An imperfect fit: Obesity, public health, and disability antidiscrimination law

Columbia Journal of Law and Social Problems

Volumn 41, Issue 3, 2008, Pages 365-415

  Pulver, Adam R ^a  

^a NONE

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[No Author keywords available]

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EID: 48049110309     PISSN: 00101923     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (305)

1. In fact, some obesity activists explicitly call for an end to public health campaigns against obesity. At the same time, at least one public health law scholar has noted the potential conflict between public health initiatives and antidiscrimination law. Edward P. Richards et al., Legislative Strategies to Reduce Obesity 9, Presented at Third Annual CDC Public Health Law Conference (June 2004), available at http://biotech.law.lsu.edu/cphl/ slides/cdc-obesity-04.pdf ("Obesity incentives and regulations may also run afoul of the Americans with Disabilities Act and state antidiscrimination laws.").
2. See, e.g., Paul F. Campos et al., The Epidemiology of Overweight and Obesity: Public Health Crisis or Moral Panic?, 35 INT'L J. EPIDEMIOLOGY 55 (2006);
3. Katherine Mayer, Note, An Unjust War: The Case Against the Government's War on Obesity, 92 GEO. L. J. 999, 1011-12 (2004) (arguing that obesity presents few risks).
4. Except for where otherwise specified, I generally use the term "obesity" to refer to the public health problems of "obesity" and "overweight." In medicine, obesity is defined by a body mass index of greater than or equal to 30, and overweight as defined by a body mass index (BMI) of greater than or equal to 25. See NATIONAL HEART, LUNG, AND BLOOD INSTITUTE & NATIONAL INSTITUTES OF HEALTH, CLINICAL GUIDELINES ON THE IDENTIFICATION, EVALUATION, AND TREATMENT OF OVERWEIGHT AND OBESITY IN ADULTS xiv (1998), available at http://www.nhlbi.nih.gov/guidelines/obesity/ob_gdlns.htm. This distinction itself is problematic, due to questionable validity of BMI as a measure, as well as the variation in health risks within each of these two categories.
5. See, e.g., David S. Freedman et al., Trends and Correlates of Class 3 Obesity in the United States from 1990 through 2000, 288 JAMA 1758 (2002) (discussing particular risks at BMI > 40);
6. J. ERIC OLIVER, FAT POLITICS 16-26 (2006) (discussing the development of BMI as a measurement tool). Whether or not any distinction should, or could, be reflected in antidiscrimination law is discussed at Section III.D, below.
7. Mary T. Bassett & Sarah Perl, Obesity: The Public Health Challenge of Our Time, 94 AM. J. PUB. HEALTH 1477 (2004 );
8. see also Kevin R. Fontaine et al., Years of Life Lost Due to Obesity, 289 JAMA 187 (2003) (discussing warnings issued to the public about obesity and its dangers);
9. JoAnn E. Manson & Shari S. Bassuk, Obesity in the United States: A Fresh Look at Its High Toll, 289 JAMA 229 (2003) ("Obesity has become pandemic in the United States.");
10. Jeffrey P. Koplan & William H. Dietz, Caloric Imbalance and Public Health Policy, 282 JAMA 1579 (1999) ("Obesity is epidemic in the United States....No area of the country has been spared.").
11. See, e.g., TRUST FOR AMERICA'S HEALTH, F AS IN FAT: HOW OBESITY POLICIES ARE FAILING IN AMERICA 5 (2007), available at http://healthyamericans.org/reports/obesity2007/Obesity2007Report.pdf.
12. Lisa Smith & Bryan A. Liang, Childhood Obesity: A Public Health Problem Requiring a Policy Solution, 9 MICH. ST. J. MED. & L. 37, 39 (2005);
13. see also Roland Sturm, The Effects of Obesity, Smoking, and Drinking on Medical Problems and Costs, 21 HEALTH AFF. Mar/Apr. 2002, 245 (finding that obesity has a stronger association with a variety of chronic medical conditions, reduced health-related quality of life, and increased health care and pharmaceutical spending than either smoking or problem drinking, and generally the same health effects as 20 years of aging). While some studies have found that there are some benefits to being slightly overweight, they are highly contested, and they do not dispute the idea that there is an optimal weight, above and below which there are negative health outcomes.
14. See Gina Kolata, Study Tying Longer Life to Extra Pounds Draws Fire, N.Y. TIMES, May 27, 2005, at A16.
15. Rogan Kersh & James A. Morone, Obesity, Courts, and the New Politics of Public Health, 30 J. HEALTH POL. POL'Y & L. 839, 843-44 (2005).
16. Id.
17. Kelly Brownell, Interviewed in Gina Kolata, For a World of Woes, We Blame Cookie Monsters, N.Y. TIMES, Oct. 29, 2006, at Week in Review 14. (noting that the reduction of stigma doesn't seem to produce any positive health effects).
18. Interestingly, Puhl and Brownell nonetheless argue that increasing stigma should still be avoided. Rebecca M. Puhl & Kelly Brownell, Wrong Way to Fight Fat, WASH. POST, Nov. 2, 2006, at A17. They argue that stigma can lead to overeating and decreased activity but focus on the already overweight population, which may react significantly differently than those at risk of becoming overweight.
19. Americans with Disabilities Act of 1990 (hereinafter ADA), 42 U.S.C. §§ 12101-12213 (2000).
20. Rehabilitation Act of 1973, 29 U.S.C. §§ 701-7961 (2000).
21. See generally, Peter Blanek, First Thornburgh Family Lecture on Disability Law and Policy, Americans with Disabilities and Their Civil Rights: Past, Present, and Future, 66 U. PITT. L. REV. 687 (2005).
