The Slim and the Heavy: Weighing the Costs & Benefits of the Proposed NYC Weight & Height Anti-Bias Law.
Will a NYC law Protect of the Obese—
but at everyone’s expense?
By Michael Diederich, Jr.
On May 11, 2023, the New York City Council passed a bill that, if enacted, is intended to protect employees working in the city against discrimination based upon height or weight. If signed by Mayor Eric Adams, the law will become effective in 120 days. It will be among the first of its kind in our nation, and among nations. The European Union has addressed the subject and offers some protection of obesity as a disability. Yet at the same time its policy is to help reduce obesity. NYC’s proposed law is the first for such a large body politic.
This proposed law is very different from most other federal and state antidiscrimination laws, because weight is not, at least technically speaking, an “immutable characteristic” of any human being. Diet and lifestyle – personal choices – can significantly affect a person’s weight, unlike a person’s race, national origin, sex, gender preference, or disability.
Moreover, holding a negative view toward obesity is arguably not per se injurious to obese individuals and society at large. In fact, the health risks associated with obesity are well documented. Health care professionals warn of the “epidemic of obesity” in the United States. Health advocates urge measures such as healthier diets, foods and exercise to reduce weight in an American population in which 42% of adults have obesity (and 50% among African Americans). In fact, 10 years ago in New York City Mayor Michael Bloomberg was considering a city-wide ban of super-sized sodas and sugary drinks as a public health measure. Similarly, First Lady Michelle Obama led an initiative for healthier school lunches and encouraging more physical activity for to combat childhood obesity.
European policymakers recognize the dichotomy of unfair bias versus unhealthy living. The European Union grants obesity protection as a disability, yet at the same time seeks to help the obese control their weight as a matter of personal and public health.
It is a scientific truism that genetics significantly influence weight. A person’s genetic makeup is an immutable factor, beyond an individual’s control.
Yet many other factors affect one’s weight. One factor is the mass-marketing that addicts people to junk food and sweets for corporate profit. Another is public schools’ addicting children to high calorie and unhealthy foods. Another may be a health-care industrial complex that profits from an obese American population, where so many different ailments requiring medical care result from being overweight—heart disease, high blood pressure, and diabetes, to name a few. The CDC reports that obesity costs the U.S. healthcare system nearly $173 billion a year.
Is legislation that some may see as promoting (or at least not discouraging) obesity wise? Maybe not. Yet victims of weight discrimination feel the pain of prejudice. And with a large number of overweight and obese people in New York City (and in America), elected representatives want to help. But politics aside, is this wise as policy?
It is easy to see why advocating for overweight voters could benefit elected officials. Politicians also appreciate support from lawyers, and the employment law bar—both employee-side and management-side will profit from new anti-discrimination legislation such as this.
Yet the overarching question should not be who profits from adding “obesity bias” to the protections afforded by the New York City Human Rights Law. Rather, it should be weighing the interests of those who are protected by legislation prohibiting obesity bias against the economic and human costs of prohibiting it. It is a balancing. To what extent is enacting city (or state, or federal) legislation making discrimination against the obese unlawful beneficial to individuals and society, and to what extent might it be harmful?
I examine these competing interests next.
A. The employer’s dilemma – fire, or don’t hire, an overweight worker?
Currently, there is no legal protection for an employee against termination of his or her employment specifically for being overweight, absent an accompanying legally cognizable disability. An overweight (or underweight) individual might find legal protection under N.Y.S. Labor Law § 201-d. Consuming more (or less) than is necessary for nourishment is arguably a “recreational activity” covered by Labor Law § 201-d (1) (b), with discrimination “because of … legal use of consumable products” prohibited under § 201-d (2) (b). If so, perhaps the proposed city law is unnecessary.
An unintended consequence of the proposed law is that some employers in New York City who employs overweight individuals might determine that it will be in the employers’ self-interest to terminate overweight employees before the city law takes effect. This is especially the case if the employer had, for example, commented upon the person’s weight in the past, even if only in jest and not with malice. Such comments, particularly if not merely “stray comments,” could be used against the employer in a future wrongful termination case, even if the employer terminated the overweight employee for legitimate, nondiscriminatory reasons.
Thus, from an employer’s point of view both as to existing and future employees, the city law regarding weight is problematic. Consider various hypotheticals:
· the employer who repeatedly urged one employee to lose weight because the employee was morbidly obese, and another to gain weight because of anorexia, and the employer sincerely believes that the employee would suffer serious health consequences and an early death if the weight problem is not addressed.
· Employer who holds a subconscious animosity towards overweight or anorexic people, but nevertheless employs them.
· An employer who expects employees to do vigorous physical labor on the job might believe the labor to be unduly arduous for a seriously overweight or underweight (both “out of shape”?) employee, perhaps even precipitating a serious health issue (e.g., heart attack or stroke) on the job.
