Yes, You Can Be Fired for Being Fat

fat faced bias in every corner of their lives. In one survey, respondents rated people who looked overweight as lazier, weaker willed, and less likely to win on Jeopardy. And being overweight can even cost you your job Joining me is Bloomberg Business Week reporter josh Idolson. Josh found that people who are overweight are hired less, promoted less, and

paid less. One study suggests that gaining one point of body mass index, which is just six pounds for an average American woman, causes a woman's hourly pay to drop by two. This exemplifies how systemic weight discrimination is in US society and in the US workplace, where having more weight can mean not being hired, not being promoted, not being retained, or being fired, as well as being paid less money and being put in less desirable positions, and

companies get away with this treatment of overweight employees. Something many people don't realize is that discrimination based on weight is legal in almost all of the country. There's only one US state, Michigan, which has banned discrimination based on weight. There are a hands full of cities that have done it. Federal law covers categories like religion and race and veteran status,

but not explicitly your weight. There are cases where people with obesity have challenged alleged discrimination based on their weight under the Americans with Disabilities Act. That ad A prohibits discrimination based on physical impairments that interfere with major life activities, but courts in general have been pretty hesitant about finding weight to be something that is covered as a disability under the ADA, even in cases where we're talking about

more serious obesity. Federal judges have written that considering obesity to be a disability could create a slippery slope that would even include protecting grossly short people. That's one of several cases in which federal judges have bulked at the idea that someone's obesity inherently is a protect the disability, and so judges have asked questions about whether there's a

physiological cause to the person's obesity or not. As one law professor put it to me, these cases can seem pretty judge e on the judge's part, and one of the authors of the Americans with Disabilities Act argued to me that these distinctions are not really in the text of the law, that the law itself does not ask what's the origin of someone's disability? Is it in their genes or is it in a choice that they made.

But there has been a sense in many of the cases from the judges that it just can't be that obesity itself automatically is legally protected. Some judges have been concerned with this concept called immutability, that is, whether the trait that's subject to discrimination is one a person can't change. This is a tricky issue, in part because a lot of Americans think of weight as not out of someone's control, as something that is a consequence of people's choices, a

consequence of their willpower. But the mutability of weight really is overstated. If you look at the science on this, and in fact, the weight of a mutability is overstated too. Many of the categories that are protected under discrimination law are in a sense not fully immutable. Your religion, for example, is something that you can choose to change, but most Americans don't think it's something you should have to change in order to get a job or in order to

keep a job. Some of the conclusions the judges reach in these cases seem unusual to me. To put it mildly, To tell us about the New Jersey Casino, there was a case brought by the cocktail waitresses at casino in New Jersey, who the casino deemed Borgata babes. They argued that the company was illegally regulating their weight, restricting the number of pounds they were allowed to gain, and the judge ruled that in fact, the company legally was entitled

to regulate its employees weight. He wrote that if you are gaining a lot of pounds, your body is telling you something. And he also wrote that the plaintiffs can't shed the label of babe because it was something that they embraced by going to work for the Borgata in the first place. This judge, by the way, is also the author of the book Boardwalk Empire. How is the US catching up with science as far as weight is concerned.

You know, there are a lot of websites and a lot of women talking about how weight shouldn't be a consideration, But how is the US catching up with the science? Research suggests that our bodies really are more a product of our genes and our environment then of our willpower, and that when people's weight goes down a lot, that tends to be temporary, and having your weight drastically decrease and increase repeatedly itself is a risk factor for dangerous

health conditions over time. In recent years, we've seen the growth of a health at Every size movement promoting nutrition and exercise that's been gaining ground among nutritionists and doctors and patients. We've seen a whole new conversation on social media about that shaming and shifting the blame away from individuals for their weight and towards companies and brands for not serving larger people and for contributing to stigma against

larger people. We've seen media outlets pivot, in the case of magazine, for example, from promoting diets from a cottage cheese diet to a Chinese diet to now profiling intuitive eating eating what you're actually hungry for when you're actually hungry for it. And we've seen legislative efforts to change the law to write protections for overweight or obese people into the law. Yeah, I have to say that I have been on some of those crazy diets. So let's

talk about the laws. As you point out, more than half of the states have laws protecting people who smoke cigarettes on their own time, yet only one has a law banning discrimination based on weight and a few cities. How do those laws make a difference in the state or the city, and as far as lawsuits that are brought there. The bigger picture here is that most people in the US are operating under what's called at unemployment, which means your boss can fire you for almost any