22. For a detailed overview of the timeline and processes leading to the passage of the ADA, see Samuel R. Bagenstos, US Airways v. Barnett and the Limits of Disability Accommodation, in CIVIL RIGHTS STORIES (Myriam Gilles & Risa Goluboff, eds.) (2007), available at http://ssrn.com/abstract=953759;
23. THOMAS F. BURKE, LAWYERS, LAWSUITS, AND LEGAL RIGHTS 66-87 (2002). Top of Form
24. Though different scholars use different labels to designate prevailing disability paradigms, there is agreement that society's view of disability has generally shifted from a moral model, finding individuals with disabilities inherently flawed -to a medical model, aimed at "cure" or rehabilitation -to a social model, which focuses on disability as a social construct, not the unavoidable consequence of a physical or mental impairment. An outgrowth of the sociopolitical model has been a "minority rights" model, which looks to social norms and historical subjugation, drawing upon critical legal theory and questioning the stereotypes of dependence on others and a general incapacity to perform daily activities. See generally Blanck, supra note 12; Laura L. Rovner, Disability, Equality, and Identity, 55 ALA. L. REV. 1043, 1054-56 (2004);
25. Deborah Kaplan, The Definition of Disability: Perspective of the Disability Community, 3 J. HEALTH CARE L. & POL'Y 352 (2000);
26. Richard K. Scotch, Models of Disability and the Americans with Disabilities Act, 21 BERKELEY J. EMP. & LAB. L. 213 (2000).
27. See Kaplan, supra note 14, at 357;
28. Scotch, supra note 14, at 214.
29. Bragdon v. Abbott, 524 U.S. 624, 631-32 (1998).
30. Chai R. Feldblum, Definition of Disability Under Federal Antidiscrimination Law: What Happened? Why and What Can We Do About It?, 21 BERKELEY J. EMP. & LAB. L 91, 98 (2000).
31. ADA, 42 U.S.C. § 12101 (2000).
32. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938).
33. ADA, 42 U.S.C. § 12102 (2000).
34. See Viscik v. Fowler Equip. Co., 800 A.2d 826 (N.J. 2002);
35. State Div. of Human Rights v. Xerox Corp., 480 N.E.2d 695 (N.Y. 1985).
36. Often as "appearance" discrimination. See, e.g., D.C. CODE ANN. § 2-1401.01 (LexisNexis 2006).
37. MICH. COMP. LAWS SERV. § 37.2102 (LexisNexis 2006).
38. SANTA CRUZ, CAL., MUN. CODE § 9.83 (2006) (prohibiting "differential treatment as a result of ...race, color, creed, religion, national origin, ancestry, disability, marital status, sex, gender, sexual orientation, height, weight or physical characteristic")
39. and S.F., CAL., ADMIN. CODE § 12B.1 (2006) (outlawing height and weight-based discrimination);
40. see also Gary Feldman & Judith Ashton, Jumping the Gun on Weight Discrimination, BOSTON GLOBE, June 2,2007, at All (discussing proposed legislation in Massachusetts).
41. 10 F.3d 17 (1st Cir. 1993).
42. See U.S. Says Disabilities Act May Cover Obesity, N.Y. TIMES, Nov. 14, 1993, at A25.
43. Though Cook was a case brought under the Rehabilitation Act (the claimed discrimination had occurred before the passage of the ADA), the court actually looked to the ADA definition of disability, which codifies the regulations promulgated under the Rehabilitation Act, in considering whether obesity was a disability. 10 F.3d at 25.
44. E.g., EEOC v. Watkins Motor Lines, 463 F.3d 436 (6th Cir. 2006);
45. Coleman v. Georgia Power Co., 81 F. Supp. 2d 1365 (N.D. Ga. 2000);
46. Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997).
47. 10 F.3d at 24.
48. 129 F.3d at 284.
49. Interpretative Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. pt. 1630, App. (2007) (hereinafter Interpretative Guidance).
50. Watkins Motor Lines, 463 F.3d 436.
51. Indeed, at least one court has recognized this, and allowed a plaintiff to explain his obesity as an impairment caused by general physiological causes. See Cordero v. Florida, No. 4:06cv529, 2007 U.S. Dist. LEXIS 74980, at *10 (N.D. Fla. Oct. 9, 2007) (denying summary judgment to morbidly obese plaintiff on ADA claim, since physician testified "Plaintiffs obesity is caused by a [unspecified] physiological disorder of his metabolic system and neurological appetite-suppressing signal system. Thus Plaintiff has sufficient evidence to show that he suffers from a physical impairment so as to satisfy the first part of the definition of disability.")
52. See, e.g., Brantley v. Cinergy Corp., No. 1:01cv378, 2007 WL 2462652, at * 24 (S.D. Ohio Aug. 27, 2007) (noting in regards to a plaintiff claiming disability of overweight tied to his sleep apnea: "If, in fact, the sleep apnea was the problem then the sleep apnea would be the disability and not the weight.").
53. Interpretative Guidance, 29 C.F.R. pt. 1630, App., §1630.2(j) (2007);
54. see also Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1264 (11th Cir. 2007) (per curiam) (citing guidance approvingly).
55. Cook v. R. I. Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993).
56. 923 F. Supp. 965 (S.D. Tex. 1996);
57. see also State Div. of Human Rights v. Xerox Corp., 480 N.E.2d 695 (N.Y. 1985) (granting "perceived as" disability status to morbid obesity under New York state law);
58. Molly Henry, Do I Look Fat? Perceiving Obesity as a Disability Under the Americans with Disabilities Act, 68 OHIO ST. L. J. 1761, 1788-90 (2007).
59. Particularly, as discussed below at Part IV.C, this creates enormous administrability concerns, as well as a perverse incentive for overweight people to gain weight and become obese.
60. 710 F. Supp. 78, 84-85 (S.D.N.Y. 1989) (interpreting New York State Human Rights Law).
61. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999).
62. In some ways, this argument is rightly rejected, since it could lead to all sorts of claims. Example: "I am unable to follow directions, which isn't an impairment, but my employer sees it as one."
63. 129 F.3d 281 (2d Cir. 1997).
64. See generally Abigail C. Saguy & Kevin W. Riley, Weighing Both Sides: Morality, Mortality, and Framing Contests over Obesity, 30 J. HEALTH POL. POL'Y & L. 869, 872 (2005).
