By Abigail Hester
Associate Editor, Vol. 26
Let me set a scene:
You’re a waitress. You’ve been in quarantine for months and are finally, finally, getting to return to work. You’re weary about COVID, but desperate to receive a consistent paycheck. During your quarantine, you’ve been one of the lucky ones. You have not been sick, and you’ve had enough money for food and shelter. In fact, you’ve gained weight over the months. (This should be irrelevant, but I’ll get to it).
When you arrive to work on your first day back, the first thing your manager comments on is not your good health, your mental wellbeing, or your family. Your manager points out your weight gain. According to him, your weight has made you “less attractive.” He gives you a week to lose the weight, or he’ll find someone else that “looks the part.”
You’re hurt. You’re pissed. And chances are, there’s nothing you can do.
Most states have adopted the long-standing practice of at-will employment, which allows employers to fire employees for whatever reason. But, we have restricted this discretion. Title VII of the Civil Rights Act of 1964 grants employees protection by restricting an employer’s ability to terminate individuals on the basis of race, color, religion, gender and national origin. The ADA later added ability and age to the list of protected categories. Missing, however, are protections for size and/or appearance. Currently, there is minimal legal recourse for those who have been discriminated against or stigmatized because of their size. Michigan is the only state to expressly forbid weight discrimination, along with a handful of cities. Massachusetts is on their way to adding “weight” and “height” to the list of protected categories, although the proposed bill has languished since 2019. While changes pause, weight stigma and discrimination continue to rise.
There is overwhelming evidence that weight discrimination is a real, harmful phenomenon. A Yale University study conducted in 2008 found that 10% of women and 5% of men had experienced size discrimination, which included being rejected from jobs. Multiple studies have found that overweight women bear the brunt of the stigma, earning less than overweight male colleagues in a variety of industries. And what’s more, overweight black women face the largest amount of size discrimination of all populations.
Obese individuals in particular experience high levels of prejudice and weight discrimination. But some have suggested that disability laws could cover obesity. In Washington, a recent state Supreme Court case ruled that where an employee was otherwise qualified, an employer could not refuse to hire obese individuals. However, some in the fat liberation movement do not count this case as a victory. According to Mary Himmelstein, a weight stigma researcher and an assistant professor in the department of psychological sciences at Kent State University, “Classifying obesity as a disability sends the wrong message, as most people with higher body weights are not disabled. It’s a bit insulting to have it written as such. At the same time, I’m glad people can’t be discriminated against because of their weight.”
In addition to the problematic implications of classifying obesity as a disability, these protections leave many out. In our initial scene, your waitressing gig, obesity was not the issue. Rather, the mere fact that you had gained weight was the problem. The Washington case would do nothing to protect you. These situations are are not uncommon – in 2010, a former Hooters waitress filed a lawsuit in Michigan after her managers told her she had to lose weight to keep her position. In 2013 a cocktail waitress in New Jersey filed an almost identical claim, arguing against her employer’s policy of firing waitresses if they gained more than 7% of their original body weight. The Michigan claim was settled in arbitration, while the New Jersey claim was decided on summary judgement in favor of the employer. 
In both cases the message is clear: the law will not protect you from size discrimination. Size discrimination overwhelmingly falls on the backs of women, and especially women of color. And while stigmatization can be harmful to emotional and spiritual wellbeing, it’s important to recognize that these problems are more than just hurtful; body size matters for wages.
What can be done? It’s simple really. We should make size discrimination illegal. “There is consistently high levels of public support for legislation that would prohibit weight discrimination in the workplace — e.g., a law that would make it illegal for employers to refuse to hire someone, or assign them lower salary, or terminate their employment on the basis of body weight,” says Rebecca Puhl, the director of research and Weight Stigma Initiatives at the Rudd Center for Food Policy and Obesity at the University of Connecticut. In one survey, 78% of respondents supported this type of protection.
We need this law. Without these protections, we are subtly, but unmistakably, legitimizing this form of prejudice. We should call out size discrimination for the harmful, stigmatizing practice that it is, and ban it from this country.
 Areva Martin, 49 States Legally Allow Employers to Discriminate Based on Weight, Time, Aug. 16, 2017, https://time.com/4883176/weight-discrimination-workplace-laws/.
 Janise Asare, The Discrimination No One Talks About: Weight Discrimination, Forbes, Jan. 31, 2019, https://www.forbes.com/sites/janicegassam/2019/01/31/the-discrimination-no-one-talks-about-weight-discrimination/?sh=46270a763e5f.
 Mich. Comp. Laws § 32.2202 (2009).
 Rebecca Puhl, Why is Weight Discrimination Still Legal?, Newsday, July 6, 2019, https://www.newsday.com/opinion/commentary/weight-discrimination-legal-1.33301076.
 B. S1012, 2019 Leg., Reg. Sess. (Ma 2019).
 Christy Harrison, Covid-19 Does Not Discriminate by Body Weight, Wired, Apr. 17, 2020, https://www.wired.com/story/covid-19-does-not-discriminate-by-body-weight/; Angelina Sutin, Yannick Stephan, Antonio Terracciano, Weight Discrimination and Risk of Mortality, 26 Psychological Sci. 1803, 1804 (2015).
 Amy Norton, Weight Discrimination Common, U.S. Survey Finds, Reuters, Apr. 9, 2008, https://www.reuters.com/article/us-weight-discrimination-idUSTON97652720080409.
 Bourree Lam, Weight discrimination in the Workplace: The Troubling Lack of Plus-Sized CEOs, Refinery29, Nov. 14, 2017, https://www.refinery29.com/en-us/2017/11/180380/plus-size-ceo-workplace-weight-discriminatio.; Monica Torres, Being Overweight Benefits Some Men in the Workplace, but Not Women, Huffpost, Feb. 12, 2020, https://www.huffpost.com/entry/overweight-at-work-gender-study_l_5e42cd08c5b6bb0ffc191f41.
 Janise Asare, The Unplug Collective Explores How Diet Cultuyre is Rooted in Anti-Blackness, Forbes, Sept. 13, 2020, https://www.forbes.com/sites/janicegassam/2020/09/13/the-unplug-collective-explores-how-diet-culture-is-rooted-in-anti-blackness/?sh=3ee763184283
 Rebecca Puhl & Kelly Brownell, Bias Discrimination and Obesity, 9 Obes Res. 788, 790 (2001).
 Rachel Corte, Washington Court: Obesity Covered by Antidiscrimination Law, Seattle Times, Jul. 11, 2019, https://www.seattletimes.com/seattle-news/washington-court-obesity-covered-by-antidiscrimination-law/.
 Charlotte Markey, More Protection from Weight-Based Discrimination is Needed, US News, Sept. 16, 2019, https://health.usnews.com/health-news/blogs/eat-run/articles/more-protection-from-weight-based-discrimination-is-needed.
 Martin, supra 1.
 Id.; Lam, supra 9.
 Markey, supra 13.
 Ann Stych, High-Weight Individials Still Face Workplace Discrimination, Bizwomen, Jan. 30, 2020, https://www.bizjournals.com/bizwomen/news/latest-news/2020/01/high-weight-individuals-still-face-workplace.html?page=all.
 Lam, supra 9.