Know Your Rights: Obesity, Disease, Employment Discrimination

This is a guest post by Laurie and Debbie. Debbie Notkin is a body image activist, a feminist science fiction advocate, and a publishing professional. She is chair of the motherboard of the Tiptree Award and was one of the two guests of honor at WisCon in May 2012. Laurie is a photographer whose photos make up the books Women En Large: Images of Fat Nudes (edited and text by Debbie Notkin) and Familiar Men: A Book of Nudes (edited by Debbie Notkin, text by Debbie Notkin and Richard F. Dutcher). Her photographs have been exhibited in many cities, including New York, Tokyo, Kyoto, Toronto, Boston, London, Shanghai and San Francisco. Her solo exhibition “Meditations on the Body” at the National Museum of Art in Osaka featured 100 photographs. Her most recent project is Women of Japan, clothed portraits of women from many cultures and backgrounds. Laurie and Debbie blog together at Body Impolitic, talking about body image, photography, art and related issues. This post originally appeared on Body Impolitic.

In the last month or so, the AMA, acting against its own science council’s advice, has declared obesity to be a “disease.”

Vik Khanna is an “independent health consultant with extensive experience in managed care and wellness.Looking at the first of his two-part series on obesity and the AMA, it is clear that he is no fat activist, and not much of a believer in HAES:

This decision’s willful disregard of salient facts is staggering: first, most obesity is not the result of a disease process or a frank genetic defect, it’s the result of algebra. We eat more and move less than our ancestors, even of just four generations ago. Second, a surprising number of obese people are still quite healthy. Third, the ones who work hard enough to improve their fitness level will do more for their survival than those who remain unfit, regardless of BMI. Fourth, telling everyone who’s obese that they are sick is a cruel canard that encourages dependency on the professions in such a way that must make Ivan Illich roll over in his grave.

So, here’s the challenge for the AMA. Since you’ve now told the culture to show you the (obesity-related) money, here’s what we taxpayers and funders of your enterprise want: win the war on obesity using a very clear metric…restore the status quo ante…the distribution of BMI in American adults in 1980. And, while you’re at it…fix the industry’s obsession with overdiagnosis and overtreatment because there’s no money to be made in the obverse. Finally, measure both fitness and health-related quality of life in all these “sick” people so we can see how much they really benefit from your efforts. Still think that medicalizing a lifestyle problem was the best step toward long-term success? Fat chance.

So far, this is centrist common sense, and we wish doctors would listen. The second part of his post, however, is even more important. In this post, Khanna is talking about how the disease label can be used in employment discrimination. He doesn’t address the ongoing issue of people not being hired because they are fat, including the relatively new version of that where fat people are seen as more expensive employees. (Of course, to the extent that this is true at all, the medical/social perception that fat people are unhealthy is the reason fat employees can be more expensive.) Instead, he is focusing on mandatory wellness programs, which gain significant teeth from this decision. And he’s giving us a roadmap for how to face these programs in our various workplaces. As Khanna says, these “wellness programs … often hinge [on] vastly overblown claims of being able to help the obese who they almost universally label as ‘high risk’ people.”

Well, what if people who are obese, who are no doubt tired of being condescended to, first by wellness companies, and now by the AMA, decide that they are going to seek medical approval to opt out of wellness programs? A study recently published in the journal Translational Behavioral Medicine reports on a highly coercive, electronically monitored walking program for obese people: 17% opted not to participate and another 5% actually got their physician’s approval to opt out. The physician approval to opt out is key to any resistance strategy.

Under the final wellness rules issued by the federal government earlier this year, physician certification that it is medically unadvisable for an employee to participate in a wellness program creates a burden for the employer and wellness vendor. They must provide reasonable alternatives that do not disadvantage the employee in terms of either time or cost and that address the physician’s concerns. … The coup de grace is that “adverse benefit determinations based on whether a participant or beneficiary is entitled to a reasonable alternative standard for a reward under a wellness program are considered to involve medical judgment and therefore are eligible for Federal external review.”

