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Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.

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Speaker 1: Try these fabulous new fruit flavors from Ultra Slim's ass,

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Speaker 1: but we will dread out fading sup short starts. Thank

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Speaker 1: you l A last I have reread every day. That's

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Speaker 1: the genius of this program. I lost twenty six pounds

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Speaker 1: and I have eaten bread every single day. We've all

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Speaker 1: seen the many commercials aimed at the millions of Americans

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Speaker 1: trying to lose weight. With good reason. People who are

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Speaker 1: fat faced bias in every corner of their lives. In

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Speaker 1: one survey, respondents rated people who looked overweight as lazier,

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Speaker 1: weaker willed, and less likely to win on Jeopardy. And

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Speaker 1: being overweight can even cost you your job Joining me

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Speaker 1: is Bloomberg Business Week reporter josh Idolson. Josh found that

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Speaker 1: people who are overweight are hired less, promoted less, and

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Speaker 1: paid less. One study suggests that gaining one point of

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Speaker 1: body mass index, which is just six pounds for an

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Speaker 1: average American woman, causes a woman's hourly pay to drop

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Speaker 1: by two. This exemplifies how systemic weight discrimination is in

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Speaker 1: US society and in the US workplace, where having more

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Speaker 1: weight can mean not being hired, not being promoted, not

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Speaker 1: being retained, or being fired, as well as being paid

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Speaker 1: less money and being put in less desirable positions, and

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Speaker 1: companies get away with this treatment of overweight employees. Something

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Speaker 1: many people don't realize is that discrimination based on weight

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Speaker 1: is legal in almost all of the country. There's only

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Speaker 1: one US state, Michigan, which has banned discrimination based on weight.

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Speaker 1: There are a hands full of cities that have done it.

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Speaker 1: Federal law covers categories like religion and race and veteran status,

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Speaker 1: but not explicitly your weight. There are cases where people

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Speaker 1: with obesity have challenged alleged discrimination based on their weight

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Speaker 1: under the Americans with Disabilities Act. That ad A prohibits

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Speaker 1: discrimination based on physical impairments that interfere with major life activities,

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Speaker 1: but courts in general have been pretty hesitant about finding

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Speaker 1: weight to be something that is covered as a disability

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Speaker 1: under the ADA, even in cases where we're talking about

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Speaker 1: more serious obesity. Federal judges have written that considering obesity

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Speaker 1: to be a disability could create a slippery slope that

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Speaker 1: would even include protecting grossly short people. That's one of

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Speaker 1: several cases in which federal judges have bulked at the

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Speaker 1: idea that someone's obesity inherently is a protect the disability,

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Speaker 1: and so judges have asked questions about whether there's a

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Speaker 1: physiological cause to the person's obesity or not. As one

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Speaker 1: law professor put it to me, these cases can seem

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Speaker 1: pretty judge e on the judge's part, and one of

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Speaker 1: the authors of the Americans with Disabilities Act argued to

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Speaker 1: me that these distinctions are not really in the text

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Speaker 1: of the law, that the law itself does not ask

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Speaker 1: what's the origin of someone's disability? Is it in their

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Speaker 1: genes or is it in a choice that they made.

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Speaker 1: But there has been a sense in many of the

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Speaker 1: cases from the judges that it just can't be that

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Speaker 1: obesity itself automatically is legally protected. Some judges have been

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Speaker 1: concerned with this concept called immutability, that is, whether the

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Speaker 1: trait that's subject to discrimination is one a person can't change.

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Speaker 1: This is a tricky issue, in part because a lot

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Speaker 1: of Americans think of weight as not out of someone's control,

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Speaker 1: as something that is a consequence of people's choices, a

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Speaker 1: consequence of their willpower. But the mutability of weight really

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Speaker 1: is overstated. If you look at the science on this,

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Speaker 1: and in fact, the weight of a mutability is overstated too.

