Woman and obesity in the workplace: a fat ceiling replaces the glass ceiling

Issue: December 2015

LOS ANGELES — Women with obesity often encounter wage and employment penalties that men with obesity do not, and framing the disease as a women’s issue may provide certain legal protections under discrimination law to counteract the trend, according to a presenter at ObesityWeek.

Jennifer B. Shinall, PhD, JD, an assistant professor of law at Vanderbilt University Law School, said multiple studies show that obesity has a disparate effect on women, and the public discourse surrounding the disease must be reframed.

Jennifer B. Shinall

“Obesity is typically framed as solely a health issue ... and it is certainly a health issue,” Shinall said during a presentation on the impact of obesity on women. “But it is also framed as both a voluntary issue and a mutable issue. People view [obesity] as a choice ... that they can simply choose one day to lose weight.”

From a legal perspective, Shinall said, the distinction that obesity is voluntary and mutable is an important one “because typically, discrimination laws only protect on the basis of involuntary characteristics and immutable characteristics.”

By framing obesity as an involuntary and immutable disease, legal protections could follow that would provide distinct benefits to women, she said.

Shinall cited studies showing that women with obesity are often excluded from high-paying public interaction jobs, whereas men with obesity are not excluded from such positions. Due in part to a “false stigma” surrounding obesity, women, in particular, who struggle with the disease often find themselves working lower-paying physical activity jobs, contributing to a “wage penalty” based on weight, she said.

“Health literature suggests that the health penalty for remaining obese may be greater for women than men,” Shinall said.

Weight discrimination is not explicitly illegal under federal law, although Michigan and nine U.S. cities currently have weight discrimination laws in place, she said, adding that one possible remedy is to frame the weight-based discrimination as a women’s discrimination issue, citing Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in the labor market.

A women with obesity who encounters discrimination could have a valid claim against an employer, Shinall said, precisely if the employer is treating other women without obesity very well. Shinall described this as the “sex-plus theory,” in which an employer treats a certain characteristic in women more negatively that that employer treats the same characteristic in men.

There also is potential for legal relief for women with obesity under the Affordable Care Act, she said. Women denied coverage for medical or surgical weight-loss procedures can cite the “disparate impact theory,” a facially neutral practice that disparately affects a legally protected group – in this case, women.

“This is obviously a new legal theory, but it is supported by the plain language in the Affordable Care Act,” Shinall said.

“The next step is encouraging obese women to come forward and enforce their already existing rights under the Affordable Care Act,” she said. – by Regina Schaffer

Reference:

Shinall JB. Another gender gap: The disparate impact of obesity on women. Presented at: ObesityWeek; Nov. 2-6, 2015; Los Angeles.

Disclosure: Shinall reports no relevant financial disclosures.