As many fat people know, it isn’t usually going to be easy to convince your doctor that such a program is bad for you, but it will probably be easier than convincing your employer, if your employer is the type of place that goes for these horrible programs. (Electronically monitored walking programs can kiss my ass!)

Khanna goes on to state his opinion of current medical thinking on fat in no uncertain terms, and we intend to quote this forever:

Targeting people based on body mass index (BMI) is an intellectually, morally, scientifically, and mathematically bankrupt approach.

Finally, his clear conclusion is not only an argument against the disease model of obesity, it’s a brilliant argument against the childhood obesity panic. We’d like everyone in the country–every teacher, every doctor, every employer, every parent–to post it on the wall and read it every day.

Above all else, tell your people (obese or not) that your wellness goal is not to insult them, diminish them, or make them feel sick when they aren’t. Wellness, by any reasonable definition, should give people tools that empower them. How much they are willing to do is ultimately up to them.

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37 Responses

  1. Sophia Brooks
    Sophia Brooks September 24, 2013 at 10:07 am |

    Reading this, got me wondering. if you are an hourly employee and must participate in a wellness program as a condition of employment, don’t they have to pay you for that time? If an hourly employee has to take an educational offering at my job, they have to be paid for it.

  2. Mo
    Mo September 24, 2013 at 1:22 pm |

    My work just implemented a wellness program, and I’m glad it’s not mandatory. I have a doctor. We’re a great healthcare team that together work on getting me to be at my best even though I have fibromyalgia. Frankly, that info is not my work’s business. Yes, they pay my insurance. No, they don’t need my medical specifics unless it affects my work. And frankly, I don’t trust the supposed “anonymity” of a program to which access is through our HR program.

  3. matlun
    matlun September 25, 2013 at 4:07 am |

    Are the AMA really defining obesity through BMI used on an individual level? (as opposed to body fat percentage or similar)

    I have not found anything to the contrary, but it sounds rather silly. It is a statistical measure that is not very dependable on an individual level, and this should be well known to medical professionals.

    Btw: One problem with BMI that seems to not be pointed out by the links in the OP is the question where you should put the limits between “normal”, “overweight”, “obese” etc. As can be seen these are just even multiples of 5 rather than any careful study of which body fat levels that are ideal.

    (Though perhaps it should be noted that BMI is close to the best proxy for body fat level that is known given only weight and height. We should not exaggerate how bad it is – the issue is just that these two pieces of information are not generally enough by themselves to get a solid estimate)

  4. Henry
    Henry September 25, 2013 at 4:56 pm |

    The Americans with Disabilities Act (“ADA”) may protect you in such a situation. Your chronic illness needs to be real and verifiable. – that’s an interesting proposition I found, can one sue for workplace discrimination against the obese under the ADA now that it is a chronic disease? If so I shouldn’t lose the 10 lbs that would put me just under the current BMI cutoff. Also I won’t start doing yoga on the off chance it makes me slightly taller.

    We’ve run out of stuff it is “ok” to pressure our neighbors about, so body size is the new target group. Humans have this need to find fault with others in order to bolster their own self confidence.

  5. Bagelsan
    Bagelsan September 25, 2013 at 6:20 pm |

    This is weird. At most, most medical professionals would probably agree that obesity is a risk factor for disease, not a disease in and of itself. States of being can be unhealthy or unpleasant without being “diseases” — medicalizing every lifestyle or diet seems unhelpful, at best.

    1. wriggles
      wriggles September 26, 2013 at 1:42 pm |

      States of being can be unhealthy or unpleasant without being “diseases” — medicalizing every lifestyle or diet seems unhelpful, at best.

      This is genuinely amusing, coming from you.

      1. Bagelsan
        Bagelsan September 27, 2013 at 8:24 pm |

        …Because I’m an eosinophil? *puzzled*

        1. wriggles
          wriggles September 28, 2013 at 10:01 am |

          I’ve no idea what “eosinophil” means. I was referring to how well you expressed that unpleasant states shouldn’t be deemed ‘disease’ for reasons other than they are. Like for instance, enabling people to drug themselves without feeling they’re drug dependents or addicts.

