News
The fight for the right to be fat
Obesity might fairly be described as one of the true scourges of our time. Recent studies have established that up to 60% of Americans are overweight - and that 20% of people in the United Kingdom are "dangerously" obese. The cost to world health organisations of this problem is potentially massive.
At a more personal level, however, the real concern for many people who are overweight is their appearance - and perhaps also the way that people in society might react to it. One of the features of modern culture is the linking of concepts of attractiveness and loss of weight (anyone who has followed the plight of Geri Halliwell over recent years will know what I mean).
Can this obsession with weight - and society's apparent conclusion that overweight people are unattractive - have legal consequences? The answer, at least in California, is yes.
Late last year a San Francisco woman, Jennifer Portnick, made an application for a job as a Jazzercise instructor. She attended an audition and apparently demonstrated that she had the physical ability to conduct a high energy low impact aerobics class.
She did not, however, get the job - not for any reason of her qualification - but because she weighed 240 pounds (about 110 kilos) and, against her 5ft 8" frame, was regarded as "fat". Her potential employer told her that in order to get a job she would have to develop "a more fit appearance". It even provided some suggestions about a diet that Ms Portnick might follow in order to achieve this outcome.
Ms Portnick did not take this rebuke lightly. She sought legal advice and, acting upon an ordinance referred to as the "fat and short" law, she took a complaint to the San Francisco Human Rights Commission.
The complaint, which drew a considerable amount of international publicity, was resolved in mediation three weeks ago. The outcome was an acknowledgement by the potential employer that it had acted unfairly - and an offer by it to employ Ms Portnick. Somewhat surprisingly, Ms Portnick has indicated that she intends to decline the offer of employment- and that she is satisfied by the way in which her complaint has caused attention to be drawn to the issue of weight discrimination.
Ms Portnick's case may cause difficult questions to be raised about our society - and our perceptions of people within it. Why do we assume that employees in certain occupations (such as modelling or fitness occupations) should "look" a particular way? On the other hand, why is it unreasonable for an employer who "sells" fitness to expect that its employees will reflect its values by having a fit appearance?
While these are difficult questions of morality, the legal position in New Zealand is more certain.
The Human Rights Act prevents employers from discriminating against job applicants on the basis of a number of "prohibited grounds of discrimination". One of these grounds is "physical disability or impairment" - although it is unlikely that an overweight person would succeed in demonstrating that their weight constituted a disability in this sense. In other words, it is unlikely that a person could bring a challenge in this country on the basis of discrimination on grounds of weight or appearance.
Perhaps what made Ms Portnick's case unusual was the fact that, despite her weight, she was able to demonstrate a physical ability to perform her desired job. Many people suffering from obesity would not be able to demonstrate this level of fitness - and a potential employer would be justified in declining to employ simply because the candidate had not demonstrated an ability to do work required of the position. In this case Ms Portnick could do the job and it was her appearance to which the employer took objection. In California this objection constituted an unlawful discrimination : in New Zealand it most probably would not.
Employers in New Zealand may take some comfort from the fact that it is unlikely that they will seek challenges from potential employees on the same basis as the complaint brought by Ms Portnick. This recent case does, however, illustrate the difficult issues which arise if anti discrimination legislation is extended to such new situations.
