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

TLDR: 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 as mentioned in this paper. 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.

Abstract: 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 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.

Full text

1
‘All About That Bass’? Is non-ideal-weight discrimination unlawful in the UK?
Tamara Hervey
*
and Philip Rostant
*
Keywords: Discrimination; Disability; Equality Act; EU law
Abstract
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 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.
A Introduction
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’.
*
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 applies.

2
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 group – that of
people who are perceived to be overweight. Several decades of research
1
confirm patterns of
persistent discrimination against people of ‘non-ideal-weight’,
2
in the workplace, and in other
contexts. One US study, which controlled for other factors such as race and educational attainment,
showed that overweight women earn on average $9000 a year less than women of average weight.
For obese women, the average is a shocking $19000 a year less.
3
Nor is disadvantage limited to pay.
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
http://ftp.iza.org/dp8526.pdf; 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 Wage Effects of Obesity: A
Longitudinal Study’ (2004) 13 Health Economics 885; J. Cawley, ‘The Impact of Obesity of 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. Hamermesh 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 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, citing Shinall, above n 1, and J. B. Shinall, Occupational Characteristics and the Obesity Wage
Penalty (Working paper, 2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2379575
(last accessed 15 July 2015).

3
There is also evidence, for instance, that weight is a factor in hiring decisions.
4
The statistics are
comparable in European contexts,
5
although some studies show that the relationships between
weight and disadvantage are more complex than initial studies suggested.
6
The 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
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 312.
5
G. Brunello and B. d’Hombres, ‘Does Body Weight Affect Wages? Evidence from Europe’ (2007) 5 Economics
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’ in K. Bolin and J. Cawley (eds),
Advances in Health Economics and Health Services Research, The Economics of Obesity (Amsterdam: Elsevier,
2006); A. Paraponis et al, ‘Obesity, Weight Status 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 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
Organization, 2003).

4
do significant functional limitations to mobility, bending or lifting arise.
8
And 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 grounds of disability has been
expressly prohibited by statute since the Disability Discrimination 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 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
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: Princeton
University Press, 2013), 52-54, 103-108; D. Rhode The Beauty Bias: The Injustice of Appearance in Life and Law
(Oxford: OUP, 2010).
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).

5
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 disability. The
direction of travel of the latter, on the other hand, is away from the medical model towards what is
known as a ‘social model’. Crucially, the social model includes attitudinal barriers among those
barriers 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 individuals 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 discrimination, 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
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 (CUP, 2016). See further
below.

Frequently asked questions

Q1. What contributions have the authors mentioned in the paper "‘all about that bass’" ?

In this paper, the UK 's Equality Act 2010 has been examined in the context of discrimination against non-ideal-weight individuals in the UK. 

Q2. What future works have the authors mentioned in the paper "‘all about that bass’" ?

For that reason, the Act is able to extend protection only to the limited number of people whose weight is such that it causes them functional deficit. Although the authors have considered the possibility of persons with non-ideal-weight bringing themselves within the definition by relying on the concept of ‘ severe disfigurement ’, they have, on balance, concluded that it is unlikely that UK courts and tribunals would construe the term ‘ severe disfigurement ’ as extending to persons of non-ideal-weight, except perhaps in the cases of extreme emaciation or obesity, which would in any case meet the medical model ’ s definition. Nonetheless, the authors conclude that, on balance, save for claims against a state employer, the possibility of introducing a social model definition of disability into UK law remains highly problematic. The authors have described the potential disruption caused by a definition of disability confined to workplace discrimination when the Equality Act 2010 seeks to extend a single definition to discrimination cases arising in several spheres. 

Q3. What is the reason that disfigurement is given access to the protected category?

‘The reason that disfigurement is given access to the protected category by the device of the deeming provision is that those who are at risk of being refused employment or disadvantaged in relation to employment arrangements because of their appearance form a group that require equivalent protection to those who cannot carry out normal day-to-day activities. 

Q4. What is the significance of prominence in determining whether the disability is met?

In the case of severe disfigurement, prominence or visibility of the impairment is a factor in determining whether the gateway test of ‘functional deficit’ is met. 

Q5. What is the reason for the disadvantage which people of non-ideal weight experience?

It is not their appearance per se, provoking revulsion or fear, but because their weight triggers conscious or unconscious bias centred on their personality, which gives rise to discriminatory treatment. 

Q6. What does the CJEU say about the duty to make reasonable adjustments?

In the case of the duty to make reasonable adjustments, the CJEU in Coleman affirmed that the duty (reasonable accommodation in Art 5 of the Framework Directive) applies only to people who have a disability. 

Q7. What is the problem with the introduction of the Directive into the national legislative framework?

the difficulties for courts and tribunals in finding an appropriate route for the introduction of the Directive into the national legislative framework and the consequences for the litigation of cases should they do so are such that, in their view, compliance with EU law cannot be achieved without further legislation. 

Q8. What is the main argument for the CJEU’s decision to pursue the horizontal direct effect?

The constraints upon UK courts in their interpretative duties and the uncertain state of the jurisprudence on the horizontal direct effect of the general principle of non-discrimination preclude an effective remedy in practical terms.