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Speaker 1: Many of the categories that are protected under discrimination law

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Speaker 1: are in a sense not fully immutable. Your religion, for example,

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Speaker 1: is something that you can choose to change, but most

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Speaker 1: Americans don't think it's something you should have to change

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Speaker 1: in order to get a job or in order to

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Speaker 1: keep a job. Some of the conclusions the judges reach

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Speaker 1: in these cases seem unusual to me. To put it mildly,

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Speaker 1: To tell us about the New Jersey Casino, there was

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Speaker 1: a case brought by the cocktail waitresses at casino in

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Speaker 1: New Jersey, who the casino deemed Borgata babes. They argued

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Speaker 1: that the company was illegally regulating their weight, restricting the

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Speaker 1: number of pounds they were allowed to gain, and the

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Speaker 1: judge ruled that in fact, the company legally was entitled

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Speaker 1: to regulate its employees weight. He wrote that if you

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Speaker 1: are gaining a lot of pounds, your body is telling

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Speaker 1: you something. And he also wrote that the plaintiffs can't

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Speaker 1: shed the label of babe because it was something that

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Speaker 1: they embraced by going to work for the Borgata in

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Speaker 1: the first place. This judge, by the way, is also

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Speaker 1: the author of the book Boardwalk Empire. How is the

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Speaker 1: US catching up with science as far as weight is concerned.

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Speaker 1: You know, there are a lot of websites and a

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Speaker 1: lot of women talking about how weight shouldn't be a consideration,

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Speaker 1: But how is the US catching up with the science?

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Speaker 1: Research suggests that our bodies really are more a product

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Speaker 1: of our genes and our environment then of our willpower,

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Speaker 1: and that when people's weight goes down a lot, that

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Speaker 1: tends to be temporary, and having your weight drastically decrease

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Speaker 1: and increase repeatedly itself is a risk factor for dangerous

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Speaker 1: health conditions over time. In recent years, we've seen the

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Speaker 1: growth of a health at Every size movement promoting nutrition

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Speaker 1: and exercise that's been gaining ground among nutritionists and doctors

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Speaker 1: and patients. We've seen a whole new conversation on social

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Speaker 1: media about that shaming and shifting the blame away from

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Speaker 1: individuals for their weight and towards companies and brands for

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Speaker 1: not serving larger people and for contributing to stigma against

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Speaker 1: larger people. We've seen media outlets pivot, in the case

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Speaker 1: of magazine, for example, from promoting diets from a cottage

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Speaker 1: cheese diet to a Chinese diet to now profiling intuitive

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Speaker 1: eating eating what you're actually hungry for when you're actually

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Speaker 1: hungry for it. And we've seen legislative efforts to change

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Speaker 1: the law to write protections for overweight or obese people

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Speaker 1: into the law. Yeah, I have to say that I

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Speaker 1: have been on some of those crazy diets. So let's

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Speaker 1: talk about the laws. As you point out, more than

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Speaker 1: half of the states have laws protecting people who smoke

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Speaker 1: cigarettes on their own time, yet only one has a

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Speaker 1: law banning discrimination based on weight and a few cities.

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Speaker 1: How do those laws make a difference in the state

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Speaker 1: or the city, and as far as lawsuits that are

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Speaker 1: brought there. The bigger picture here is that most people

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Speaker 1: in the US are operating under what's called at unemployment,

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Speaker 1: which means your boss can fire you for almost any

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Speaker 1: reason or with no reason at all. There are specific

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Speaker 1: exceptions to that fiat that managers have in the US,

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Speaker 1: like the protections in civil rights laws or in labor

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Speaker 1: law letting people organized collectively with at least in theory,

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Speaker 1: some protection against getting fired. And in the state of

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Speaker 1: Michigan and some cities there are protections that include a

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Speaker 1: ban on discrimination based on people's way. In Michigan, we've

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Speaker 1: seen a lawsuit brought by a former manager for Coach

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Speaker 1: who said the company, when she was petite, promoted her,

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Speaker 1: and then once she wasn't fired her and in between

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Speaker 1: pressured her to take weight loss hormones and to get

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Speaker 1: bariatric surgery, and even asked in a performance evaluation what

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Speaker 1: had happened to the version of her that the eight

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Speaker 1: lean cuisines every day. That lawsuit was settled on undisclosed terms.