          Which of course has been too stigmatized for “respectable” drug seekers.

        2. Bagelsan
          Bagelsan September 28, 2013 at 5:10 pm |

          An eosinophil is the type of cell that’s in my profile picture; that was the only “medicalizing” thing about me I could think of. The rest of your comment is confusing, and I’m not sure what you’re getting at. Did we have a conversation about drug use that I’m forgetting?

  6. Athenia
    Athenia September 26, 2013 at 11:32 am |

    A small quibble—I think it’s worth pointing out that fat stigma didn’t begin in 1980, so if we are going to talk about the “good old days”, you’d have to bring it back to pre-1800s. Epidemiology didn’t even exist til the late 1800s.

  7. a lawyer
    a lawyer September 26, 2013 at 12:22 pm |

    I wish there was a bit of a saner middle ground.

    For example, it would sure be nice if the anti-obesity folks would admit, among other things, that

    1) Obesity won’t kill you, and in fact you can be both healthy and obese at the same time;

    2) It’s not usually realistic to lose a significant amount of fat in order to become much less obese, and it’s often relatively unhealthy to try, so “stop being obese” methods are not usually a great thing.

    And it sure would be nice if the pro-obesity folks would admit, among other things, that

    1) All things being equal, it’s usually preferable not to be obese and it tends to help a bit on some health measures, not to mention some quality of life measures;

    2) It’s actually quite realistic to prevent folks from gaining a significant amount of fat, and (unlike loss) it’s usually achievable with healthy methods. The statement “let’s not become any more obese than we are now” is a completely different thing from the statement “let’s all try to become skinny.”

    The anti-fat folks are so skeeved by fat people that they feel it necessary to claim that fat kills, even though it doesn’t.
    The pro-fat people are so skeeved by the concept that they might not be viewed as the pinnacle of health and goals for one’s body that they feel it necessary to oppose every obesity initiative.

    Sigh.

    1. wriggles
      wriggles September 26, 2013 at 1:37 pm |

      “Pro obese” I’ll bet that’s like “pro abortion”.

      ‘obese’ defines human beings as disease-I’ll leave you to work out why. A human being asserting that they are actually human and experiencing their own existence, isn’t insane partiality, its mere fact.

      But, feel free to describe any fragrant “middle ground” between person as disease and person as person, but I think you’ll find the problem is ad hominem. Fat people like myself are all wrong therefore, what we say is always wrong. ‘obesity’ as a construct creates an air of suspicion that nothing can discharge. What we say will always seem and feel wrong to those who define us as ‘obese’.

      After all, the man linked to isn’t saying anything that hasn’t been said by us. But it’s somehow “centrist common sense”, coming through his righteous body, see? It’s the body that’s right or wrong, not the opinion.

      It’s a bit like being a woman, or “pro ho” as you’d probably say.

      1. a lawyer
        a lawyer September 26, 2013 at 11:32 pm |

        “Pro obese” I’ll bet that’s like “pro abortion”.

        If you functionally oppose any initiatives which are designed to prevent people from being obese, in the name of avoiding offense to the folks who are obese, while simultaneously talking about how it’s A-OK to be obese, then: yup, you deserve that label. If so, own it. I don’t see anything wrong with pro-abortion as a label; I would accept that label myself insofar as abortions are generally a positive thing.

        ‘obese’ defines human beings as disease-I’ll leave you to work out why.

        What in hell are you talking about? “Obese” refers to a temporary and malleable medical status, like anything else. And in that manner it’s just like all similar descriptors. Does “cisgendered” define people as gender? Does “tall” define people as units of measurement? Does “redheaded” define someone as a color and not as a human? Don’t be ridiculous.

        A human being asserting that they are actually human and experiencing their own existence, isn’t insane partiality, its mere fact.

        Um. What?

