As a Matter of Fat

While it may be self-evident that some fat people are subject to some degree of social scorn and unfair treatment, advocates of the new size discrimination ordinance provided no statistics to show that "discrimination based on body size is a serious social problem in San Francisco," as the ordinance asserts. In fact, fat activists admit that there is a lack of solid evidence that weight discrimination is a pressing social problem. "Although anecdotal evidence abounds, definitive numbers measuring employment discrimination against fat people are difficult to ascertain," Solovay writes.

It is all but impossible to contend, with a straight legal face, that the mistreatment of fat people approximates, in any way, the systematic historical oppression blacks and women have suffered in America. Even so, the bad personal experiences of a handful of fat activists have been used to inspire the creation of a far-reaching law that will likely collapse if it is tested in court.

The Keefer complaint against the San Francisco Ballet may not long survive its minutes of fame. The ballet school's lawyers are trying to cast the matter as an employment dispute, an argument that, if accepted, could lead to dismissal of the complaint on the grounds that body type is a "bona fide occupational qualification" for a ballerina. The lawyers are also arguing that the school is a private club, like the Boy Scouts of America, rather than a public accommodation, and so may constitutionally choose who may join, even if that choice excludes homosexuals.

Larry Brinkin helped Keefer write the complaint, and is also the Human Rights Commission official charged with investigating the complaint. If he finds evidence of discrimination, he will recommend sanctions against the school, which could range from taking away its $500,000 per year in city arts funding to incarcerating the school's chief executive.

Should Brinkin find in favor of Keefer, it is likely that the school will go to court. And the size law appears to be quite vulnerable to challenge on any number of grounds. The law could be overturned because the weight category is mutable and inherently vague. Then again, there is no empirical evidence that size discrimination has been a significant historical problem in San Francisco. Even the height category is mutable if one is, like Fredrika Keefer, 8 years old.

It is also quite possible that state law may be found to trump the city's size discrimination ordinance.

Mike Sweeney, chief counsel for the California Department of Fair Employment and Housing, says discrimination in public accommodation -- the basis of the Keefer complaint -- is covered by the state's Unruh Civil Rights Act. He indicates that a lawsuit brought under San Francisco's height and weight ordinance could be thrown out of court because California Supreme Court rulings during the past decade have clearly shown that local discrimination ordinances are pre-empted by state law. The state Legislature, he notes, has shown an intent to "occupy the field" in all matters of discrimination.

Publicly, the City Attorney's Office disputes this analysis of the city's new height and weight law. But a letter the office sent to city supervisors in May 2000 (and now refuses to release, arguing that it is protected by attorney-client privilege) apparently put forward just such an analysis. The San Francisco Chronicle, which obtained a copy of the letter, reported that it said: "The state Fair Employment and Housing Act appears to pre-empt the city's ability to add categories of discrimination it wants to ban. The opinion said that local judges "will probably dismiss civil actions brought to redress acts of alleged discrimination.'"

Brinkin says that he will soon make public the work of a small committee that is drawing up guidelines intended to eliminate size discrimination in San Francisco. The committee consists of Brinkin, Deputy City Attorney Cathy Barnes, and Solovay, the law school graduate, author, and fat activist. Dwarves are not helping to write the guidelines. Tall and thin people are not represented on the committee, either, even though the height and weight provisions would seem to apply to them as well.

Among other things, Brinkin says, the committee is looking into requiring movie theaters and restaurants to provide a reasonable number of armless seats for the fat. "The Human Rights Commission will decide what is reasonable," he remarks. "We want to make all businesses and organizations more accommodable to the full range of human size."

It is unclear exactly how far such accommodation must go, under San Francisco's size ordinance, to be reasonable. In her book, Solovay lays out what should be done to make public accommodations more fat-navigable. She would change "physical obstacles including but not limited to: seating in public and private means of transportation like buses, subways, and airplanes; certain public restrooms; any establishment with limited seating options like classrooms, stadiums, and theaters; public walkways that lack handrails or accessible periodic rest areas; and public places that are unusually narrow like some hallways and checkout aisles in stores."

Stephen Cornell, vice president of the Polk Street Merchants Association, says the new laws could be an expensive headache for small businesses, especially ones that must compete with stores in shopping centers outside the city limits, and beyond reach of the fat discrimination law. "Merchants want to accommodate customers," he remarks. "But how is a 10-by-10-foot storefront in Chinatown going to be able to afford a retrofit? And what about the SRO hotels with narrow hallways and small rooms?"