reason or with no reason at all. There are specific exceptions to that fiat that managers have in the US, like the protections in civil rights laws or in labor law letting people organized collectively with at least in theory, some protection against getting fired. And in the state of Michigan and some cities there are protections that include a

ban on discrimination based on people's way. In Michigan, we've seen a lawsuit brought by a former manager for Coach who said the company, when she was petite, promoted her, and then once she wasn't fired her and in between pressured her to take weight loss hormones and to get bariatric surgery, and even asked in a performance evaluation what had happened to the version of her that the eight lean cuisines every day. That lawsuit was settled on undisclosed terms.

We've seen in San Francisco a settlement with jazz Er Size where the company said it would no longer require that its stance fitness teachers look leaner than the public, and the company Jazzer Size, in that case said that studies had shown that it might indeed be possible for

people of varying weights to be fit. There was also a study in two sixteen which found that the efficacy of these protections varies seemingly in part based on how strongly enforcement mechanisms are, but that some of them, like in Madison, Wisconsin and in Urbana, Illinois, had significantly improved the labor market outcomes for people with obesity. It is extremely difficult. As we've seen in the history of our country, it's extremely difficult to expand civil rights protections. What is

going on now that might change that. As far as weight discrimination, there is a confluence of events that make advocates believe they have the best chance in decades now to vastly expand the number of Americans who have protection against weight discrimination. The science has advanced, the conversation on social media has shifted. Other civil rights advances have emboldened and inspired people. In New York, for example, there have been laws passed in recent years protecting people based on

gender identity and based on hairstyle, such as afros. We saw this watershed Supreme Court ruling interpreting the sex discrimination clause in the Civil Rights Act of nineteen sixty four to also protect LGBTQ people on the grounds that anti gay or anti trans bias is inherently a form of

sex discrimination. The confluence of those events has given new life to efforts at the state level to add weight as well as height, to existing discrimination laws, and in New York, a new effort is being mounted by prominent lawmakers and a retail union. In Massachusetts, a bill that has been introduced in different versions for a couple of decades, now has passed the Judiciary Committee, and the effort to prohibit weight discrimination has now been endorsed by the state's

attorney generals. Is the likely next governor of Massachusetts. I didn't realize this. In Massachusetts, it's been a decades long push to try to ban weight bias. Yes, that's right. The lawmaker who had been introducing this r and over retired and passed the baton on two newer senator who says she herself has witnessed weight discrimination in areas of her life, from being an attorney, to being a dancer

to being a parent. In two thousand seven, management side attorneys criticized a version of the Massachusetts law, thing that it was wrong to treat weight as something immutable that is comparable to a category like race, and arguing that the law is unnecessary. But recently there has not been much vocal opposition from business groups to these pushes for new workplace protections around weight. Do you think that's because attitudes are changing toward weight, and you know, you talk

about Katie Stino and what she's been doing. Business lobbies argue that the members already opposed and avoid discrimination. Advocates for these weight protections say companies would bring down shame on themselves if they were vocally advocating for maintaining their

legal right to discriminate based on weight. I talked to a leader of the Michigan Chamber of Commerce who said they don't necessarily think everyone should add this protection to their law, but that in Michigan they don't hear much complaint about it, and that once the laws on the book, so you figure out a way to live with it,

and they have done that there in Michigan. I talked to Katie Sterno, consultant and writer and content creator who now has six thousand followers on Instagram, where she posts things like images of herself remaking celebrities outfits to fit her and images of herself on the video trying to fit into the largest sizes but some brands provide to

show that they're not large enough. She now is working with Amazon to develop a clothing line include including size for X and five X clothing that goes on sale this month. Josh, I'm wondering, though, despite the laws that are on the books, whether there's still going to be internal bias that you can't really prove like a thin person getting a promotion over a heavier person. I just

wonder if that kind of bias is just here to stay. Well, balls against discrimination don't eradicate all discrimination, and not everyone who is discriminated against succeeds in proving it in court. And there are all sorts of obstacles in the US, including for st arbitration clauses for example, at prevent people who have been discriminated against from vindicating their rights under the law. But that said law in social norms influenced

each other. So the shift in the culture away from digmatizing people for their weight is increasing the possibility of passing legal protections. In turn, passing new legal protections has a social impact as well. One of the lawmakers I spoke to referred to it as the educational function of the law, and people do look at the law as representing something about what's okay in our society or not.

