As a Matter of Fat

Ornish puts it more directly. "Weighing 300 pounds is not OK," he says. "Saying that obesity is 80 percent genetic absolves [fat people] of responsibility to do anything about it. It would be better if they said, "I am predisposed to obesity, so I will work to improve my health,' thereby losing weight."

In Tipping the Scales of Justice, Solovay writes: "The prejudice against fat is similar, sometimes more severe than race-based bias." She claims that fat people are "an oppressed biological minority," and links the medical establishment's so-called "war on fat" to "genocide." Bemoaning the fact that most courts treat fat as a mutable condition, she declares, "Discrimination against fat people is the civil rights hurdle of the new millennium."

Solovay and Wann insist that discrimination against fat people is pervasive. And there is some empirical evidence showing that, at the very least, college students and sales managers are prejudiced against fat people. Last year, Personnel Psychology published an analysis of 29 studies of anti-fat prejudice. The report, "Weight-Based Discrimination in Employment: Psychological and Legal Aspects," was written by Mark V. Roehling, a business professor at Western Michigan University. On the whole, the studies were more a measure of people's bad attitudes than a measure of provable acts of discrimination. Roehling determined that there is workplace discrimination against fat people, but he attributed an important feature of the bias against overweight employees to society's general bias against "unattractive" people. Roehling noted that our culture tends to view "attractive people as more intelligent, sociable, dominant, mentally healthy, and socially skilled than unattractive people."

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.