In the Thick of It:

1. In the Thick of It: The Connection Between Weight And Gender Bias

2. Krista Millay, Th.D University of Arizona Director, Women’s Resource Center krista@email.arizona.edu • SevaPriya Barrier, M.Ed., JD University of Arizona Compliance Consultant and Sp. Advisor to the Dean of Students, Office of Institutional Equity sevapriya@email.arizona.edu

3. Overview of presentation: • Overview of pertinent discrimination law • Learn the basic elements of a discrimination claim • Examine the impact of overweight/obesity for women • Discuss approaches to recognize and address weight-based sex discrimination • Question and Answer Goals: • Gain familiarity with a discrimination analysis • Understand the intersection between weight bias and gender discrimination • Generate ideas of ways to recognize and address weight-based discrimination on your campus Introduction to Presentation

4. Title VII Title IX ADA(AA)/504 • Title VII • Prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin • Sexual Harassment (hostile, intimidating, or offensive) • Supplemented with legislation prohibiting pregnancy, age, disability and other discrimination • Provides model for civil rights/discrimination analysis Discrimination Law Overview

5. TitleIX“No person in the U.S. shall, on the basis of sex be excluded from participation in, or denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal aid.” Discrimination Law Overview

6. ADA(AA)/504 • 504 • Protects qualified individuals with disabilities • For the purposes of employment qualified individuals are persons who, with reasonable accommodation, can perform the essential functions of the job they have been hired to or applied to perform. • For the purposes of education qualified individuals with disabilities are persons who meet normal and essential eligibility requirements. • ADA(AA) • Prohibits, under certain circumstances, discrimination based on disability and affords similar protections to those found in the Civil Rights Act. • Disability is defined by the ADA as "a physical or mental impairment that substantially limits a major life activity.“ • Obesity seldom qualifies as a disability. Discrimination Law Overview Jane Korn, Too Fat, 17 Va. J. Soc. Pol’y & L. 209 (2010)

7. Basic Elements of A discrimiNAtion Claim • Disparate Treatment • Member of a protected class • Unfavorable treatment as a result of membership in that class, and • Damage, injury or loss as a result of the disparate treatment. • Disparate Impact • Practices may be considered discriminatory and illegal if they have a disproportionate adverse impact on members of a protected group and the practice lacks substantial legitimate justification. • Harassment • Harassment = unwelcome behavior based on a protected classification • Quid pro quo • Hostile environment • Conduct that is: • 1) Based on a protected classification , AND • 2) Unwelcome (not requested or invited, offensive or undesirable), AND • 3) Severe (serious) OR pervasive (repetitive/frequent) • Subjective and objective  U.S. Department of Justice, “Title IX Legal Manual” (2001) www.justice.gov/crt/cor/coord/ixlegal.php

8. Prevalence of Overweight in WOmen • Overweight/obesity/appearance • The Centers for Disease Control and Prevention (CDC) standards: • Overweight – BMI between 25.0 and 29.9 • Obesity – BMI greater or equal to 30.0 • Visual assessment • More than 60% of United States adults are overweight or obese • There is no significant gender difference in prevalence of obesity between men and women at any age • Adult men are slightly more likely to be overweight than adult women • Greater negativity associated with overweight women Kate Sablosky, Probative "Weight": Rethinking Evidentiary Standards in Title VII Sex Discrimination Cases, 30 N.Y.U. Rev. L. & Soc. Change 325 (2006). Centers for Disease Control and Prevention, National Health and Nutrition Examination Survey, “Prevalence of Obesity in the United States, 2009-2010” (http://www.cdc.gov/nchs/nhanes.htm)

9. Effect of Weight Bias on Women • Workplace • Studies show that overweight people are discriminated against in hiring, promotion, salary, insurance, and termination. • Women face more severe discrimination: • Men are often held to a medical weight standard and women to an aesthetic standard. • Men don’t experience a wage penalty until their weight exceeds 100 lbs over standard weight, women experience a penalty at much lower weights. • A recent study from the University of Florida found that women who weigh less than average earn more than those of average weight, women who weigh more than average earn less. The wage impact for men was the opposite – overweight men earn more than their underweight counterparts. Kate Sablosky, Probative "Weight": Rethinking Evidentiary Standards in Title VII Sex Discrimination Cases, 30 N.Y.U. Rev. L. & Soc. Change 325 (2006). Deborah L. Rhode, The Injustice of Appearance, 61 Stan. L. Rev. 1033 (2009). Rebecca Puhl and Kelly D. Brownell, Bias, Discrimination, and Obesity, Obesity Research Vol. 9 No. 12 788 (2001). Timothy Judge et al. Does it Pay to Be Smart, Attractive, or Confident (or All Three)?, J. of App. Psy. Vol. 94, No. 3 742 (2009).

10. Effect of Weight Bias on Women • Education • The National Education Association report on size discrimination found that for overweight students the school experience “is one of ongoing prejudice, unnoticed discrimination, and almost constant harassment.” • Obese female students are more likely than their non-obese counterparts to report self-rejection and suicidal ideation, to self-medicate through the use of drugs and alcohol, and to disengage academically through class failure and unauthorized absence. • Obese female students are less likely to enroll in college than their non-obese counterparts. Those who do enroll receive lower grades. • Obese female students are up to 50% less likely than their non-obese counterparts to enroll in college. • Obese female students who do enroll in college are less likely than obese males to receive a college degree. Nat’l Educ. Ass’nReport on Size Discrimination (1994). Robert Crosnoe, Gender Obesity, and Education, Soc. Of Educ., Vol. 80, No. 3 (2007). Timothy Judge et al, Does it Pay to Be Smart, Attractive, or Confident (or All Three)?, J. of App. Psy. Vol. 94, No. 3 742 (2009). Yan Yu, Educational Differences in Obesity in the United States: A Closer Look at Trends, Obesity, October 2011. Rebecca Puhl and Kelly D. Brownell, Bias, Discrimination , and Obesity, Obesity Research Vol. 9 No. 12 788 (2001).

11. Greater Educational Effect for WOMEN • Factors • Peer rejection • Negative stereotyping • Lower acceptance rates (admissions and aid packages) • Lower financial support from parents • Less engagement in University community activities • Intersection of race, gender and socio-economic factors Latner and Stunkard, Getting Worse: The Stigmatization of Obese Children, Obesity Research Vol. 11 No. 3, 452 (2003). Pamela Regan, Sexual Outcasts: The Perceived Impact of Body Weight and Gender on Sexuality, J. of App. Soc, Psy. Vol. 26, Iss. 20 1803 (1996).

12. Institutional Policies • Include size in accessibility planning • Allow students to receive accommodations • Promote “blind grading” in classrooms where possible • Proactive Approaches • Scrutinize images presented on campus • Thoughtful approaches through health promotions • Include positive images of women of various sizes on admissions materials • Encourage students to engage in anti-discrimination education • Support or start bystander intervention programs which specifically include appearance/weight • Disciplinary • Favor code language that broadly encompasses discrimination and harassment Approaches to Combat Weight based Gender Discrimination

13. Questions or Comments? Krista Millay krista@email. arizona.edu SevaPriya Barrier sevapriya@email. arizona.edu