Wednesday, November 16, 2011

Weight Bias at Work

Two-thirds of Americans are overweight, yet we're biased against those who are.  The bias plays out in many aspects of American life, including health care, but some of its most pernicious effects are in the workplace.  Here's a story I wrote for the AARP Bulletin.

'You're Too Fat'

Weight bias is on the rise in American workplaces

Tom Ferraro, a New Jerseyan who carries 270 pounds on his 5-foot-10-inch frame, got a job cleaning crypts for Carrier Mausoleum in the town of Mahwah. But soon he was back on the street — and he believes it's because of his weight.
See also: Older workers lose jobs for taking medical leave.

Overweight man's shirt buttons strain against gut - Weight bias and discrimination in the workplace
Discrimination based on weight is becoming more prevalent on the job front. — Photo by Mike Abbott/Alamy
In Ferraro's telling, company owner Serge Carrier walked into the room where Ferraro was working and, with two coworkers listening, declared him "too fat." Ferraro is now suing Carrier, claiming discrimination based on weight. The company "unequivocally denies" the allegations.
We are a nation of Tom Ferraros. Two-thirds of Americans age 20 and older have enough extra pounds to face health risks, according to the National Institutes of Health. But at the same time, we're overwhelmingly biased against overweight people, convinced they are lazy, weak-willed and unintelligent.
"In the workplace, it results in inequitable hiring practices, prejudice from employers, lower wages, discriminatory action and wrongful termination," says Rebecca Puhl, director of research at Yale University's Rudd Center for Food Policy and Obesity.
There has been a 66 percent increase in weight bias in the last decade, especially against women, Puhl reported in a study published in the Journal of Obesity. The numbers are now comparable to race bias.
And as we age, the problem becomes worse. "The further you are from the societal ideal of beauty, the discrimination you face is exponentially harder," says Sondra Solovay, an attorney and author of Tipping the Scales of Justice: Fighting Weight-Based Discrimination.
Here are four areas in which weight bias currently shows up in American life.
Gov. Chris Christie of New Jersey was the subject of widespread debate in newspapers and on cable TV earlier this year about whether his weight might affect his fitness to serve as president of the United States. Commentators raised the issue of Christie's health in office and the example he would set for the rest of the nation.
Christie called those commentators "among the most ignorant I've ever heard in my life." They "further stigmatize people in a way that is really irrelevant to people's ability to do a particular job," he said.
Christie ultimately decided not to run.
Next: Placed in less desirable jobs, less pay because of weight. >>

Hiring and firing
Jennifer Portnick of San Francisco had been an avid Jazzercise student for more than four years when her instructor asked her to become a teacher. To do that, the 5-foot-8 Portnick, who weighed 250 pounds, would have to become a Jazzercise franchisee.
Portnick says that when she applied, Jazzercise turned her down because she didn't meet its fit appearance requirements, telling her that she wasn't "leaner than the public."
Portnick filed a complaint under the San Francisco Human Rights Ordinance. In a settlement, she dropped her complaint, and Jazzercise dropped its fit-appearance requirement.
Jazzercise, citing recent studies and articles asserting the possibility of being overweight and fit, issued a statement: "Jazzercise has determined that the value of 'fit appearance' as a fitness criterion is uncertain, and therefore has eliminated this as one of the means of evaluating potential franchise applicants."
Working conditions
Overweight people who make it past hiring sometimes are placed in less desirable jobs or face outright harassment.
Bill Fabrey of the Council on Size & Weight Discrimination recalls that his late first wife, Joyce, weighed about 300 pounds and successfully managed her family business in New York City. But when the family moved to Rochester, she could only find undesirable positions.
"One was a bookbindery where cockroaches would fall from the ceiling onto her desk. Another was for the U.S. Postal Service, working a night shift of mail sorting," he says.
"She endured a lifetime of stigmatization on account of her size."
Weight bias drives down pay. Obese people's lower wages are so well documented that the phenomenon now has a name: the obesity penalty. For women, it's 6.2 percent, a 2004 study at Middle Tennessee State University found. For men, it's 2.3 percent.
However common it may be, weight bias is rarely directly targeted by current laws. Rather, attorneys invoke other antidiscrimination laws and argue that weight bias, though not specified, is covered by them. The most important is the Americans with Disabilities Act, which is enforced by the U.S. Equal Employment Opportunity Commission.
"Most cases that deal with obesity — and there aren't a lot of them — are brought under the 'regarded as' provision of the ADA," says Chris Kuczynski, an assistant legal counsel at the EEOC.
"An employee or applicant claims that an employer took an adverse action against them because the employer regarded the person's weight as an impairment," or disability.
An amendment to the law in 2008 made it easier to bring obesity actions, he says. It's no longer necessary for aggrieved employees to establish the employer's frame of mind. "Now," says Kuczynski, "they need only show what the employer did, not what the employer thought."
The EEOC is pursuing a lawsuit on behalf of the estate of Lisa Harrison, who was morbidly obese — meaning her weight was at least twice the ideal.
Next: Some advice if you're overweight and face bias on the job. >>

The agency claims that Resources for Human Development (RHD) of New Orleans fired Harrison in September 2007 because of her obesity, violating the ADA. Harrison was employed as a prevention/intervention specialist, working with young children of mothers undergoing treatment for addiction.
Because of her obesity, the suit claims, RHD perceived Harrison as being substantially limited in a number of major life activities, including walking. But Harrison was able to perform all of the essential functions of her position, according to the lawsuit.
RHD denies the claims. "Because many of the individuals we serve have disabilities," the company said in a statement, "RHD is particularly attuned to protecting the rights of people with disabilities, and we actively fight discrimination against such individuals wherever we encounter it in our work across the country."
The lawsuit is pending in federal court.
The EEOC has also argued that weight discrimination might violate the Age Discrimination in Employment Act and sex discrimination provisions of the Civil Rights Act of 1964.
For example, women flight attendants may be held to stricter weight standards than men. Or all employees may be held to a weight standard that some employees (such as those over age 40 or 50) may find more difficult to meet.
Only one state — Michigan — explicitly bars discrimination based on weight. A handful of cities do: Washington, D.C., San Francisco, Santa Cruz, Calif., Binghamton, N.Y., Urbana, Ill., and Madison, Wis.
But Puhl of Yale's Rudd Center says public opinion favors legal change. In a survey of 1,001 adults taken by her and her colleagues, 65 percent of men and 81 percent of women would support laws to bar weight bias in the workplace.
What should you do?
Meanwhile, if you're overweight and face bias on the job, what should you do?
The Rudd Center offers this advice:
  • First check to see whether your employer has a bullying or harassment policy and complaint procedure.
  • If the perpetrator is a coworker, speak to a manager; if a manager, go to human resources.
  • Keep track of what happens.
  • Join a support group for the chance to vent in a supportive environment.
Diane Cadrain is a Connecticut-based attorney and freelance journalist who writes frequently on employment issues.

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