Fat is the New Black

by SSFC on December 28, 2008

Progressive members of the City Council of Binghamton New York have expanded the boundaries of civil rights in their fair city to include protection for citizens on the basis of sexual orientation, nothing shocking in a university town.  What is surprising is that the law also protects Binghamton citizens from discrimination in employment, housing, education, and public accommodation on the basis of height and weight.  Presumably in the future, Binghamton bean poles will have to yield to their shorter peers for slots on basketball teams, and the horizontally expansive will be able to demand wider doors and sturdier seats in restaurants and shops.

According to the law’s chief proponent, Binghamton Council member Sean Massey, it is a “sad fact” that a law protecting the undertall or the overweight is necessary, and even if it isn’t, “It’s simply the right thing to do. … It is the human thing to do.”

While it’s not at all clear to me, from a simple google search, that Binghamton was experiencing a tide of discrimination against the short, the tall, the fat, or the cadaverous before the passage of this law, it’s also unclear how this law will in fact promote its author’s vision of Harrison Bergeronlike equality of outcome for people of nonstandard body configuration.  Will morbidly obese firemen be able to sue the city for discrimination if they are not provided assistance in climbing ladders and carrying victims?  Will students whose body mass makes them unappealing by conventional standards of good looks now demand appointment as homecoming kings and queens on the ground that they are denied a fair shot in student elections?  And how, exactly, will the city determine that someone was denied housing on the basis of height or weight?  While one assumes that signs reading “Fat people need not apply” are being removed from apartments all over Binghamton, apart from that what does this accomplish, other than making the Binghamton City Council feel good?  Gannett: “Council Passes Rights Law”, Weekly Standard: “The Politics of Fat”, thanks to dispatches from TJICistan for the pointer.

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The Laconic Law Blog » Blog Archive » Height and Weight Discrimination?
12.30.08 at 1:54 pm

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1 Todd Rogers 12.28.08 at 2:47 pm

Given the adage of truth being stranger than fiction, I anxiously await the oddities of unintended consequences. As you noted, when a seven hundred pound fire-fighter passes the lowered bar entrance test and is then unable to climb a ladder thereby having a hand in someone perishing, who will be held accountable? It will be reminiscent of “The Biggest Loser.”

Why? Because it’s simply the right thing to do. Nice, very nice.

2 Jonathan 12.28.08 at 3:54 pm

Will uneducated blacks be able to sue for jobs in an aerospace laboratory? Will white women be forced to marry black men on the grounds of discriminatory treatment in dating? Will movies about the founding fathers have to include black actors to avoid liability? Better not pass the Civil Rights Act.

3 John Leary 12.28.08 at 4:08 pm

What about people who are oriented to use their left hand? They should be protected too.

4 SSFC 12.28.08 at 4:10 pm

Jonathan, while I’m not inclined to spend the time required to write an essay on the moral differences between discrimination based on weight and discrimination based on race, your comment strikes me as rather silly.

5 Gormless Worm 12.28.08 at 5:11 pm

Take a step back and look at this from a realistic position. Fat people (with rare exceptions) are FAT because of personal behavior. Tall people…well that’s life’s lottery at work. As a result…tall people cannot sit comfortably in planes, buses, cars or just about every other mode of transportation. They hit their heads on low hanging branches, door jams (especially in Europe due to the age of the dwellings), and various other overhangs. Tall people continuously have to adjust their life styles to accomodate all structures built for…as they put it…the “UNDERTALL.”

We need an advocate…
GW 6’6″

6 Todd Rogers 12.28.08 at 5:21 pm

I just finished dinner and I can now answer my own question: the company who made the ladder will be held accountable. They should have done more to make the ladder more usable to those who are gravitationally disadvantaged.

7 Aaron 12.29.08 at 8:33 am

Does the law include an exception for bona fide occupational requirements. If so the fireman thing is a non-issue.

8 CarLitGuy 12.29.08 at 10:22 am

“gravitationally disadvantaged” ? I think we might need an alternate P/C descriptor here. I seem to recall from high school physics that gravity pulled on all objects equally, assuming those objects to be in gravitational fields of the same strength. The famed “bowling ball and feather, falling in a vacuum” experiment… If anything, the 700# fireman example provided above is perhaps better described in our theoretical falling situation as “air resistance advantaged” when compared to my significantly smaller frame.

9 Xmas 12.29.08 at 11:12 am

Jalopnik (I think) had a good term for fat: nutritional overachiever.

WTF, “undertall”. I think a short person would kick me in the ankles if I called them, “undertall”.