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Speaker 1: We've seen in San Francisco a settlement with jazz Er

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Speaker 1: Size where the company said it would no longer require

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Speaker 1: that its stance fitness teachers look leaner than the public,

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Speaker 1: and the company Jazzer Size, in that case said that

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Speaker 1: studies had shown that it might indeed be possible for

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Speaker 1: people of varying weights to be fit. There was also

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Speaker 1: a study in two sixteen which found that the efficacy

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Speaker 1: of these protections varies seemingly in part based on how

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Speaker 1: strongly enforcement mechanisms are, but that some of them, like

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Speaker 1: in Madison, Wisconsin and in Urbana, Illinois, had significantly improved

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Speaker 1: the labor market outcomes for people with obesity. It is

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Speaker 1: extremely difficult. As we've seen in the history of our country,

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Speaker 1: it's extremely difficult to expand civil rights protections. What is

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Speaker 1: going on now that might change that. As far as

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Speaker 1: weight discrimination, there is a confluence of events that make

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Speaker 1: advocates believe they have the best chance in decades now

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Speaker 1: to vastly expand the number of Americans who have protection

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Speaker 1: against weight discrimination. The science has advanced, the conversation on

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Speaker 1: social media has shifted. Other civil rights advances have emboldened

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Speaker 1: and inspired people. In New York, for example, there have

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Speaker 1: been laws passed in recent years protecting people based on

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Speaker 1: gender identity and based on hairstyle, such as afros. We

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Speaker 1: saw this watershed Supreme Court ruling interpreting the sex discrimination

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Speaker 1: clause in the Civil Rights Act of nineteen sixty four

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Speaker 1: to also protect LGBTQ people on the grounds that anti

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Speaker 1: gay or anti trans bias is inherently a form of

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Speaker 1: sex discrimination. The confluence of those events has given new

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Speaker 1: life to efforts at the state level to add weight

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Speaker 1: as well as height, to existing discrimination laws, and in

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Speaker 1: New York, a new effort is being mounted by prominent

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Speaker 1: lawmakers and a retail union. In Massachusetts, a bill that

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Speaker 1: has been introduced in different versions for a couple of decades,

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Speaker 1: now has passed the Judiciary Committee, and the effort to

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Speaker 1: prohibit weight discrimination has now been endorsed by the state's

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Speaker 1: attorney generals. Is the likely next governor of Massachusetts. I

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Speaker 1: didn't realize this. In Massachusetts, it's been a decades long

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Speaker 1: push to try to ban weight bias. Yes, that's right.

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Speaker 1: The lawmaker who had been introducing this r and over

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Speaker 1: retired and passed the baton on two newer senator who

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Speaker 1: says she herself has witnessed weight discrimination in areas of

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Speaker 1: her life, from being an attorney, to being a dancer

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Speaker 1: to being a parent. In two thousand seven, management side

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Speaker 1: attorneys criticized a version of the Massachusetts law, thing that

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Speaker 1: it was wrong to treat weight as something immutable that

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Speaker 1: is comparable to a category like race, and arguing that

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Speaker 1: the law is unnecessary. But recently there has not been

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Speaker 1: much vocal opposition from business groups to these pushes for

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Speaker 1: new workplace protections around weight. Do you think that's because

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Speaker 1: attitudes are changing toward weight, and you know, you talk

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Speaker 1: about Katie Stino and what she's been doing. Business lobbies

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Speaker 1: argue that the members already opposed and avoid discrimination. Advocates

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Speaker 1: for these weight protections say companies would bring down shame

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Speaker 1: on themselves if they were vocally advocating for maintaining their

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Speaker 1: legal right to discriminate based on weight. I talked to

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Speaker 1: a leader of the Michigan Chamber of Commerce who said

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Speaker 1: they don't necessarily think everyone should add this protection to