        I don’t deny that you exist. I deny that your existence or humanity is challenged by the application of an accurate label.

        But, feel free to describe any fragrant “middle ground” between person as disease and person as person, but I think you’ll find the problem is ad hominem.

        I think that the problem here is that you are running so far up the metaphor tree that you’re over the waterfall in the rain. Oops, did I say that? In all seriousness this makes no sense at all.

        Fat people like myself are all wrong therefore, what we say is always wrong.

        Well, no. YOU’RE wrong, and you make little sense, but that has nothing to do with the fact that you are, as stated, fat. But I’m also fat, and–like you–it doesn’t affect my argument much. Of course, I presume you think I’d only say this if I’m skinny, right? Well, bummer for us both; I’m not skinny. Are you sure you want to be the one slinging “ad hominem” accusations around?

        ‘obesity’ as a construct creates an air of suspicion that nothing can discharge.

        [looks in mirror] Nope. Still not suspicious. Discharged!

        What we say will always seem and feel wrong to those who define us as ‘obese’.

        Well, to the limited degree that it makes sense, your statement isn’t affected one way or another by the fact that you (not I!) apparently choose to define yourself as obese.

        But anyway: Of course. Viewpoint is relevant. The views of people who are willing to discuss problems with obesity are more believable on the “this treatment of obesity is wrong” point than those who claim that every treatment of obesity is wrong. That’s true for everything else as well: rich people who want to raise taxes; criminal defense attorneys who want to reduce civil rights; etc.

        1. wriggles
          wriggles September 28, 2013 at 11:32 am |

          Your reaction was what the post was trying desperately to get around.

          You can only consider opposition to the lie of people-as-disease, if it comes from a source who’s not affected/contaminated by it.

          So, whatever.

      2. Jerry
        Jerry September 27, 2013 at 1:39 pm |

        “Obese” refers to a temporary and malleable medical status, like anything else.

        Excuse me, doesn’t the statistical evidence show pretty overwhelmingly that obesity is not at all “malleable” for the vast majority of people?

        1. matlun
          matlun September 27, 2013 at 3:34 pm |

          Excuse me, doesn’t the statistical evidence show pretty overwhelmingly that obesity is not at all “malleable” for the vast majority of people?

          That depends on what you mean. For example: I have increased in weight considerably since my teenage years, so at least for me it has proven a malleable state.

          More seriously: It is obviously possible to change your weight drastically if you really want to. If I knew 100% that I would die if I did not lose 40 pounds in a year, I would succeed in doing so. (Sadly, that would still not make me underweight.) It is just that it is not a dominant priority in my life and my motivation has not been that strong.

          If you had said that it is not typically a temporary state, I would have agreed with you.

      3. Bagelsan
        Bagelsan September 27, 2013 at 8:37 pm |

        So, are we allowed to diagnose anything, in wriggles’ book? Or would that be turning people into diseases? Because in that case I was once a Chickenpox instead of a child, and currently I’m a Depressed instead of an adult. :p

        1. wriggles
          wriggles September 28, 2013 at 10:08 am |

          Yep, things that are actual diseases. With an underlying process, convincing symptomatology, aetiology and a meaningful prognosis.

          I refuse to believe that’s too much to ask.

          N.B. Chickenpox is an actual infectious disease, not one’s body (mass).

        2. Bagelsan
          Bagelsan September 28, 2013 at 5:11 pm |

          So we’re not allowing things like chronic pain to be diagnosed, then, or certain mental illnesses? Because they’re often lacking things like a known etiology, etc.

        3. macavitykitsune
          macavitykitsune September 28, 2013 at 5:22 pm |

          Chronic pain and mental illnesses, in my case, cause me issues in daily functioning, managing stress levels, handling my emotions and thoughts and maintaining a healthy social life. OTOH 99% of the issues my fat causes me are directly related to smug assholes like you, Bagelsan, making my life difficult, apparently for shits and giggles. Just putting that out there.