10 Dirk D 12.29.08 at 11:35 am

CLG,

While you are correct that acceleration due to gravity is constant without regard to mass, the gravitational pull between two objects is related to their mass (ie the earth and a fat man). This is one reason you rarely see a 500 pound man with a decent vertical leap.

11 SmokeVanThorn 12.29.08 at 4:34 pm

The “fireman thing” is not a non-issue even if the absence of debilitating obesity is a BFOQ; rather, it becomes a basis on which claims are made, and time and resources are spent.

12 Walter Olson 12.29.08 at 5:21 pm

I’m still on vacation, but just wanted to say that if you find suits of this sort a fantasy or complete non-issue, you might want to check out this piece of mine from a decade ago about physical employment screening, safety, and discrimination law. Would-be firefighters incapable of carrying a body down a ladder can already challenge their exclusion under existing anti-discrimination law, even absent any ordinance like this, on the grounds that upper-body strength requirements unfairly tend to exclude female applicants for firefighting jobs. The ACLU and like-minded groups have filed many such suits and have often prevailed.

It’s true that federal courts have moved toward somewhat more pro-employer interpretations in the years since then, but it’s also true that Congress has lately been moving once again to liberalize the employment-discrimination laws to allow more suits, higher damages, etc. If an applicant in Binghamton has any case based specifically on obesity as a directly protected class, it will presumably have to go forward under some provision of New York state law.

13 jb 12.29.08 at 11:58 pm

and the horizontally expansive will be able to demand wider doors and sturdier seats in restaurants and shops.

Why only the horizontally expansive? As a thin person, I need some personal space. Allowing only those people whose bodies actually take up the extra space to sue would discriminate unfairly against thin people.

14 Mike 12.30.08 at 8:36 am

Time to get real. America keeps lowering the bar through all these “protect” those who refuse to help themselves programs. Hence, our history of being a competitive nation is almost gone. These special interests programs are costing the taxpayers millions. The world sees the US as FAT, LAZY, SELF-CENTERED, and CORRUPT. Let the strong survive and the weak step aside — and the nation will be better off.

15 Todd Rogers 12.30.08 at 9:26 pm

Couldn’t Binghamton just concoct an anti-trans-fat ordinance, make it retroactive, and thus create a tidal wave of discrimination lawsuits? Plaintiffs could go through life fat, drunk, and stupid and proclaim victimization.

16 Lenn Warde 12.31.08 at 8:41 am

Obviously it would be foolish to demand that overweight people should be hired in professions that are ill suited to them.

Likewise, however, it is irrational to discriminate against the overweight in jobs where physical ability IS NOT A FACTOR. Studies have proven that it is hader for the overweight to get jobs even where weight is unimportant. For this reason, I agree with this law.

Recently, insurance companied have been trying to charge employers more for hiring overweight people. I expect a lot of the readers of this blog to applaud this move. OK. As long as you are forced to pay extra for YOUR chosen “risky” behaviors. Don’t eat 20 oz of vegetables a day? $2000 more for insurance per year. You still eat meat? $2000 more. RED meat? $2000 further. Do you have sex? All sex carries some risk of disease. $2000 more, and another $2000 more if any of it exchanges fluids or involves skin contact not protected by latex.

17 Dirk D 12.31.08 at 10:06 am

” You still eat meat? $2000 more. RED meat? $2000 further.”

Subtle vegetarian trolling.

18 Lenn Warde 12.31.08 at 2:51 pm

Not really, I love meat. I’m just saying that if the insurance companies are allowed to hedge their bets on the overweight on the grounds that it’s a choice, they can and will begin doing the same thing with any behavior they can get away with. I can think of lots more. Using salt at the dinner table. There’s something I actually am against that is unhealthy. Eating potatoes or pasta at every meal. Trans fat. Omega 6 fatty acids.

There, you can say I’m a propagandist against those things. Now, let you go be turned down for employment if your blood sodium is higher than mine.

19 Jonathan 01.02.09 at 2:37 am

My earlier post was silly but the overall point was that such an anti-discrimination rule need not be taken to absurd extremes. Bork used to do this with the Civil Rights Act and the Dinner Party story with his students.

And whilw I may agree that racial discrimination is a more severe and hurtful policy than discrimination on the basis of weight, I think the underlying principle is that employers should not discriminate against job applicants on the basis of a quality that has no impact on job performance, like most disabilities, race, or gender. Now we even protect some classes whose qualities obviously impact job performance – age, speaking accent, marital status, some mental illness, etc.

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