Thanks Josh, that's Josh Idolson of Bloomberg Business Week. The mayor of New York City did it, and many other people want to do the same. Get their pay in bitcoin. Joining me is Paige Smith, Bloomberg Law reporter you're hearing that more employees are asking to be paid in bitcoin. Yes, so there are a number of employees and workers in

a cross industries. To be honest with you, that we're sort of looking to a number of different cryptocurrencies, not just Bitcoin, to essentially ask for their paychecks in those cryptocurrencies. And there are are also some companies that are sort of stepping in to help them achieve that because there are some legal limitations to what you can and can't do when it comes to getting your paycheck in crypto.

So is it in particular people in the tech industry or all over So I spoke with some attorneys who have fielded a number of questions from clients on this. They've said that it's mostly companies in the text space that want to give that opportunity to workers who are maybe more familiar with cryptocurrencies and sort of through everyday

journalists for example. And I know there are a number of journalists covering cryptocurrencies, but I think that a lot of my friends don't necessarily know the legalities of getting your paycheck in crypto. So there are a number of folks across industries asking for their paychecks and cryptocurrency. Some high profile examples have been you know, the New York City mayor Eric Adams, he sort of asked for his paycheck in cryptocurrency to push the city to be more

crypto friendly. Um, and there's been some other folks like the Miami mayor and even athletes like Aaron Rodgers have at least partially looked into the idea of getting their paychecks in crypto. So what about the legalities? Is it legal? That's a good question. As it stands right now, all wages are dictated by the Fair Labor Standard deck that's a statute that was signed into law in night and it basically clarifies how you, as a worker can receive

your wages. So as it stands, currently workers must be paid in American currency, so legally, the payment of wages in crypto is not recognized at this time. You have to get your paycheck in cash or what is called a negotiable instrument payable at part like a check. But as that being said, there are some ways that you know, workers can essentially convert their paychecks into crypto, and there are companies that are stepping in to help them do that.

So companies like payroll service providers who will essentially help you as a worker, convert your paycheck into crypto. If it isn't strictly legal, how do you account for the fact that, as you said, the mayor of New York City got paid in bitcoin. So it doesn't prevent you as a worker from you know, converting your wages into whatever you would like to convert them into. So, for example, you can still convert your wages into cryptocurrencies after the fact.

But I spoke with the CEO of a payroll service provider that essentially explained this to me that you know, you're still basically being paid in your local currency, but it's you're then converting the net amount you're entitled to in crypto. So it's sort of a two step process, if you will. So you could just as easily buy crypto with the sellary you make. That's essentially the process. So tell us about this company that will transfer your

wages to crypto. So there are a number of payroll service providers at this time that are, um, you know, helping companies offer this service to their workers. So it's sort of a benefit if you will. You know, I spoke with one ceo the CEO and still founder of a company called Papaya Global, who sort of explained to me how it would work, which is, you know, you're essentially paid in your local currency and then they convert

the net amount into the cryptocurrency. But that way, your employer is still responsible for any sort of required taxes. And you know, the CEO said, it's not as if they're helping companies or employees pay less in taxes. It's just that they're providing this conversion service, if you will, so the company pays the employee regularly and stays out

of this secondary transaction. So I spoke with some attorneys who said that legally it would be best to in order to mitigate litigation risk, to sort of stay away from that secondary transfer or that that sort of conversion process. Basically, it would kind of give them a buffer, if you will, because it would just mitigate gage related litigation risk. Are there tax issues with getting cryptocurrency? Well, I think there are a number of different risks when you, as an

employee opt to you know, opt to investigate. There's are up to investigate this this option. Um. I mean, volatility is certainly a glaring concern. You know, the value of cryptocurrencies can fluctuate very dramatically, and you know, attorneys also did say that you know employers are offering this for their workers, they should you be very clear that there

are tax concerns that workers should umplore. I mean capital gains taxes kicked in any time a worker solves or buys another cryptocurrency, So that is definitely a cost for both companies and employees to consider. Thanks so much, Paige. That's Paige Smith, Bloomberg Law Reporter for Labor and Employment. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on

our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg