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New York Times
15 Apr 2023

NextImg:Can Body Shaming Be Outlawed?

In 1961 at the age of 37, Jean Nidetch, who struggled with her weight for most of her life, signed up for a 10-week program offered by the New York City Board of Health called the “Prudent Diet.” Ms. Nidetch lost 20 pounds, but she grew disillusioned — to keep going, she would need the kind of motivation that she believed could only come from community. Borrowing the central tenets of Alcoholics Anonymous, she began inviting friends in a similar predicament to weekly meetings at her Queens apartment, where they would talk about the emotional roots of overeating and generally buttress one another in a shared commitment toward what was then so often pitifully called “reducing.”

The group grew and grew; the result was Weight Watchers, which, by 1968, could count five million members worldwide.

A half-century later, the notion of watching your weight, of subjecting your body to a daily metric surveillance for the sole purpose of becoming thin, had come to seem retrograde — a capitulation to the debased mandates of the patriarchy, another useless foray into self-reproof. In 2018, in an effort to meet the moment, Weight Watchers rebranded as WW, with the tagline “Wellness that works.”

Even if the move fooled no one, it affirmed that norms and ideals had shifted. In 2004, Dove broke out its Real Beauty campaign, featuring women in a wide range of shapes and sizes in its advertising. Three years ago Lizzo appeared on the cover of Vogue. It is now inconceivable that any fashion magazine editor would be caught talking about her own eating habits the way that Helen Gurley Brown did decades ago when she said that dinner when she was not dieting typically consisted of “muesli with chopped prunes, dried apricot, six unsalted almonds, a dusting of Equal and a cup of whole milk.”

But had we really swayed far enough in the other direction, toward genuine acceptance, away from the view that a low body mass index was something to venerate? Fat activists believe that we have not, which is why there are proposed laws in the New York City Council as well as in the State Legislature that would make weight (and height) discrimination illegal, particularly as it relates to employment and housing (exceptions would be made for certain occupations).

Whatever progress has been made, prejudice against the overweight has hardly been eliminated. Four years ago, researchers at Harvard published a study in the journal Psychological Science that looked at data from four million tests taken between 2004 and 2016 examining long-term changes in attitude toward historically marginalized groups. The study found that while explicit bias against the overweight had decreased by 15 percent, this represented a much slower decline than similar shifts in attitude toward gays and lesbians, where the figure was 49 percent. This may be because, unlike race or sexual orientation, weight is thought of as mutable. The only barrier to losing it, presumably, is a weakness of will.

Business leaders, who point to higher health care costs for obese workers, have predictably expressed concern that legislation of the kind under consideration would unduly burden the courts because of all the resulting litigation. In truth, these cases are very hard to push forward. We know this because Michigan has had a weight discrimination law on the books since the mid-1970s. (The state of Washington, the only one to have followed, added added its own law a few years ago.)

Recently, Jon Marko, a civil rights lawyer in Detroit, laid out the odds. Most of the time there is not direct evidence of bias, and while the Michigan law allows for circumstantial evidence to be brought in as well, that is a much harder route to building a case. “Direct evidence might be an employer who says, ‘Oh, sweetie, you need to lose some weight before you can get that promotion,’” Mr. Marko told me. “That is rare.” Sometimes a weight case can be embedded in a harassment case, and those are more promising. Mr. Marko offered the example of a boss in the habit of squeezing a subordinate’s love handles.

At the level of federal law, weight is not a protected category. Still, in 1992, flight attendants sued United Airlines on the basis that its weight requirements were too restrictive — the maximum weight for a 30-year-old, 5-foot-7 woman, for example, was 142 pounds. United wound up abandoning these rules altogether two years later, because the United States Court of Appeals for the Ninth Circuit agreed that the complaint was a violation of Title VII of the Civil Rights Act, which bans employment discrimination on the grounds of race, religion and sex. Men working in the same capacity at United were subject to more forgiving standards.

If colleagues are the ones making fun of your body — calling you “Pepa Pig,” which happened in a case Mr. Marko once had — the employer can be held liable only if it can be shown that the boss knew that the work environment was hostile. Mr. Marko gets many calls from people looking to sue over weight discrimination and ends up taking only about one in every 25 cases.

Legislation similar to what is being debated in New York has also come up for review in Massachusetts and New Jersey. Ultimately, much of the value of anti-discrimination laws is their capacity for messaging and deterrence and for the access to justice, however challenging it may be to secure. Weight bias affects women above all and low-income women in particular. According to one study, obese men make $2 less per hour than their average-weight counterparts; obese women make half of their average-weight counterparts.

Yet at the same time that the culture appears to be suddenly aware that skinniness at all costs is toxic, “wellness” has increasingly become a luxury commodity. The Starbucks barista is unlikely to be “maintaining her healthy BMI” on her $2,500 Peloton ($44 a month), or taking the $30 barre class across the street, or signing for an app like Noom, which costs hundreds of dollars a year, or paying roughly the same amount out of pocket for Ozempic. To be able to access the wellness lifestyle, she might try to go for something higher paying, maybe a front-of-house position at a restaurant in TriBeCa with a $46 branzino — but if she doesn’t already looks like Cara Delevingne, she’ll probably be told she is not what they are looking for.