Times argued that Mercado’s body size was transitory or voluntary, but the jury found that he was protected by the California Fair Employment and Housing Act, which includes physical handicap and medical condition as protected categories.

37. Gimello v Agency Rent-A-Car Systems, Inc., 594 A.2d 264 (NJ Super. A.D. 1991). See also Maryland Human Relations Commission v Mass Transit Maryland, 294 Md. 225 (Md. 1982) where a Maryland Court ruled in favor of four women (Dorothea Goodman, Carlissa v Hawkins, Jacqueline Wilson, and Betty Wright) who were refused jobs as bus drivers by the Maryland State Transit Authority for being over their height/weight limit. The court ruled that the Transit Authority had perceived them as disabled and that they had been unfairly discriminated against. The case took 11 years to conclude and in remedy the women were given the opportunity to reapply for the jobs.

38. Taylor v BNSF at https://law.justia.com/cases/federal/appellate-courts/ca9/16-35205/16-35205-2018-09-17.html; https://harvardlawreview.org/2020/03/taylor-v-burlington-northern-railroad-holdings-inc/.

39. See also in Ireland Health Service Employee v The Health Service Executive, December E2006-013 – Section 6(1) of the Irish Employment Equality Act (EEA) covers discrimination on the grounds of disability, including actual and potential difficulties.

40. Torcasio v Murray, 57 F.3d 1340, 1354 (4th Cir. 1995). Torcasio, who weighed 460 lbs and had a waist of 78 inches, sued officials at Virginia’s Department of Corrections claiming that he had been treated unfairly because of his size. The court found that size alone did not qualify as a disability under the ADA.