Tamara Hervey and Philip Rostant
other factors such as race and educational attainment, showed that overweight
women earn on average $9,000 a year less than women of average weight. For
obese women, the average is a shocking $19,000 a year less.3Nor is disadvantage
limited to pay. There is also evidence, for instance, that weight is a factor in
hiring decisions.4The statistics are comparable in European contexts,5although
some studies show that the relationships between weight and disadvantage are
more complex than initial studies suggested.6The evidence of bias and negative
assumptions relates to people who are ‘merely’ overweight, as well as to those
who are obese and to those who would be classified as morbidly obese.7
Only at the levels of morbid obesity do significant functional limitations to
mobility, bending or lifting arise.8And although much of the research concerns
overweight people, there is also evidence that people who are underweight
suffer similar disadvantage.9
Given that people of non-ideal-weight suffer from discrimination, are they
protected from that discrimination by the law in the UK? Being overweight,
or even obese, is not in itself a prohibited ground of discrimination in UK
law, or in the law of the European Union, which is the source of many non-
discrimination entitlements in the UK. But discrimination on the g rounds of
of weight is irrelevant; what matters here is the perception of those initiating or perpetuating
3 S. McGee, ‘For women, being 13 pounds overweight means losing $9,000 a year in salary’ The
Guardian 30 October 2014 and J. B. Shinall, Occupational Characteristics and the Obesity Wage
Penalty Working paper, 2014 at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2379575
(last accessed 15 July 2015).
4 J. M. Fletcher, ‘Beauty vs Brains: Early labor market outcomes of high school graduates’ (2009)
105 Economics Letters 321; J. Larkin and H. Pines, ‘No Fat Persons Need Apply: Experimental
Studies of the Overweight Stereotype and Hiring Preference’ (1979) 6 Work and Occupations
5 G. Brunello and B.d’Hombres, ‘Does Body Weight Affect Wages?Evidence from Europe’ (2007)
5Economics and Human Biology 1; S. Morris, ‘The impact of obesity on employment’ (2007) 14
Labour Economics 413; J. Garcia and C.Quintana-Domeque, ‘Obesity, Employment and Wages in
Europe’inK.BolinandJ.Cawley(eds),Advances in Health Economics and Health Services Research,
The Economics of Obesity (Amsterdam: Elsevier, 2006); A. Paraponiset al, ‘Obesity, WeightStatus
and Employability: Empirical evidence from a French national survey’ (2005) 3 Economics and
Human Biology 241; S. Sarlio-Lahteenkorva and E. Lahelma, ‘The association of Body Mass
Index with social and economic disadvantage in women and men’ (1999) 28 International Journal
of Epidemiology 445.
6 M. Caliendo and M. Gerhsitz, ‘Obesity and the Labor Market: A Fresh Look at the Weight
Penalty’ IZA Discussion Paper, February 2014 at http://ftp.iza.org/dp7947.pdf (last accessed
15 July 2015); B. Harper, ‘Beauty, Stature and the Labour Market: A British Cohort Study’
(2000) 62 Oxford Bulletin of Economics and Statistics 771 (this study found that once ability was
controlled for, the ‘beauty premium’ disappears).
7 The World Health Organisation defines a person as overweight if their body mass index
(a person’s weight divided by the square of their height) exceeds 25, and obese if it exceeds 30.
Severe,morbid or type ii obesity (the terms are used interchangeably) begins at BMI 40. WHO,
Obesity: preventing and managing the global epidemic Report of a WHO Consultation (Geneva: WHO
Technical Report Series 894); WHO, Obesity and Overweight: Fact Sheet Global Strategy on Diet,
Physical Activity and Health (Geneva: World Health Organisation, 2003).
8 See, eg, M. A. Stefan, M. W. Hopman and J. F. Smythe, ‘Effect of activity restriction owing to
heart disease on obesity’ (2005) 159 Archives of Pediatrics and Adolescent Medicine 477.
9 See, eg, D. S. Hamermesh, Beauty Pays: Why Attractive People are More Successful (Princeton, NJ:
Princeton University Press, 2013) 52-54, 103-108; D. Rhode, The Beauty Bias: The Injustice of
Appearance in Life and Law (Oxford: OUP, 2010).
C2016 The Authors. The Modern Law Review C2016 The Moder n LawReview Limited.
(2016) 79(2) MLR 248–282 249