65. See, e.g., KELLY D. BROWNELL, FOOD FIGHT 243-81 (2004).
66. See Richard A. Epstein, In Defense of the "Old" Public Health: The Legal Framework for the Regulation of Public Health, 69 BROOK. L. REV. 1421 (2004).
67. See, e.g., Jon L. Gillum, Tort Law and the Americans with Disabilities Act: Assessing the Need for a Realignment, 39 IDAHO L. REV. 531 (2003);
68. RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT LAWS (1995).
69. See, e.g., Press Release, National Association for the Advancement of Fat Acceptance, 5 Year Strategic Goals, Aug. 19, 2006, http://www.naafa.org/Convention2006/handout.pdf.
70. I discuss these specific arguments throughout this Note, but see generally, Jane B. Korn, Fat, 77 B.U. L. REV. 25 (1997).
71. The best example is Georgetown Law Professor Lawrence Gostin, whose early works focused on the ADA and HrV/AIDS, and now is considered a leader of the public health law movement. See Georgetown Law -Full-time Faculty: Lawrence O. Gostin, http-y/www.law.georgetown.edu/faculty/facinfo/tab_faculty. cfm?Status=Faculty&ID=258 (last visited Feb. 6, 2008).
72. For example, Fat!So? magazine, which is now inactive, was based on the manifesto that "... there's nothing wrong with being fat. Just like there's nothing wrong with being short or tall, or black or brown. These are facts of identity that cannot and should not be changed." http://www.fatso.com. One of its leading contributors, Sandra Solovay, is now a leading fat activist attorney and law professor at the New College of California.
73. Abby Ellin, Big People on Campus, N.Y. TIMES, Nov. 26, 2006, at Style 1.
74. Saguy & Riley, supra note 43, at 872. Organizationally, NAAFA also presents troubling issues. While it describes itself as a "human rights" organization, focused on empowerment, the history of NAAFA is also tied to fetishism and male admirers of fat women and has even been led by male "fat admirers" in the past.
75. See NAAFA Information, http://www.naafa.org/documents/brochures/ naafa-info.html#whatis (last visited Feb. 6, 2008);
76. NAAFA Policy on Fat Admirers, http://www.naafa.org/documents/pohcies/ fat_admirers.html (last visited Feb. 6, 2008). The organization, and fat acceptance movement as a whole, includes few minorities or people of very low (or very high) socioeconomic status, despite the fact that those communities are the most affected by obesity.
77. See Saguy & Riley, supra note 43, at 877-878.
78. See NAAFA Policy on Activism, http://www.naafa.org/documents/ policies/ activism.html (last visited Feb. 6, 2008) (discussing "African-American civil rights movement! ]," ACT-UP, and Greenpeace).
79. See Saguy & Riley, supra note 43, at 872.
80. See, e.g., Sturm, supra note 6.
81. Id.
82. Among suggestions for ways to take an active role: "Do not compliment anyone for losing weight" and "Do not work to maintain an unnaturally low weight. Do not go on weight-loss diets . .. ." Joining the Size Acceptance Revolution, http://www.naafa.org/documents/brochures/revolution. html (last visited Feb. 6, 2008).
83. See also Ellin, supra note 50 (discussing backlash against Professor Kathleen LeBesso, a fat acceptance scholar, when she lost seventy pounds.).
84. NAAFA Policy on Fat Admirers, supra note 51.
85. For example, members of the "Fat Underground" "devote [] [themselves] to disrupting Weight Watchers meetings with pro-fat guerrilla theater." Laura Kipnis, America's Waistline: The Politics of Fat, SLATE, Oct. 28, 2005, http://www.slate.com/id/2128999. Others actively compare fat people who want to lose weight to black people who want to be white, and encourage shame.
86. Id.
87. See Saguy & Riley, supra note 43, at 889-90. The issues raised by making such immutability arguments have also notably arisen in the course of LGBT rights litigation.
88. See William B. Runenstein, Divided We Litigate: Addressing Disputes Among Group Members and Lawyers in Civil Rights Campaigns, 106 YALE L. J. 1623, 1642-43 (1997). While some might argue this is the province of "regarded as" protections, current Court doctrine suggests that there must be an underlying impairment to qualify for "regarded as" protection under the ADA.
89. See discussion of Sutton, supra text accompanying note 40;
90. see also Henry, supra note 37, at 1792.
91. Cook v. R.I. Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993), discussed supra text accompanying note 25.
92. U.S. Says Disabilities Act May Cover Obesity, supra note 26.
93. See Saguy & Riley, supra note 43, at 873.
94. There is little disagreement that there is some genetic component to weight. The question, though, is whether such genes merely predispose one to obesity given certain behavioral and social outcomes, or consign one to a destiny of obesity. Further, few accept a genetic explanation for the country's massive weight gain over the past twenty-five years.
95. Kersh & Morone, supra note 7, at 846-49.
96. Nonetheless, many legal scholars have focused almost exclusively on it. See, e.g., Adam Benforado, Jon Hanson & David Yosifon, Broken Scales: Obesity and Justice in America, 53 EMORY L.J. 1645 (2004).
97. See Korn, supra note 48, at 39;
98. Elizabeth E. Theran, "Free to be Arbitrary and. . . Capricious": Weight-Based Discrimination and the Logic of American Antidiscrimination Law, 11 CORNELL J.L. & PUB. POL'Y 113, 153-55 (2001).
99. In public health, the term "upstream" is used to describe root causes of health problems, as well as efforts targeted directly at those causes. As such, upstream approaches often focus on prevention, and on addressing social inequities that bear on negative health outcomes.
100. Lawrence O. Gostin & M. Gregg Bloche, The Politics of Public Health: A Response to Epstein, 46 PERSP. IN BIOLOGY & MED. S160, S169 (2003).
101. See, e.g., Lynne Lamberg, Rx for Obesity: Eat Less, Exercise More and -Maybe -Get More Sleep, 295 JAMA 2341, 2341 (2006);
102. Koplan & Dietz, supra note 4, at 1579-80;
103. Richards, supra note 1, at 3 ("The best medical research shows that obesity is a life long problem that requires fundamental changes in behavior. It is tied up in both how much people eat and how much physical activity they get.").
