Is Discrimination Against Overweight Workers a Hefty Problem?

job interview It's been called the American epidemic -- 34 percent of us suffer from obesity, according to the Centers for Disease Control. Another 34 percent are overweight. And while any American is familiar with the imagery of an overweight population, what perhaps is most striking about the national obesity outbreak has been the pace with which it has overtaken the country.

No state reported obesity rates higher than 20 percent in 1985. But in the intervening 26 years, every state besides Colorado, as well as Washington D.C., has since surpassed that clip.

The rapid spread of the obesity epidemic has made it a challenge for the country's infrastructure to keep up. The health care sector's efforts to keep medical costs low have been greatly complicated by the problems caused by the country's rising weight, analysts have long said. The labor sector, for its part, has seen long-standing biases against the overweight become only more pressing.

Studies conducted by journals like Health Economics peg the wage difference at around 6.2 percent less for the overweight. The mistreatment of the overweight, either via lower wages or a failure to hire and promote, is often presented as a question of productivity. But leading advocates for the overweight say such an argument is a smokescreen for outright discrimination.

"It's a total scapegoat," says Lisa Tealer, the Director of Programs for the National Association to Advance Fat Acceptance (NAAFA), during an interview with AOL Jobs. "What you'll hear is, 'Our clients either prefer skinny or better looking people,' or some variation on that. But in terms of being a good worker, thin and healthy are not the same."

Operating on those very arguments, some localities have begun protecting the overweight in the workplace. Six cities (Santa Cruz and San Francisco, Calif.; Madison, Wis.; Urbana, Ill.; Washington, D.C. and Binghamton, N.Y.) and the state of Michigan, have laws against weight discrimination. As an early forerunner on the matter, Santa Cruz added weight in 1995 to the following list of civil rights classifications to be protected in the workplace: race, color, creed, religion, national origin, ancestry, disability, marital status, sex, gender, sexual orientation and height.

The burden, however, is still quite high for workers to prove the discrimination.

"Most employers would not admit this, and would say they are more productive or whatever," says Jennifer Pomeranz, the director of Legal Initiatives at the Rudd Center for Food Policy and Obesity at Yale, in an email to AOL Jobs. "But if they were sued for not promoting or hiring someone based on their weight, generally the plaintiff does not have a case outside of Michigan."

The lone exception across the land is in the case of a registered disability, which is protected under the Americans with Disabilities Act. But the percentage of the obese whose condition is a formal disability is scant, says Pomeranz.

Indeed, the lack of a legal framework for the overweight has led plaintiffs to raise other potentially related issues in the hopes of achieving justice.

"Most cases you find on this are couched as sex discrimination, because there's some establishment there," says John Donohue, a professor at Stanford Law School, in an interview with AOL Jobs.

Such a protective framework was created in the 1960s amid civil rights advances and in the wake of a series of lawsuits brought against airlines for their hiring practices. (Pan Am got into trouble for saying customers liked their pillows fluffed by beautiful women, Donohue says.) Title VII affirmed in 1964 set the standard of the "bona fide occupational qualification." If a job description calls for certain attributes, such discrimination is accepted.

"As long as the discrimination is applied evenly with men and women, then it's seen as 'OK,' " says Donohue. "When people walk into a plastic surgeon's office, they want to see an attractive receptionist, whether it's a man or a woman."

But the genders are not treated equally with regard to weight and employment. A recent study published by the Journal of Applied Psychology found that women who are 25 pounds below average weight earn an additional $15,572 per year, while men who are 25 pounds below average weight earn $8,437 less per year.

Much of what causes the unequal treatment across gender lines is chalked up to what scholars call the cultivation theory -- that our societal expectations derive from media depictions, specifically on television.

"You don't see positive images of fat women," says Tealer of NAAFA. "For men, the Churchills and Henry VIII are classic.... the big, powerful man is still respected."

For a full understanding of such instances of workplace discrimination, the categories must be expanded beyond classic male and female, says John Cawley, an economics professor at Cornell University. For one, heavier African-Americans females are valued in a way that their white counterparts aren't, and that's evident in wages.

The key for figuring out a response to any of the above is knowing the mechanism for the wage inequality, says Cawley. And only then can a society know what to protect, and what should be considered fair rules of the market.

The school on wage discrimination was established by Gary Becker, whose 1957 book, "The Economics of Discrimination," linked unequal pay to a variety of employment classifications. In the intervening years, economists have set out to determine whether the mechanism is purely the employers' discrimination, conscious or not, or in fact a result of better performance on the part of the higher-paid groups.

Economists point out that performance can take the form of fewer demands on a group health care plan, as the overweight tend to have more health problems. One economist who embraces the productivity view is Dan Hamermesh, of the University of Texas at Austin, whose book, "Beauty Pays," will be out in August.

"The trick is we just don't know for sure," says Cawley.

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