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Speaker 1: their law, but that in Michigan they don't hear much

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Speaker 1: complaint about it, and that once the laws on the book,

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Speaker 1: so you figure out a way to live with it,

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Speaker 1: and they have done that there in Michigan. I talked

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Speaker 1: to Katie Sterno, consultant and writer and content creator who

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Speaker 1: now has six thousand followers on Instagram, where she posts

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Speaker 1: things like images of herself remaking celebrities outfits to fit

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Speaker 1: her and images of herself on the video trying to

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Speaker 1: fit into the largest sizes but some brands provide to

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Speaker 1: show that they're not large enough. She now is working

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Speaker 1: with Amazon to develop a clothing line include including size

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Speaker 1: for X and five X clothing that goes on sale

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Speaker 1: this month. Josh, I'm wondering, though, despite the laws that

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Speaker 1: are on the books, whether there's still going to be

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Speaker 1: internal bias that you can't really prove like a thin

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Speaker 1: person getting a promotion over a heavier person. I just

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Speaker 1: wonder if that kind of bias is just here to stay. Well,

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Speaker 1: balls against discrimination don't eradicate all discrimination, and not everyone

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Speaker 1: who is discriminated against succeeds in proving it in court.

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Speaker 1: And there are all sorts of obstacles in the US,

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Speaker 1: including for st arbitration clauses for example, at prevent people

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Speaker 1: who have been discriminated against from vindicating their rights under

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Speaker 1: the law. But that said law in social norms influenced

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Speaker 1: each other. So the shift in the culture away from

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Speaker 1: digmatizing people for their weight is increasing the possibility of

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Speaker 1: passing legal protections. In turn, passing new legal protections has

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Speaker 1: a social impact as well. One of the lawmakers I

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Speaker 1: spoke to referred to it as the educational function of

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Speaker 1: the law, and people do look at the law as

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Speaker 1: representing something about what's okay in our society or not.

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Speaker 1: Thanks Josh, that's Josh Idolson of Bloomberg Business Week. The

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Speaker 1: mayor of New York City did it, and many other

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Speaker 1: people want to do the same. Get their pay in bitcoin.

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Speaker 1: Joining me is Paige Smith, Bloomberg Law reporter you're hearing

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Speaker 1: that more employees are asking to be paid in bitcoin. Yes,

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Speaker 1: so there are a number of employees and workers in

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Speaker 1: a cross industries. To be honest with you, that we're

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Speaker 1: sort of looking to a number of different cryptocurrencies, not

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Speaker 1: just Bitcoin, to essentially ask for their paychecks in those cryptocurrencies.

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Speaker 1: And there are are also some companies that are sort

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Speaker 1: of stepping in to help them achieve that because there

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Speaker 1: are some legal limitations to what you can and can't

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Speaker 1: do when it comes to getting your paycheck in crypto.

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Speaker 1: So is it in particular people in the tech industry

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Speaker 1: or all over So I spoke with some attorneys who

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Speaker 1: have fielded a number of questions from clients on this.

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Speaker 1: They've said that it's mostly companies in the text space

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Speaker 1: that want to give that opportunity to workers who are

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Speaker 1: maybe more familiar with cryptocurrencies and sort of through everyday

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Speaker 1: journalists for example. And I know there are a number

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Speaker 1: of journalists covering cryptocurrencies, but I think that a lot

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Speaker 1: of my friends don't necessarily know the legalities of getting

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Speaker 1: your paycheck in crypto. So there are a number of

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Speaker 1: folks across industries asking for their paychecks and cryptocurrency. Some

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Speaker 1: high profile examples have been you know, the New York

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Speaker 1: City mayor Eric Adams, he sort of asked for his

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Speaker 1: paycheck in cryptocurrency to push the city to be more

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Speaker 1: crypto friendly. Um, and there's been some other folks like

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Speaker 1: the Miami mayor and even athletes like Aaron Rodgers have

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Speaker 1: at least partially looked into the idea of getting their

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Speaker 1: paychecks in crypto. So what about the legalities? Is it legal?