104. Physician and researcher Kelly Brownell argues that current cultural and social institutions promote physical inactivity and the availability of high-calorie, low-nutrient food, creating a "toxic environment." KELLY D. BROWNELL, FOOD FIGHT 7-10 (2004).
105. For example, where the choice is to eat cheap high-calorie, high-fat foods or nothing at aU, most of us would argue that the high-calorie option is the rational one.
106. Korn, supra note 48, at 39.
107. Theran, supra note 66, at 152.
108. Cook v. R.I. Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17, 24 (1st Cir. 1993).
109. In recognizing HIV infection as a disability, Bragdon v. Abbott, 524 U.S. 624 (1998), the Court did not at all intimate such a distinction, and no later courts have ever suggested such.
110. The social attitudes towards these actions, though, may play a role in how different provisions of the ADA are applied in HIV/AIDS cases. See Brian S. Prestes, Disciplining the Americans with Disabilities Act's Direct Threat Defense, 22 BERKELEY J. EMP. & LAB. L. 409, 443-44 (2001).
111. 527 U.S. 471 (1999) (finding that those who successfully mitigate their disability are not "impaired" under the ADA).
112. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1264 (11th Cir. 2007) (per curiam).
113. See, e.g., Andrews v. Ohio, 104 F.3d 803, 809 (6th Cir. 1997).
114. Interpretative Guidance, 29 C.F.R. pt. 1630, App. (2007). The regulations also state that "the term 'impairment' does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight or muscle tone that are within the 'normal' range and are not the result of a physiological disorder," a phrase that itself has been debated by the courts.
115. Id.
116. Id.
117. EEOC v. Watkins Motor Lines, 463 F.3d 436, 443 (6th Cir. 2006)
118. (citing Francis v. City of Meriden, 129 F.3d 281, 287 (2d Cir. 1997)).
119. See generally Rebecca Puhl & Kelly D. Brownell, Bias, Discrimination, and Obesity, 9 OBESITY REV. 788 (2001).
120. For example, the poor, LGBT people, unmarried people, the young.
121. See William R. Corbett, The Ugly Truth About Appearance Discrimination and the Beauty of Our Employment Discrimination Law, 14 DUKE J. GENDER L. & POLY 153, 174 (2007) (discussing the role of systemic, legal subordination in generating "protected class" status);
122. Samuel R. Bagenstos, Subordination, Stigma, and "Disability, " 86 VA. L. REV. 397 (2000) (arguing that subordination and subjugation are the relevant criteria for determining if a group should be protected by antidiscrimination law).
123. For more on stigma, see ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOLLED IDENTITY (1963).
124. Bradley S. Greenberg et al., Portrayals of Overweight and Obese Individuals on Commercial Television, 93 AM. J. PUB. HEALTH 1342 (2003).
125. Id.
126. See, e.g., NAAFA Policy on Fat Admirers, supra note 51.
127. Elizabeth B. Cooper, Social Risk and the Transformation of Public Health Law: Lessons from the Plague Years, 86 IOWA L. REV. 869, 906 (2001).
128. See, e.g., Rebecca M. Puhl & Kelly D. Brownell, Psychosocial Origins of Obesity Stigma: Toward Changing a Powerful and Pervasive Bias, 4 OBESITY REV. 213, 214 (2003);
129. Josephine Kaminsky & Dominick Gadaleta, A Study of Discrimination within the Medical Community as Viewed by Obese Patients, 12 OBESITY SURGERY 14 (2002).
130. This same issue has come up with regards to smokers in the workplace. See generally Karen L. Chadwick, Is Leisure-time Smoking a Valid Employment Consideration, 70 ALB. L. REV. 117 (2006). In fact, the American Civil Liberties Union has lumped work-place discrimination against smokers and the overweight as the primary targets of the same category of "lifestyle discrimination."
131. See American Civil Liberties Union, Lifestyle Discrimination in the Workplace: Your Right to Privacy Under Attack, http://www.aclu.org/ workplacerigh/gen/13384res19981231.html (last visited Feb. 6, 2008).
132. For example, a physician cannot refuse to flat out treat someone because of their race, gender, or disability. See, e.g., Bragdon v. Abbott, 524 U.S. 624 (1998) (holding that a dentist's refusal to treat an HIV-positive patient in his office violated the ADA). Theoretically, though close to impossible to prove, a treating physician cannot make treatment decisions based on race or gender.
133. See, eg., Johnson v. Thompson, 971 F.2d 1487,1493-94 (10th Cir. 1992) ("[W]here the handicapping condition is related to the conditions to be treated, it will rarely, if ever be possible to say . . . that a particular decision was discriminatory.");
134. United States v. Univ. Hosp., 729 F.2d 144 (2d Cir. 1984) (noting the impossibility of applying the "otherwise qualified" prong of the ADA to a decision about surgical treatment);
135. see also Mary Crossley, Becoming Visible: The ADA's Impact on Health Care for Persons with Disabilities, 52 ALA. L. REV. 51 (2000).
136. While some doctors may do so rudely or ineffectively, the fact that they are attempting to do it should not be a violation of the law. The increased likelihood of misdiagnosis is another distinct issue, and something best addressed by tort law and medical malpractice. For a discussion of misdiagnoses, see Theran, supra note 66, at 166. There is a bit of ironic arrogance in Theran's and other scholars' approaches to medicine, as they criticize doctors for assuming to know what is best for a patient, and replace their own J.D.-based judgment instead.
137. See, e.g., Puhl & Brownell, supra note 83.
138. See Scott Burris, Disease Stigma in U.S. Public Health Law, 30 J.L. MED. & ETHICS 179, 182 (2002);
139. Scott Burris, Law and the Social Risk of Health Care: Lessons from HTV Testing, 61 ALB. L. REV. 831, 871 (1998).
140. While there is certainly harm associated with the failure to seek health care, those pushing for antidiscrimination protection, in fact, are claiming that there is no need to seek health care treatment related to their condition anyway.