· The small employer who would consider hiring an overweight or anorexic individual under present law, yet be reluctant under the new law because of the possibility of a weight-discrimination lawsuit in the future if the employee is hired but then fired for poor job performance.
· The employer needs to “downsize” the company and perceives an obese or anorexic employee as less productive than other employees. The employer decides to lay off the more productive employee, rather than be exposed to the risk of litigation under the proposed new law.
It may not be “politically correct” to raise the above scenarios, yet employers will act in their perceived (and sometimes biased) self-interest. A law’s good intentions may have undesirable results when put into practice.
The last bullet above identifies competing interests of two classes of employees, the overweight/underweight versus average-weight employees, and an employer’s legal dilemma in hiring and downsizing determinations.
B. Protected and Unprotected Employees’ points of view
As to weight, there are basically two classes of employees, namely, those of “ordinary” weight and those who are not (because they are either overweight, e.g., obese, or underweight, e.g. anorexic). Employees in these two classes may have distinctly different points of view.
For example, the point of view of the overweight employee may be reflected in the view of Tigress Osborn, the chairwoman of the National Association to Advance Fat Acceptance, that “[a]nti-fatness doesn't just break our hearts - it drains our wallets, steals our opportunities, and limits our lives.”
On the other hand, a more competent, better-performing non-obese employee will certainly beg to differ if she is laid off instead of a less competent, lesser-performing obese employee because of the employer’s fear of an obesity bias discrimination lawsuit. Firing a trim, athletic breadwinner may “break the hearts” of that person’s family, if fired because the employer feared litigation. By protecting one class of workers, the “average size” employee will be disadvantaged by the law when it comes to a downsizing. The employer might be worried about a lawsuit from an obese or anorexic employee, and therefore terminate employee who is not in the “protected class.”
Conversely, when it comes to hiring, the obese candidate for employment may be penalized by the City’s law, because an employer who today would not think twice about hiring an overweight or underweight employee might have second thoughts if the new law is enacted, because liability may result if the employee in the newly protected class is subsequently terminated.
But does the argument above apply to every anti-discrimination law? No. Laws against race, national origin, age, sexual preference and disability discrimination protect people who are in a disadvantaged minority group and perhaps treated unfairly due to an immutable characteristic. Anti-discrimination laws provide statutory protection when there is sometimes even a constitutional need, for example, to protect a “discrete and insular minority.” In Justice Harlan F. Stone’s words:
“[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”
If overweight and underweight employees make up the majority of voters (which may be the case), they cannot be regarded as “discrete and insular.” Unlike sex discrimination, which protects both male and female workers, only those within the protected class will be protected by the proposed city law. As to sex, women have historically been discriminated against and lacking political power. As to weight, not so.
C. Society’s interests
Anti-discrimination laws have historically been designed to reduce and eliminate discrimination and bias motivated by evil intention or unfounded fear. However, when it comes to obesity, the city’s new antidiscrimination law may be a remedy for employment decisions that do not involve evil intention or unfounded fear. The remedy is against bias. Yet the remedy may punish good intentions and reasonable fears, some of which identified in the above hypotheticals.
Will the proposed law result in scenarios that produce unfair outcomes for the employer, society as a whole, and even the obese individual? Yes. What if an employer observes that an employee is gaining weight and suggest, or even encourages, the employee to change diet or exercise, for health reasons? Such action can be viewed as unlawful, even though done with good intentions and the employee’s (and society’s) welfare in mind. Will the law be abused by some? Sure. An employee might gain weight intentionally in order to gain entry into this new protected class. Or what if an owner of a company is obese and has one group of subordinates who regularly work out at the gym and another who regularly overeat at the pastry shop? In a layoff, the new law will favor the pastry-eaters.
On the other hand, the City Council was persuaded by many individual stories of weight bias that did seriously harm individual human beings. For so many Americans, controlling weight is as exasperating problem, with others’ employment-related bias compounding a difficult personal problem, perhaps making it insufferable.
As with all proper legislation, there must be a wise balancing of individual and societal interests. The proposed city law seeks to protect especially overweight individuals against animus. Yet it may create more harm than good. If the Mayor signs the proposed city law, then time will tell whether the overall benefits exceed the overall burdens on individuals, workers and society.
One thing that will be certain is that junk food manufacturers, the health care industry and lawyers will profit from an increasingly obese and increasingly unhealthy New York City population.
Michael Diederich, Jr. May 23, 2023 copyright
See, Nathalie Jimenez, New York City passes law barring weight discrimination, BBC News (May 12, 2023), https://www.bbc.com/news/business-65562288, Emma G. Fitzsimmons, New York City Is Set to Ban Weight Discrimination, New York Times (May 11, 2023), https://www.nytimes.com/2023/05/11/nyregion/weight-discrimination-nyc.html ; see also, The Brian Lehrer Show - NYC Council to Ban Height and Weight Discrimination, WNYC (May 11, 2023), available at http://www.wnyc.org/story/nyc-council-ban-height-and-weight-discrimination.