Working for Justice

Can Size Discrimination Be Sex Discrimination?

Posted February 19th, 2015 by in Employment Discrimination.

From First Lady Michelle Obama’s Let’s Move campaign to NBC’s controversial hit show The Biggest Loser, Americans are flooded with messages about the obesity epidemic in this country and what it means for our long-term health.  But there’s been a lot less talk about how being overweight or obese affects individuals who are trying to navigate their way through the job market.  There is research showing that obese individuals tend to earn lower wages, but a recent study suggests that size is an especially serious problem for women workers – and discrimination may be one reason why.

Jennifer Bennett Shinall, an assistant professor at Vanderbilt Law School, reviewed employment data for thousands of workers and analyzed how men’s and women’s sizes affected which jobs they got and how much they earned.  She found that in jobs that emphasize personal interaction, like sales jobs, women who are morbidly obese earn nearly 5% less than women whose BMI is in the normal range.  That “obesity wage penalty,” in turn, drives heavier women out of jobs that are heavy on personal interaction and into jobs that emphasize physical activity, like home health or food preparation.  This further depresses the earnings for heavier women, because on average the physically demanding jobs pay less than the jobs emphasizing personal interaction.  But the same pattern didn’t hold true for men.  The study found no statistically significant evidence that obese men are paid any less for jobs that stress personal interaction than men whose BMI is normal, and no statistically significant evidence that heavier men are being driven out of these kinds of jobs.

So why are obese women being hit with an “obesity wage penalty” that obese men don’t seem to face?   Gender discrimination may be to blame, Shinall concluded.  She speculated that employers, co-workers, and customers may consider obesity less acceptable for women than for men, and therefore obese women who work in jobs that stress personal interaction are penalized while obese men in these jobs are not.   So what recourse do overweight or obese women have?  While there are no federal laws that protect against size discrimination, Shinall has suggested that employees look to pre-existing laws that prohibit gender discrimination, like Title VII of the Civil Rights Act of 1964.

In addition to gender discrimination, there may also be racial disparities that need to be considered.  African-American women and Hispanic women are overweight and obese at significantly higher rates than non-Hispanic white women; recent data show that 82% of African-American women and 77.2% of Hispanic women are overweight or obese, compared to 63.2% of non-Hispanic white women.  Do African-American or Hispanic women face a higher “obesity wage penalty” than non-Hispanic white women?  Shinall’s study doesn’t tell us, but if the answer’s yes, then size discrimination may not only be sex discrimination – it may be race discrimination too.

Alexandra Harwin

Alexandra Harwin

Ali Harwin is a partner in the New York Office of Sanford Heisler Sharp and Co-Chair of Sanford Heisler Sharp’s Title VII practice. Learn More

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