141. Even with other non-communicable diseases, there is still a harm-to-others element that derives from a failure to acknowledge a problem or seek care. An alcoholic, for example, may put others at risk via drunk driving. The direct harm to others of treatment-averse obese individuals is neghgible, if indeed present at all. But see infra text accompanying notes 198-200 (noting social contagion of obesity).
142. See Bagenstos, supra note 85;
143. Rovner, supra note 14, at 1044-45 (arguing that the Court has inappropriately interpreted the statute via a medical model lens).
144. Feldblum, supra note 17, at 161.
145. See Saguy & Riley, supra note 43, at 909.
146. Id. at 870 (emphasis in original).
147. See Theran, supra note 66, at 173.
148. Mary Madeline Rogge et al., Obesity, Stigma, and Civilized Oppression, 27 ADVANCES IN NURSING SCI. 301, 305 (2004).
149. Id.
150. Further, most fat acceptance advocates would hotly contest the notion that obesity is like any kind of cancer. Pneumonia and appendicitis would also likely not qualify individuals for ADA protection, nor would most arthritis.
151. As an Ulustrative example, the National Association of the Deaf supports disability antidiscrimination laws, Employment, http://www.nad.org/employment (last visited Jan. 20, 2008), and also increased funding for infant screening for hearing impairments, to ensure that the impact of hearing loss is reduced, Infant Screening, http://www.nad.org/infant (last visited Jan. 20, 2008).
152. See, e.g., Eldo E. Frezza et al., The Impact of Morbid Obesity on the State Economy: An Initial Evaluation, 2 SURGERY FOR OBESITY & RELATED DISEASES 504 (2006) (examining effects of obesity on the New Mexico state economy);
153. D. Adam Long et al., The Cost of Lifestyle Health Risks: Obesity, 48 J. OCCUPATIONAL & ENVTL. MED. 244 (2006) (highlighting costs of obesity to American employers).
154. See infra text accompanying notes 198-200.
155. Autism parent groups, for example, campaign both for research into the causes of autism in order to prevent and treat it, while also arguing for strengthened antidiscrimination protection. See, e.g., Autism Society of America: Advocacy Home, http://www.autism-society.org/site/PageServer?pagename= govt_home (last visited Jan. 28, 2008);
156. see also Parents of Autistic Boy Sues Pacific Palisades Boy Scout Troop, ABC7.COM, KABC LOS ANGELES, Aug. 17, 2006, http://abclocal.go.com/kabc/story?section=local&id=4471018.
157. Y-Me, a national breast cancer patient advocacy organization, campaigns for increased research funds for treatment and education, Y-Me Advocacy, http://www.y-me.org/advocacy (last visited Jan. 20, 2008),
158. as well as protection from discrimination in the workplace, Breast Cancer and the Workplace, http://www.y-me.org/coping/daytoday/workplace.php (last visited Jan. 20, 2008).
159. Except under the 'regarded as' prong, which still requires that an actor think a person has something that is an impairment, you must be impaired to be protected.
160. Bradley Allen Areheart, When Disability Isn't "Just Right": The Entrenchment of the Medical Model of Disability and the Goldilocks Dilemma, 83 IND. L. J. (forthcoming 2008), available at http://ssrn.com/abstract=980177.
161. Bagenstos, supra note 85, at 431.
162. But see David S. Schwartz, The Case of the Vanishing Protected Class: Reflections on Reverse Discrimination, Affirmative Action, and Racial Balancing, 2000 WIS. L. REV. 657, 664 (2000) (arguing that the color blind approach for Title VII is actually incorrect, and that recognizing only that members of a "protected class" qualify for Title VII protection would be more appropriate).
163. See supra Part II.A.
164. This raises questions about those who face discrimination and shaming for being too skinny (sometimes from fat activists themselves). For example, much attention has been directed recently at bans on fashion models with BMIs falling in the "underweight" range. See, eg., Robin Ghivan, They're Going, Going . . . Gaunt, WASH. POST, Jan. 19, 2007, at C1;
165. Nedra Rhone, New York Fashion Week: Too-thin Model Issue a Priority for Industry, ATLANTA J.-CONST., Feb. 6, 2007, at E1. While many fat activists base their gripes on notions of physical autonomy, they also often blame skinny fashion models for the creation of unreahstic body ideals.
166. See Patricia R. Owen & Erika Laurel-Seller, Weight and Shape Ideals: Thin is Dangerously In, 30 J. APPLIED SOC. PSYCHOL. 979 (2000).
167. See Harlan Hahn, Accommodations and the ADA: Unreasonable Bias or Biased Reasoning?, 21 BERKELEY J. EMP. & LAB. L. 166, 174 (2000);
168. Kaplan, supra note 14, at 357.
169. Korn, supra note 48, at 49.
170. See, e.g., Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197-98 (2002);
171. Sutton v. United Air Lines, Inc., 527 U.S. 471, 472 (1999).
172. See Korn, supra note 48, at 67 (arguing that the ADA was meant to address problems faced by people whose bodies did not fit the "able-bodied image").
173. See ADA, 42 U.S.C. § 12101 (2000).
174. The most obese of the morbidly obese may be shut out from society, but these individuals have impairments based on their actual physical inabihties to ambulate. For example, in Hopkins v. General Motors the plaintiff weighed 677 pounds and sought (and was granted by his employer) long-term disability retirement, since he could no longer lift himself into his truck, walk through the plant, or keep himself clean. No. 05-71802, 2007 U.S. Dist. LEXIS 13515, (E.D. Mich. Feb. 28, 2007). Even if these people should be covered as disabled, this raises the issue of line-drawing discussed infra Part IV.C.
175. Bagenstos, supra note 85, at 465.
176. See generally id. at 453-58.
177. Id. at 448.
178. Matthew Diller, Dissonant Disability Policies: The Tensions Between the Americans with Disabilities Act and Federal Benefit Programs, 76 TEX. L. REV. 1003, 1004 (1998).
179. Elizabeth F. Emens, The Sympathetic Discriminator: Mental Illness, Hedonic Costs, and the ADA, 94 GEO. L. J. 399, 402 (2006);
180. see also Diller, supra note 127, at 1026 (arguing that goal of integration is based on recognition that segregation and separate treatment perpetuate prejudice).
181. Kolata, supra note 9.
182. Excluding transgendered persons and excluding the idea of "covering." See KENJI YOSHINO, COVERING: THE HIDDEN ASSAULT ON OUR HUMAN RIGHTS (2006).
183. BURKE, supra note 13, at 90-91.
184. One notable exception is cancer that enters into remission.
185. Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).
186. Interpretative Guidance, 29 C.F.R. § 1630 Appx. (2007) (noting the determination of a "substantial limitation" is based on three factors: "(1) the nature and severity of the impairment, (2) the duration or expected duration of the impairment, and (3) the permanent or long term impact, or the expected permanent or long term impact of, or resulting from, the impairment.");
187. see also Vande Zande v. Wis. Dep't of Admin., 44 F.3d 538, 544 (7th Cir. 1995) ("Intermittent, episodic impairments are not disabilities.").
188. Matthew Diller, Judicial Backlash, the ADA and the Civil Rights Model, 21 BERKELEY J. EMP. & LAB. L. 19, 38-39 (2000).
189. For example, reproduction and sexual activity tend to be cited as the limited life activity in nearly all HIV/AIDS ADA cases, since the presence of the virus alone is what causes the limitation. See, e.g., Bragdon v. Abbott, 524 U.S. 624, 639-42 (1998).
190. ADA, 42 U.S.C. § 12101 (2000).
191. See, e.g., Elizabeth Fernandez, Exercising Her Right to Work, S.F. CHRON., May 7, 2002 at Al (where an overweight certified aerobics instructor was denied a job as a Jazzercise instructor based on her lack of a "fit appearance").
192. See Elizabeth M. Adamitis, Note, Appearance Matters: A Proposal to Prohibit Appearance Discrimination in Employment, 75 WASH. L. REV. 195, 203 (2000) (noting that mildly/moderately overweight people only stand a chance of being covered if "regarded as disabled," whereas severely obese individuals or those who have underlying physiological disorder could argue actual disability).
193. Tudyman v. United Airlines, 608 F. Supp. 739 (C.D. Cal. 1984).
194. Christine L. Kuss, Comment, Absolving a Deadly Sin: A Medical and Legal Argument for Including Obesity as a Disability Under the Americans with Disabilities Act, 12 J. CONTEMP. HEALTH L. & POL'Y 563, 599-600 (1996).
195. Dana Milbank, Measuring The Body Politic, WASH. POST, Aug. 30, 2006, at A17 (noting President Bush's BMI of 27 and President Clinton's BMI of 28.3).
196. Bagenstos, supra note 85, at 485.
197. EEOC v. Watkins Motor Lines, 463 F.3d 436, 441 (6th Cir. 2006).
198. Those who argue that no one would gain weight to meet this criteria because of other "negative effects" of obesity miss the entire argument of the fat acceptance movement -that there are no other negative effects.
199. For a satirical perspective on this very possible outcome, see The Simpsons: King Size Homer (Fox television broadcast Nov. 7, 1995), where Homer increases his weight to 300 pounds so he can legally qualify as disabled, and thus obtain a reasonable accommodation of telecommuting. Episode summary available at http://www.snpp.com/episodes/3F05.html.
200. Professor Jane Korn argues that any differentiation between those who are morbidly obese and those who are "just fat" goes against the purpose of the ADA, which she claims is to address discrimination generally. Supra note 47, at 43. This view of the ADA banning all discrimination is directly contradicted by the language of the statute and subsequent court interpretation.
201. Jill Elaine Hasday, Mitigation and the Americans with Disabilities Act, 103 MICH. L. REV. 217, 233-345 (2004). Hasday also argues that by requiring mitigation in this sense and reducing the cost of accommodation to employers, disabled individuals will benefit from reduced discrimination.
202. Id.
203. Id. at 220-21.
204. Id. at 226.
205. Id. at 235.
206. Id. at 266-71.
207. One candidate for such treatment appeared in King v. Hawkeye Cmty. Coll., No. C98-2004, 2000 U.S. Dist. LEXIS 1695, 10 Am. Disabilities Cas. (BNA) 203 (N.D. Iowa Jan. 3, 2000). The plaintiff there had weighed 597 pounds before gastric bypass surgery, and 385 pounds afterwards. The plaintiff was terminated while on medical leave recovering from his surgery.
208. Theran, supra note 66, at 136.
209. Steven Greenhouse, Overweight, but Ready to Fight; Obese People Are Taking Their Bias Claims to Court, N.Y. TIMES, Aug. 4, 2003, at B1 (emphasis added).
210. Paula E. Berg, III/Legal: Interrogating the Meaning and Function of the Category of Disability in Antidiscrimination Law, 18 YALE L. & POL'Y REV. 1, 46-50 (1999).
211. Adamitis, supra note 139, at 195.
212. Berg, supra note 155, at 46.
213. Interpretative Guidance, 29 C.F.R. § 1630 Appx. (2007).
214. Sutton v. United Air Lines, Inc., 527 U.S. 471, 473 (1999).
215. See Fernandez, supra note 138.
216. See Abby Ellin, New Breed of Trainers Are Proving Fat Is Fit, N.Y. TIMES, Sept. 1, 2005, at G8.
217. See, e.g., Wilson v. Sw. Airlines Co., 517 F. Supp. 292 (N.D. Tex. 1981) (rejecting claim that customer preferences for female flight attendants constituted a defense under Title VII);
218. Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385 (5th Cir. 1971) (same).
219. Lawrence O. Gostin et al., The Law and the Public's Health: A Study of Infectious Disease Law in the United States, 99 COLUM. L. REV. 59, 61 (1999).
