‘All About That Bass’? Is non‐ideal‐weight discrimination unlawful in the UK?

AuthorTamara Hervey,Philip Rostant
Publication Date01 March 2016
‘All About That Bass’? Is non-ideal-weight
discrimination unlawful in the UK?
Tamara Herveyand Philip Rostant∗∗
People of non-ideal-weight (overweight or severely underweight) are subjected to discrimina-
tion, in the workplace and elsewhere, based on attitudinal assumptions and negative inferences
from their membership of a group, such as that they are insuff‌iciently self-motivated to make
good employees. But is that discrimination unlawful in the UK? The Equality Act 2010 offers
only a very tenuous route for protection, because the Act is based largely on a ‘medical model’
of disability. EU law, which embraces a ‘social model’ of disability, drawing from the UN
Convention on the Rights of Persons with Disabilities, offers more, at least in theory. But the
mechanisms for enforcing individual EU law rights mean that entitlements in EU law are likely
to be enforceable in practice only against state employers. This situation leaves a gap in the law
which is remediable only by legislative reform.
Our awareness of general attitudinal biases against people of ‘non-ideal-weight’
was given added focus when our daughters introduced us to Meghan Trainor’s
pop song ‘All About that Bass’. Trainor’s clever lyrics draw attention to the
unspoken but pernicious assumptions about the qualities of people based on the
irrelevant criterion of their membership of a particular g roup – that of people
who are perceived to be overweight. Several decades of research1conf‌irm
patterns of persistent discrimination against people of ‘non-ideal-weight’,2in
the workplace, and in other contexts. One US study, which controlled for
Jean Monnet Professor of EU Law, School of Law, University of Sheff‌ield.
∗∗Employment Judge. We are grateful to HHJ Jenny Eady QC,Colm O’Cinneide, Damian Gonzalez-
Salzburg, and two anonymous reviewers for their comments and suggestions. The usual disclaimer
1 See, for instance, S.E. Jackson et al, ‘Perceived Weight Discrimination in England: a population-
based study of adults aged 50 years’ (2014) International Journal of Obesity 107; X. Liu and
E. Sierminska, ‘Evaluating the Effect of Beauty on Labor Market Outcomes: A review of
the literature’ IZA Discussion Paper, October 2014 at http://ftp.iza.org/dp8526.pdf (last ac-
cessed 9 November 2015); M. Caliendo and W. Lee, ‘Fat chance! Obesity and the transition
from unemployment to employment’ (2013) 11 Economics & Human Biology 121; R. M. Puhl
et al, ‘The stigma of obesity: a review and update’ (2009) 17 Obesity 941; C. Baum and W. Ford,
‘The WageEffects of Obesity: A Long itudinal Study’ (2004) 13 Health Economics 885; J.Cawley,
‘The Impact of Obesity on Wages’ (2004) 39 Journal of Human Resources 451; J. Pagan and
A. Davila, ‘Obesity, Occupational Attainment, and Earnings’ (1997) 78 Social Science Quarterly
756; D.Hamer mesh and J. Biddle,‘Beauty and the Labour Market’ (1994) 84 American Economic
Review 1174.
2 The phrase ‘non-ideal-weight’ captures the notion of the (unspoken) norm from which a
notional ‘ideal weight’ deviates as an idea, rather than something objectively measurable. It
includes both over- and under-weight individuals, although the former is signif‌icantly more
common. Whether body mass index (BMI) or some other indicator is an appropriate measure
C2016 The Authors. The Modern Law Review C2016 The Moder n LawReview Limited. (2016) 79(2) MLR 248–282
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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
discriminatory behaviour.
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
‘All About That Bass’?
disability has been expressly prohibited by statute since the Disability Discrim-
ination Act of 1995. So the central question for this article is whether people
of non-ideal-weight can properly be described as disabled, in the sense of the
applicable law. If so, then our investigation offers a possible route for legal
protection through litigation, without the need for statutory law reform. If
this is not the case, then the law as it currently stands offers no protection.
We do not concern ourselves here with whether that position is appropriate,
from rational economic, ethical, or deontological perspectives, although we
acknowledge that even pursuing this research agenda implies a view that such
protection would be appropriate.10
We investigate in turn two possible routes for demonstrating that non-ideal-
weight discrimination is disability discrimination in the UK: under domestic
law as it currently stands, and by applying EU law. Our overall argument is
that the former, while possible, constitutes a rather unsatisfactory and tenuous
approach. Domestic law cleaves to what is known as a ‘medical model’ of
disa bility. The direction of t ravel of the latt er, on the other h and, i s away from
the medical model towards what is known as a ‘social model’. Crucially, the
social model includes attitudinal barriers among those bar riers the effects of
which must be tackled by anti-discrimination law. It is such attitudinal barriers,
including assumptions about the capacities, qualities and characteristics of indi-
viduals on the basis of their perceived membership of a particular group, which
lead to non-ideal-weight discrimination in the workplace and elsewhere. EU
law, which embraces a ‘social model’ in its def‌inition of disability discrimi-
nation, therefore offers more promise than domestic legislation to those who
suffer non-ideal-weight discrimination in the UK.11
Secondly, our analysis offers an insight, drawing on an important example,
into the practical interactions between international human rights law, EU law
and domestic statute law. What are the obligations on the UK judiciary to
interpret domestic statutes where EU legislation applies? Do these differ where
the EU law itself embodies international human rights obligations, ref‌lected
in the EU’s Charter of Fundamental Rights? How do British courts comply
with duties of deference to the UK parliament, with the consequences implied
by the obligations of statutory interpretation, at the same time as duties in
EU law to secure enforceability of rights found in EU Directives, and human
10 Some countries already protect from discrimination in some contexts on the grounds of physical
appearance, for instance France’s Labour Code Art L 112-45. For discussion, see L. S. Burri
and S. Prechal, ‘Comparative approaches to gender equality and non-discrimination within
Europe’ and S. Laulom, ‘French legal approaches to equality and discrimination for intersecting
grounds in employment relations’, both in D. Schiek and V. Chege (eds), European Union Non-
Discrimination Law (Abingdon: Routledge, 2009).
11 In adopting this approach to the social model, we are referring to ‘attitudinal barriers’ arising
from the views and perceptions of people who do not have disabilities (for instance, employers),
rather than the attitudes of people with disabilities themselves. By contrast, O’Brien has argued
that the EU’s def‌inition of disability is based on ‘the language of the social model of disability,
but adhering to a predominantly medical model . .. a market-medical model in which the
“attitudinal barriers” are those of the disabled people themselves’, see C. O’Brien, ‘Union
citizenship and disability: restricted access to equality rights and the attitudinal model of disability’
in D. Kochenov (ed), Citizenship and Federalism in Europe: The Role of Rights (Cambridge: CUP,
2016). See further below.
250 C2016 The Authors. The Modern Law Review C2016 The Moder n LawReview Limited.
(2016) 79(2) MLR 248–282

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