        4. Bagelsan
          Bagelsan September 28, 2013 at 5:35 pm |

          You’re right, macavity, as a person who is fat and has chronic illnesses myself I should definitely not share my opinion on this issue. What was I thinking.

        5. macavitykitsune
          macavitykitsune September 28, 2013 at 6:04 pm |

          Yes, because everyone in a marginalised category has no internalised issues whatsoever, and everyone in a marginalised group is required to only ever offer respectful silence and possibly bouquets of orchids when a fellow member chews on feet with semi-pro regularity on that marginalisation. How could I dream of critiquing you!

        6. Bagelsan
          Bagelsan September 29, 2013 at 12:32 pm |

          I solemnly swear I have no interest in your feet. But you do seem to insert them into other people’s mouths with alarming regularity; I’m not surprised you feel chewed on.

        7. macavitykitsune
          macavitykitsune September 29, 2013 at 12:40 pm |

          Bagelsan, that was

          a) uncomfortably sexual and I really don’t appreciate it,

          and b) very clever. I really miss having 8yos around, and I’m glad you’re around to take up the slack with such predictable regularity.

          If you’re going to object to being called a smug asshole for your opinions, try not deserving it. I’m not going to shy away from calling you an asshole and a fairly consistent fatphobe just because you’re fat.

    2. RP
      RP September 27, 2013 at 10:33 am |

      There is no such thing as “pro-obesity” folks. You make it sound like there’s a group of people out there saying that everyone should force themselves to gain weight because we’d all be better off fat.

      I can’t even address the two things you think this non-existent group of people needs to admit, it’s so ridiculous.

      1. Bagelsan
        Bagelsan September 27, 2013 at 8:33 pm |

        Weeell, some people do come across as “pro-obesity”. It certainly isn’t all or most people, even among us fat ones, but you can’t say that they don’t exist. When obesity rates are rising and that’s considered fine and good that’s pretty “pro” in my book; I’ve never seen the equivalent “pro-abortion” stance in pro-choice people, where rising abortion rates would be considered desirable.

        1. Andie
          Andie September 28, 2013 at 6:59 pm |

          Not so much that we and by we I mean I, as one person who identifies as fat-positive, think that increasing obesity rates are awesome and that everybody should be aiming to be as fat as fucking possible because it’s like TOTALLY RAD but more that obesity and obesity rates and fatness are morally neutral. It’s not bad that I’m fat. It’s not good either. It just is.

          From my own perspective it’s more a movement of “let us just fucking BE without classifying our bodies as inherently diseased and bad.”

        2. EG
          EG September 28, 2013 at 9:54 pm |

          I’ve never seen the equivalent “pro-abortion” stance in pro-choice people, where rising abortion rates would be considered desirable.

          I would consider it desirable if it were because women were not being forced to bear children against their will. On its own, without a reason, I’d consider it morally neutral.

        3. Bagelsan
          Bagelsan September 29, 2013 at 12:30 pm |

          Having an uptick in a medical procedure for “no” reason would be a huge red flag to me that something might be wrong, for example no access to effective contraception. Likewise with obesity, where a population-wide uptick seems to indicate things like no access to healthy food and exercise. If things change for no reason and you don’t care at all, that’s …interesting.

        4. Andie
          Andie September 29, 2013 at 3:04 pm |

          Likewise with obesity, where a population-wide uptick seems to indicate things like no access to healthy food and exercise. If things change for no reason and you don’t care at all, that’s …interesting.

          In that case, obesity isn’t a problem… Lack of access to healthy food and exercise is the problem.

          So instead of waging war on a body type, wage a war on food deserts and lack of funding for parks and physical education programs.

      2. wriggles
        wriggles September 30, 2013 at 8:54 am |

        There is no such thing as “pro-obesity” folks.

        This.

        This nonsense was proposed by the sort of people who gripe about “homosexual propaganda”.

        The point about ‘pro-abortion’ is this focus comes from the feeling of abortion as an unspeakable shame. Whereas anyone who understands the merits of having that option is rather underwhelmed.