220. Id. at 62-63.
221. See, e.g., id. at 69-77.
222. The authors refer to the models as "microbial," "behavioral," and "ecological," though different terms are used by others in the field. See, e.g., Walter M. Bortz, Biological Basis of Determinants of Health, 95 AM. J. PUB. HEALTH 389 (2005) (classifying models as "social environment," "physical environment," "biological," and "behavioral").
223. Gostin et al., supra note 163, at 80.
224. Id. at 89.
225. See, eg., U.S. Dept. of Agric, MyPyramid.gov, http://www. mypyramid.gov/(last visited Feb. 6, 2008) (educating Americans about different food groups and balance of nutrition);
226. U.S. Dept. of Health & Human Servs., The President's Council on Physical Fitness and Sports, http://www.fitness.gov/ (last visited Feb. 6, 2008) (teaching Americans the importance of exercise).
227. See Frank J. Chaloupka et al., Taxing Tobacco: The Impact of Tobacco Taxes on Cigarette Smoking and Other Tobacco Use, in REGULATING TOBACCO 39 (Robert L. Rabin & Stephen D. Sugarman eds., 2001).
228. See Peter D. Jacobson & Lisa M. Zapawa, Clean Indoor Air Restrictions: Progress and Promise, in REGULATING TOBACCO, supra note 169, at 207.
229. See Michael F. Jacobson & Kelly D. Brownell, Small Taxes on Soft Drinks and Snack Foods to Promote Health, 90 AM. J. PUB. HEALTH 854 (2000).
230. See Kolata, supra note 9.
231. See id. (citing political scientist James Morone and saying that "it is so important [for some people] to persuade fat people to lose weight that common sense disappears . . . [and] '[a]nything we can say to persuade you, we will say.'").
232. See Philip J. Cook & Michael J. Moore, The Economics of Alcohol Abuse and Alcohol-Control Policies, HEALTH AFF. Mar ./Apr. 2002, 120.
233. Social norms against smoking have also been used in this manner, though the resulting "stigmatization" has recently been subject to criticism. See, e.g., Ronald Bayer & Jennifer Stuber, Tobacco Control, Stigma, and Public Health: Rethinking the Relations, 96 AM. J. PUB. HEALTH 47, 48 (2006).
234. See, e.g., Alyson L. Geller, Smart Growth: A Prescription for Livable Cities, 93 AM. J. PUB. HEALTH 1410 (2003).
235. See George A. Mensah et al., Law as a Tool for Preventing Chronic Diseases: Expanding the Spectrum of Effective Public Health Strategies, 1 PREVENTING CHRONIC DISEASE 2 (2004).
236. Beyond Ubertarian concerns here, though, is a concern that eliminating such choices when demand still exists leads to the creation of a black market.
237. Lawrence O. Gostin et al., The Law and the Public's Health: The Foundations, in LAW IN PUBLIC HEALTH PRACTICE 3, 4 (Richard A. Goodman et al. eds., 2003).
238. Id. at 7.
239. Id. at 10.
240. Id. at 10-11.
241. Gostin et al., supra note 163, at 67
242. (citing Geoffrey Rose, Sick Individuals and Sick Populations, 14 INT'L J. EPIDEMIOLOGY 32, 38 (1985)).
243. Id. at 64.
244. See Jonathan E. Fielding et al., How Do We Translate Science into Public Health Policy and Law?, 30 J.L. MED. & ETHICS 3 (2002).
245. Lawrence O. Gostin & Madison Powers, What Does Social Justice Require for the Public's Health? Public Health Ethics and Policy Imperatives, 25 HEALTH AFF. 1053, 1058 (2006).
246. Epstein, supra note 46.
247. See id. at 1426 (notably, he ignores genetics arguments, the toxic food environment which eliminates any real "consent," and issues surrounding childhood obesity).
248. Id.
249. See, e.g., Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349 (1997) (discussing social influence as a deterrent of criminal and other behaviors);
250. Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903 (1996).
251. Essentially, both stigma and negative social norms focus on widespread negative sociocultural beliefs. Stigma, though, is directed at individuals or a group of individuals. Social norms target behaviors or characteristics of those individuals. Stigma also includes a degree of internalized subordination of the relevant group. See GOFFMAN, supra note 86.
252. Norms are defined as "informal social regularities that individuals feel obligated to follow because of an internalized sense of duty, because of a fear of external non legal sanctions, or both." Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 MICH. L. REV. 338 (1997).
253. See H. Wesley Perkins, Social Norms and the Prevention of Alcohol Misuse in Collegiate Contexts, 14 J. STUD. ALCOHOL S-164 (2002);
254. Cass R. Sunstein, Sober Lemmings, NEW REPUBLIC, Apr. 14, 2003, at 34.
255. See, e.g., Lisanne Brown et al., Interventions to Reduce HIV/AIDS Stigma: What Have We Learned?, 15 AIDS EDUC. & PREVENTION 49 (2003);
256. Gregory M. Herek et al., HIV-Related Stigma and Knowledge in the United States: Prevalence and Trends, 1991-1999, 92 AM. J. PUB. HEALTH 371 (2002).
257. Rebecca M. Puhl & Kelly Brownell, Wrong Way to Fight Fat, WASH. POST, Nov. 2, 2006, at A17.
258. See Kolata, supra note 9 (quoting Brownell).
259. Rebecca Puhl & Kelly D. Brownell, Ways of Coping with Obesity Stigma: Review and Conceptual Analysis, 4 EATING BEHAV. 53, 73 (2003) ("Potential other consequences of coping, such as weight loss efforts (including surgery) to avoid stigma, may be desirable for health reasons, but are not the only means of improving well-being.").
260. See McAdams, supra note 191.
261. Carol Graham & Darius Lakdawalla, Cheap Food, Societal Norms, and the Economics of Obesity, WALL ST. J. ONLINE, Aug. 25, 2006, http://online.wsj.com/public/article_print/SB115634907472843442. html.
262. Id.
263. Carol Graham & Andrew Felton, Variance in Obesity Across Cohorts and Countries: A Norms-Based Explanation Using Happiness Surveys (Brookings Institution CSED Working Paper No. 42, 2005), available at http://www.brook.edu/es/dynamics/papers/CSED_wp42.pdf.
