Thread by @FOMNZ

Today in #FatStudyGroup, we reading Chs9-10 of Solovay, S. (2000). Tipping the scales of justice. Amherst, New York, USA: Prometheus Books.

In the ninth chapter, Solovay reviews how weight often intersects with other (usually protected) categories, such as gender and/or race. She provides several examples of cases where this has occurred, and how the courts have negotiated the issue.

In the longest chapter in the book, Ch10, Solovay considers whether fat people should find protection under existing disability laws. She begins by noting how contentious this idea is, both in the fat activist community and in the disability community.

Courts (& defendants/plaintiffs alike) dislike proposing weight is a disability, but there seem few legal alternatives for fat people seeking recourse.

Solovay notes that Title I of the ADA requires employers (of 25 or more people) to not discriminate against an individual with a disability BECAUSE of the disability.

And an individual is considered to have a disability if they have a record of a physical/mental impairment that limits one or more life activities; the nature and severity of the impairment influences the limitations it is perceived to have.

Solovay notes that sometimes courts will consider being death fat an impairment, but not being fat. The Court of Appeals in NY, for example, held that “obesity itself does meet its statutory definition of disability even if it is mutable” (p. 146).

She points to Cook v Rhode Island, which she argues is the one of the best examples of a civil care on weight-based employment discrimination (I’m wondering if there is a more recent example we could point to – does anyone know?)

An employer failed to re-hire Cook after claiming that her weight would compromise her ability to do a part of the job (evacuate patients in an emergency) and they also claimed it might lead to absenteeism and worker’s comp claims; they offered to hire her if she lost weight.

Cook sued under S504 of the Rehabilitation Act; a jury found in her favour, determining that she was qualified to hold the position and did not lack the necessary skills to perform the job, and awarded damages.

Solovay notes this was an unusual decision, and that “shallow investigation, confusion about the law, court hostility, and employer manipulation have resulted in unfair, muddled, inconsistent decisions in other fat-as-disability cases” (p. 143).

She suggests the only fair way to determine whether fatness should qualify for protection under existing disability law is to evaluate on a case-by-case basis.

Solovay argues that “Protecting all otherwise qualified people from fat discrimination is consistent with the stated goals of fairness that give rise to disability rights laws including the Americans with Disabilities Act” (p. 145).

More next week!