As the last and final post in this series, I would like to acknowledge the counterarguments that are often advanced against making body size a protected characteristic. First, should employers be obligated to be liable if an obese or overweight employee incurs high cost for a company for insurance coverage or medical expenses? Should an employer have to spend the money to change the workplace environment?
On this website
, one individual makes that argument, stating, “…does not the employer have a legitimate, non-discriminatory reason for not wanting over-weight individuals on their payroll who will make health insurance likely more expensive for everyone. And don't obese individuals tend to be, on average, more absent from work because more frequent health problems?”
I would also argue that there are certain diseases attributed to people of a particular gender (breast cancer in women), a particular race (sickle cell anemia in African Americans), and national origin (Tay Sachs in Eastern Europeans). Would an employer be able to discriminate against these individuals as well? The counter argument for this as well would be that these diseases are not as common as obesity. I would question if empirical research exists that proves that obese employees tend to miss more work than other employees due to their obesity and as a result make health insurance more expensive. I think, as in other Title VII cases, applying the undue burden standard, as in cases with religion and disability, would be able to make compromises for employers and overweight or obese employees.
If an employer can discriminate against an overweight or obese person for the likelihood of being unhealthy, could an employer discriminate against an extremely thin person on the likelihood they could be unhealthy also?
Although there has been research that suggests that obesity is correlated with heart disease, there have also been findings that obese and overweight individuals suffer from things like stress and depression from the way they are treated by others. Could it possibly be that the way they are being treated by others continues to be perpetuated and contributing to their physical state?
There has been research suggesting that overweight women endure weight discrimination. This MSNBC article
notes that, “In a recent Yale University survey of about 2,000 overweight women, 53 percent of those polled said co-workers stigmatized them, and 43 percent said their employers stigmatized them. Being stigmatized translated into not being hired, being passed over for promotions, losing a job, or being teased or harassed because of their weight.” However, does the same occur to overweight men in the workplace?
Additionally, if body size became a protected characteristic, a BFOQ defense would still be applicable to those jobs in which it is necessary to be a certain body size.
Although body size is not a protected characteristic now, there have been some ways that overweight individuals are taking this to court. For example, some individuals could sue on the basis of gender discrimination. As Laura Kipnis in her article Fat and Culture takes note, “…it’s safe to say that any issue of physical appearance affects women far more disproportionately than men,” (218).
Another argument supportive of individuals of a particular or perhaps bigger body size is to sue on the basis of disability in which for some have been able to argue that obesity or being overweight is a metabolic disorder, as mentioned in the MSNBC article
, but has not been quite successful.