Why Isn’t Fat Shaming Officially Discrimination in Law?

By Benjamin Lowrie, Digital Producer 18 Sep 2017

We don’t talk about weight in the same way as we talk about race, gender, or disability.

When people complain about mistreatment at work or school based on their weight, many of us feel great sympathy, so why isn’t weight discrimination unlawful in the same way as racism, for example, or gender discrimination?

The Cultural Issue at the Heart

Maybe part of the reason is the way we deal with weight discrimination within society, and the ‘anti-fat’ attitudes within the media.

Take the recent story of Jenniefer Gadsby, for example. In a moving article for the BBC she describes “overcoming fat shaming”, and talks openly about her struggle for self-esteem and confidence. But how did she overcome the discrimination? She lost weight. And a lot of it.

This reflects the fact that many people expect the individual to present themselves in a way they won’t be discriminated against, rather than accepting that we need to challenge the discrimination. And some believe that’s why weight discrimination isn’t protected in the same way as other factors.

So weight discrimination isn’t illegal?

Image Credit: Bruno Nascimento / Unsplash

Well, it’s a bit more complicated than that. Although there are instances where weight discrimination is illegal, the general position is is that overweight and obese people aren’t specifically protected under UK discrimination law. The Equality Act, which is the main piece of law which guards against discrimination, only applies to certain ‘protected characteristics’ such as race, gender and sexual orientation. Those characteristics don’t include weight.

In practice, this means that overweight people often can’t challenge discrimination in the workplace or school, and many studies show it’s harder for them to find a job in the first place. A 2016 report found that, “people of non-ideal weight (overweight or severely underweight) are subjected to discrimination, in the workplace and elsewhere, based on attitudinal assumptions and negative inferences … such as that they are insufficiently self-motivated to make good employees” .

It also means that the NHS can deny surgery to people of non-ideal weight, something that one barriatric surgeon has said is comparable with racial or religious discrimination.

Obesity as disability?

However, there are some instances where people can take action against weight discrimination.

In a 2014 case, Danish childminder Karsten Koltoft argued he had been unfairly discriminated against after being dismissed when his weight reached 25 stone. At the time the Advocate General of the Court of Justice said:

If obesity reaches such a degree it plainly hinders participation in professional life, then this can be a disability

Advocate General, European Court of Justice

So if someone gets fired from their job for being overweight, they could argue that they are substantially impaired in the long term by their weight, to the extent of disability. Some say we need to go further than this, however.

Route to Legal Protection

Legal academics Tamara Hervey and Phillip Rostant produced a key report in 2016. They found that overweight women earn an average of $9,000 less than those of an average weight. For those who are obese the disparity is as high as $19,000.

Hervey and Rostant pointed out that the EU Directive that established a framework for equal treatment in employment required member states to define disability not only through a medical model, but also through a social model. However, the UK uses a medical model. “To that extent, the Equality Act 2010 stands in conflict with the Directive.” It therefore needed to be amended.

A Change in the Law Books?

Image Credit: Redd Angelo / Unsplash

It may be that legislation is required to make sure people are protected from discrimination on the basis of weight.

However, a big part of the problem can be tackled without legislation, namely by addressing cultural stigma and misconceptions. Sonia Sodha pointed out in an article for the Guardian that, “There’s a widespread misperception that it is simply about a lack of willpower – if only people exercised some restraint, they’d lose weight. The more people believe this to be the case, the more pronounced their weight discrimination is likely to be.”

It all comes back to how we frame the narrative of weight – as something to be lost, gained, or maintained at a socially ideal level. Until we address our cultural prejudices around weight as loudly and proudly as we can discuss race, gender and sexuality, it will remain stigmatised, and discrimination will continue.

Featured Image Credit: Brigitte Tohm / Unsplash. Image Credit: Kristopher Roller / Unsplash