        As it is, ‘obesity’ reminds me of a pagan responding in frustration to attacks by Christians who kept accusing people like him of being satanists.

        He pointed out to them that, “Satan is your belief!”

        ‘obesity’ is the creation of those who take a dehumanized view of people that humanists simply cannot share.

        They are the ones that “promote” it and are “pro” it, because they are the ones that give it currency.

        Without them, we’d all just be people of differing size.

  8. RP
    RP September 27, 2013 at 10:49 am |

    My previous employer did that Virgin HealthMiles thing (the electronically monitored walking program). It was voluntary there but making it mandatory just seem like a sideways method of introducing a financial penalty for being fat (former employer did have a straight up financial penalty for smoking).

    See, the money to pay for this comes out of your paycheck. So either you walk enough to get enough points to offset this (in the form of gift cards instead of cash in your bank account to pay bills with) or your paycheck is smaller with no recourse.

    I could see someone suing over it being mandatory: for one thing, does the employer even give you time to exercise? If overtime is constantly eating into the time you could use to walk, isn’t this their fault? If it’s unreasonable to financial punish someone for not having the time then does it matter if it’s the employer’s fault? Should someone’s paycheck be smaller because they spend spend all their free time caring for an ill parent/child? Volunteering? Doing a second/third job?

    Ultimately, how fair is it for an employer to mandate that you do extra work and not get paid the agreed wage for it (in fact, you have to pay for the privilege of being monitored)? If I’m walking because the company makes me, they should be paying me my hourly rate, not assigning a point per step.

    1. EG
      EG September 27, 2013 at 12:16 pm |

      I strongly agree with this. It’s very much a labor issue–if extra labor is being required of me, then I want extra compensation. If the labor is over and above what I have been hired to do, then I want the freedom to refuse it without paying any penalty.

  9. sal
    sal September 28, 2013 at 12:35 pm |

    Ive never understood why any employer program that requires u to do anything on your own time such as walking doesnt get sued for unpaid labor.

  10. wriggles
    wriggles September 30, 2013 at 8:21 am |

    @ Bagelsan

    So we’re not allowing things like chronic pain to be diagnosed, then, or certain mental illnesses?

    “disease” as a construct is not required to recognise things that don’t properly fit into it. As you’ve already pointed out yourself;

    States of being can be unhealthy or unpleasant without being “diseases”

    Exactement.

  11. C.
    C. October 1, 2013 at 11:01 am |

    Has anyone else gotten the impression that, increasingly, knowing your rights doesn’t matter in the U.S.? I point out what the law is to someone, and it doesn’t matter: the harassment or violation of rights continues. (In fact, it often becomes worse, at least with larger employers.) My attorney says it, and voila! Problem resolved.

  12. Olivia Palmer
    Olivia Palmer October 24, 2013 at 8:22 am |

    What a sad day in America, to have been grouped in with all obese people in America. People are obese for different reasons.

    You may be surprised of my regular diet and exercise. Many could not handle it. Especially with my low carb veggies and blended kale and spinach every morning. Yet I still do not lose weight consistently.

    Ive had stress tests which prove my great endurance at 250lbs down from 330, and have had tests that tell me my heart is as strong as a 20 something year old’s.

    And while it may seem obese people sit around and eat all day, I’ve 2 dogs i walk and play with daily, I exercise 2 hours a day three days a week, and spend the other 4 revovering from body aches and joint pain.

    Want a clue? Try considering my whole family weighing 3-400 lbs but at 5’8″ to 6’2″. Then try me at 5’5″. Huge difference correct.

    I was even told at an interview that my credentials were staggeringly impressive yet as an IT Person I was expected to be the perky savvy nerd girl. Not obese. I was told this would be denied if I tried to push discrimination.

    I was born fat and have been struggling against it ever since. Weight fluctuations are hard on the heart. Will I die first. Before this disease is figured out?

    Stop assuming and try to truly help.
    It should be deemed a disease unless proven otherwise!

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