Commentary: Weight discrimination is rampant. Why is it still legal almost everywhere?

The Borgata Hotel Casino & Spa in Atlantic City obsessively monitored the weight of its waitresses, according to 22 of them who sued it in 2008. They would be suspended, for example, if they gained 7% more weight than they had when they were hired. But a New Jersey judge threw out the suit, explaining that state law was silent about weight discrimination. The state Supreme Court affirmed the decision three years ago.

A hospital in Victoria, Texas, made headlines in 2012 after it imposed a strict body mass index (BMI) limit on employees - 35, in the obese range, was the cutoff - citing patients' expectations of what a health-care provider should look like.

The American legal system offers strikingly limited recourse for people who have been treated unfairly because of their size. Right now, cases like this stand a chance mainly in Michigan, where a civil rights law has prohibited weight discrimination for more than 40 years. (A handful of cities have similar ordinances, and the District of Columbia's ban on discrimination based on "appearance" offers less clear-cut protection; meanwhile, courts wrestle with the degree to which the Americans With Disabilities Act covers people who have been treated unfairly because of obesity.) But now Massachusetts lawmakers have introduced a bill that would make it illegal to discriminate on the basis on weight in that state. It's very concise, simply adding "weight" (and "height") to the list of protected categories in existing anti-discrimination law, alongside race, age, sexuality and disability.

Academic research shows that weight-based stigma, prejudice and outright discrimination are rampant. One review of studies found that 19% of adults with "Class I" obesity (a BMI of 30 to 35) reported experiencing treatment they viewed as unfair, in various settings. The figure rose to 42% for people who were more obese. At each level of obesity, women reported more discrimination than men.

The rise in U.S. obesity rates - by now, almost 40% of Americans meet the definition - has not reduced such stigma. A study published this year by two Harvard psychologists found that overtly negative attitudes toward people based on body weight had declined by only 15% from 2004 to 2016; in contrast, explicit racism dropped by 37% and explicit anti-gay feelings by nearly half. Even more strikingly, when the researchers examined "implicit" bias - unconsciously held attitudes, revealed through careful laboratory testing - weight bias (unlike every other type) appeared to be getting slightly worse over time.

It shouldn't be surprising that these biases translate into mistreatment of people in multiple settings. One review of existing research found statistically significant penalties for people who are overweight or obese at every step of the employment process: hiring, evaluations, promotion and firing. Estimates of a wage penalty vary, but most studies are consistent that one exists. In medical settings, reports by people who are overweight of biased treatment are legion. (You wouldn't have to be overweight, by BMI standards, to be protected by the proposed Massachusetts law; it would cover a case like that of the Borgata waitresses, who were punished for minor weight gain.)

Contrary to popular assumptions, calling negative attention to people's weight does not motivate them to adopt exercise regimens or otherwise improve their health. In fact, research suggests the opposite: Weight stigma worsens quality of life for people on its receiving end, even increasing mortality rates - probably because of such factors as increased stress and depression.

There's strong backing for laws banning weight discrimination, as studies by my team at the University of Connecticut have shown. From 2010 to 2015, support for such provisions increased from 73% to 79%, in a representative sample of adults nationally. Notably, our most recent research found no differences in public support by political orientation.

The testimony of people in favor of the Massachusetts bill - proposed, in various forms, several times in recent years - has been deeply moving. I vividly recall one woman, a public relations professional, who explained how her supervisor made her undergo humiliating weekly weigh-ins in his office to keep her job.

Many physicians, public health professionals and legal scholars have joined the chorus supporting the Massachusetts bill. So why are lawmakers there and elsewhere hesitant to act?

Skeptics of such laws offer several arguments. They suggest that, unlike race or age or gender, weight is largely under the control of the individual - ignoring genetic and environmental factors, prominent contributors to obesity. They say anti-weight-discrimination laws could make it illegal for a company to encourage weight loss among employees in an effort to reduce insurance costs. However, it is easy to design a nondiscriminatory wellness program that promotes healthy behaviors for all workers, rather than penalizing one group. Mostly they raise the specter of an explosion of unjustified lawsuits.

But that hasn't happened in Michigan: In 2018, according to the state's Department of Civil Rights, out of some 2,100 discrimination complaints received by the state, only 39 concerned weight. And Michigan's approach seems to be working. A survey of more than 1,000 state residents in 2013 found lower rates of self-reported weight-based employment discrimination, particularly for women, the main targets of mistreatment, relative to rates identified in other states.

In Massachusetts, the amusement park industry objected that the proposed law would make it hard for parks to comply with safety standards - namely, weight and height limits for certain rides. The latest version of the bill allows exemptions for federal, state and industry safety standards. And Michigan allows companies to appeal for exemptions from the law, in rare cases.

Weight discrimination is a legitimate and prevalent societal problem. It inflicts pain and suffering, causes financial harm, and impairs quality of life - and it should be banned, just like other forms of invidious discrimination.

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Puhl, a professor in the department of human development and family sciences at the University of Connecticut, is deputy director of the university's Rudd Center for Food Policy and Obesity.