264. See Graham & Lakdawalla, supra note 198.
265. Nicholas A. Christakis & James H. Fowler, The Spread of Obesity in a Large Social Network over 32 Years, 357 NEW ENG. J. MED. 370 (2007).
266. Gina Kolata, Find Yourself Packing It On? Look Around at Your Friends, N.Y. TIMES, Jul. 26, 2007, at Al (quoting Dr. Nicholas A. Christakis).
267. Id.
268. See Mark V. Pauly, The Economics of Moral Hazard: Comment, 58 AM. ECON. REV. 531 (1968).
269. Sam Peltzman, The Effects of Automobile Safety Regulation, 83 J. POL. ECON. 677 (1975) (finding that mandatory seat-belt laws actually led to individuals taking increased risk in their own driving behaviors).
270. See Ian Daly, What Ever Happened to Safe Sex? How We Learned to Stop Worrying and Love the Risk, DETAILS, Oct. 2006, at 244, 246
271. (quoting psychiatrist Dr. Jeffrey Fishberger, "They think AIDS is not a big deal. They look at it like a chronic, manageable disease-like diabetes.");
272. Nicole Crepaz et al. Highly Active Antiretroviral Therapy and Sexual Risk Behavior: A Meta-analytic Review, 292 JAMA 224 (2004).
273. See, e.g., Gary S. Becker & Kevin M. Murphy, A Theory of Rational Addiction, 96 J. POL. ECON. 675 (1988).
274. Jonathan Klick & Thomas Stratmann, Diabetes Treatments and Moral Hazard (Florida State University Law and Economics Paper Series, Paper No. 05-21, 2006), available at http://ssrn.com/abstract=766825.
275. The same authors have also found that mental health insurance parity laws have led to an increase in beer drinking that would tend to increase demand for mental health treatment, which seems absurd. Jonathan Klick & Thomas Stratmann, Subsidizing Addiction: Do State Health Insurance Mandates Increase Alcohol Consumption?, 35 J. LEGAL STUD. 175 (2006).
276. See, e.g., Beth Ann Wright, What Will Guide the Courts in Interpreting the Term "Major Life Activities" Under the Americans with Disabilities Act?, 15 GEO. MASON U. CIV. RTS. L.J. 1, 2 (2004) (noting the "the antidiscrimination and public health purposes of the Act");
277. Wendy E. Parmet, After September 11: Rethinking Public Health Federalism, 30 J.L. MED. & ETHICS 201, 206 (2002) (discussing the ADA as a public health law).
278. In fact, according to one author, the courts have consistently treated the ADA in this way, erroneously in his opinion, as opposed to a civil rights model. See Diller, supra note 135, at 47-51.
279. See also Michael Ashley Stein, Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination, 153 U. PA. L. REV. 579, 586 (2004) (". . . nearly all legal scholars characterize the ADA as a redistributive measure and distinguish it in kind from traditional antidiscrimination legislation," though he disagrees.).
280. See BURKE, supra note 13, at 62 (discussing the ADA as an attempt at a regulatory program substitute).
281. See id. at 76-77 (discussing conservative support for the ADA on "utilitarian" grounds).
282. See, e.g., Vande Zande v. Wis. Dep't of Admin., 44 F.3d 538 (7th Cir. 1995).
283. Failure to provide a reasonable accommodation is a form of discrimination under the ADA and undue hardship is an affirmative defense. 42 U.S.C. § 12112(b)(5)(A) (2000).
284. Berg, supra note 155, at 13.
285. See Gostin & Powers, supra note 186.
286. Dan E. Beauchamp, Public Health as Social Justice, in NEW ETHICS FOR THE PUBLIC'S HEALTH 106 (Dan E. Beauchamp & Bonnie Steinbock eds., 1999).
287. Id.
288. Scott Burris, Disease Stigma in U.S. Public Health Law, 30 J.L. MED. & ETHICS 179, 187 (2002).
289. See also Mayer, supra note 2, at 1014-15 ("One could argue that stigmatization of a physical condition is an effective tool for persuading people to modify their behavior ..." but that this would be "morally offensive.")
290. Burris, supra note 221, at 187.
291. Id. at 188.
292. Bayer & Stuber, supra note 175, at 49.
293. See, e.g., supra note 1 and accompanying text.
294. Compare Katherine M. Flegal et al., Excess Deaths Associated with Underweight, Overweight, and Obesity, 293 JAMA 1861 (2005) (finding 111, 909 excess deaths due to obesity in 2000)
295. with Mark V. Roehling, Weight-Based Discrimination in Employment: Psychological and Legal Aspects, 52 PERSONNEL PSYCHOL. 969 (1999) (collecting studies on weight discrimination in the workplace with results ranging from positive wage correlations for overweight men and less than 0.5% of participants reporting weight discrimination to "significant" relationship between weight and unemployment).
296. Lawrence Gostin, Legal Foundations of Public Health Law and Its Role in Meeting Future Challenges, 120 PUB. HEALTH (Supp. 1) 8, 11 (2006).
297. Cooper, supra note 90, at 877.
298. See Jacobson v. Massachusetts, 197 U.S. 11 (1905) (establishing that the protection of the public's health is a sufficient grounds for invading a constitutionally-protected liberty).
299. Based on Graham and Lakdawalla's work, supra note 198, it appears that the brunt of stigmatization does not fall on racial and ethnic minorities, though it certainly does fall on women. This finding is supported by the near-absence of low-income and racial and ethnic minorities in the Fat Acceptance Movement.
300. See supra note 51.
301. Discussions about the stigmatization of HIV/AJDS were the first to "articulat[e] a strong thesis linking stigma and public health." Bayer & Stuber, supra note 175, at 47.
302. Nancy Scheper-Hughes, AIDS, Public Health and Human Rights in Cuba, 342 LANCET 965, 967 (1993).
303. McAdams, supra note 191, at 349.
304. See generally Gostin & Powers, supra note 186.
305. Scheper-Hughes, supra note 232, at 967.