In the United States, federal law prohibits employment discrimination based on traits such as age, disability, race, religion, sexual orientation, and gender identity. But despite over 40 percent of Americans reporting that they’ve experienced weight discrimination, weight is not a protected trait at the federal level. In fact, only the state of Michigan and a handful of U.S. cities specifically prohibit discrimination based on weight or appearance. So why haven’t other states or the federal government followed suit? And why does it matter?
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Why is weight discrimination still legal?
Why weight still isn’t a protected class at the federal level, and why it matters.
“Any time that we add to the list of protected classes, it represents the dedication of resources at the federal level, and particularly by the judiciary,” explains Dr. Jennifer Shinall, a law professor at Vanderbilt University. “And for that reason, Congress has been historically hesitant, all legislatures have been historically hesitant to add to the already existing group of protected classes.”
In Michigan, the Elliott-Larsen Civil Rights went into effect in 1977, prohibiting discrimination on the basis of “religion, race, color, national origin, age, sex, height, weight, familial status, or marital status” in employment, housing, education, and access to public accommodations. Weight, in this case, “became part of a larger issue,” according to Dr. Fatima Cody Stanford, an obesity medicine physician at Massachusetts General Hospital and associate professor of medicine at Harvard Medical School. “Because it became part of a larger issue,” says Dr. Stanford, “I think that’s what got it across the finish line.”
An effort to add weight to the list of protected classes will require challenging powerful institutions and public opinion, in which weight discrimination is deeply embedded. Recent research finds that Americans’ unconscious bias on the basis of race, sexual orientation, and age are dropping. But when it comes to weight, bias is going up. Dr. Shinall cites psychological opinion polls like these to help explain how stereotypes surrounding obesity contribute to weight stigma in the workplace. “When you ask subjects the kind of things that they associate with obesity,” she explains, “it tends to be things like laziness, lack of productivity. And to the extent that that is ingrained in employer’s minds, it’s hard to get rid of that stigma.” And stigma has real consequences for workers.
Obesity-related wage gaps have been shown to exist in the United States, China, and Chile, with the stigma and disparity being especially severe for women. According to a 2018 study, people in the UK workforce who are classified as obese earned about £2,000 less per year than their counterparts who are not obese. And wage penalties like these can compound with other types of discriminatory penalties in the labor market, such as those based on race, motherhood, and body size. A 2011 study in the United States found that “late-teen obesity is indirectly associated with 3.5% lower hourly wages for both women and men.”
But the quantity of labor statistics available to researchers to analyze pay gaps is an issue in and of itself. As Dr. Stanford says, “We can’t go in and look through a demographic subset of a labor statistics [to account for body size] where we can go and look, oh, we have X number of individuals of this racial or ethnic background or X number of women versus men, et cetera. We don’t have that key piece. But we do know from study after study after study... is that those individuals that are of size tend to be paid less.”
And law, according to Dr. Shinall, can be a powerful force for change. “The law can play a big role in helping to reduce stigma in the United States. It’s a signal, right? If we protect weight as a protected class, it’s a signal that we care about weight bias, and particularly we care about eliminating weight bias. And so the law could go a long way in signaling that this association between obesity and laziness or obesity and lack of productivity is not real and needs to be eradicated,” she says.
On the state level, some legislators are working toward creating change. In February of 2022, for example, Massachusetts lawmakers introduced a bill to prohibit body size discrimination, the result of an effort dating back to at least 2013.
In the meantime, you can make a change in your workplace today. “I think it’s really important for us to all take a deep dive within ourselves, because change begins with self, to discern whether or not we have these biases,” advises Dr. Stanford. “Until you start to see people in leadership that are of size on a consistent basis, which is about half the population...[only then] we can begin to have the world that we all desire, which is a cohesive role where people are judged based upon their character and not their aesthetic appearance.”
Whether as an employer or employee, advocating for the inclusion of body size in mandatory bias trainings, be conscientious of your own behavior, call out discrimination when you see it, and start conversations with elected officials and workplace representatives.
Watch the video above to learn more about how you can take action today.