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Speaker 1: That's a good question. As it stands right now, all

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Speaker 1: wages are dictated by the Fair Labor Standard deck that's

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Speaker 1: a statute that was signed into law in night and

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Speaker 1: it basically clarifies how you, as a worker can receive

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Speaker 1: your wages. So as it stands, currently workers must be

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Speaker 1: paid in American currency, so legally, the payment of wages

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Speaker 1: in crypto is not recognized at this time. You have

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Speaker 1: to get your paycheck in cash or what is called

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Speaker 1: a negotiable instrument payable at part like a check. But

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Speaker 1: as that being said, there are some ways that you know,

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Speaker 1: workers can essentially convert their paychecks into crypto, and there

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Speaker 1: are companies that are stepping in to help them do that.

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Speaker 1: So companies like payroll service providers who will essentially help

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Speaker 1: you as a worker, convert your paycheck into crypto. If

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Speaker 1: it isn't strictly legal, how do you account for the

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Speaker 1: fact that, as you said, the mayor of New York

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Speaker 1: City got paid in bitcoin. So it doesn't prevent you

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Speaker 1: as a worker from you know, converting your wages into

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Speaker 1: whatever you would like to convert them into. So, for example,

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Speaker 1: you can still convert your wages into cryptocurrencies after the fact.

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Speaker 1: But I spoke with the CEO of a payroll service

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Speaker 1: provider that essentially explained this to me that you know,

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Speaker 1: you're still basically being paid in your local currency, but

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Speaker 1: it's you're then converting the net amount you're entitled to

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Speaker 1: in crypto. So it's sort of a two step process,

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Speaker 1: if you will. So you could just as easily buy

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Speaker 1: crypto with the sellary you make. That's essentially the process.

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Speaker 1: So tell us about this company that will transfer your

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Speaker 1: wages to crypto. So there are a number of payroll

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Speaker 1: service providers at this time that are, um, you know,

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Speaker 1: helping companies offer this service to their workers. So it's

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Speaker 1: sort of a benefit if you will. You know, I

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Speaker 1: spoke with one ceo the CEO and still founder of

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Speaker 1: a company called Papaya Global, who sort of explained to

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Speaker 1: me how it would work, which is, you know, you're

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Speaker 1: essentially paid in your local currency and then they convert

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Speaker 1: the net amount into the cryptocurrency. But that way, your

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Speaker 1: employer is still responsible for any sort of required taxes.

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Speaker 1: And you know, the CEO said, it's not as if

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Speaker 1: they're helping companies or employees pay less in taxes. It's

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Speaker 1: just that they're providing this conversion service, if you will,

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Speaker 1: so the company pays the employee regularly and stays out

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Speaker 1: of this secondary transaction. So I spoke with some attorneys

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Speaker 1: who said that legally it would be best to in

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Speaker 1: order to mitigate litigation risk, to sort of stay away

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Speaker 1: from that secondary transfer or that that sort of conversion process. Basically,

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Speaker 1: it would kind of give them a buffer, if you will,

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Speaker 1: because it would just mitigate gage related litigation risk. Are

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Speaker 1: there tax issues with getting cryptocurrency? Well, I think there

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Speaker 1: are a number of different risks when you, as an

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Speaker 1: employee opt to you know, opt to investigate. There's are

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Speaker 1: up to investigate this this option. Um. I mean, volatility

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Speaker 1: is certainly a glaring concern. You know, the value of

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Speaker 1: cryptocurrencies can fluctuate very dramatically, and you know, attorneys also

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Speaker 1: did say that you know employers are offering this for

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Speaker 1: their workers, they should you be very clear that there

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Speaker 1: are tax concerns that workers should umplore. I mean capital

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Speaker 1: gains taxes kicked in any time a worker solves or

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Speaker 1: buys another cryptocurrency, So that is definitely a cost for

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Speaker 1: both companies and employees to consider. Thanks so much, Paige.

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Speaker 1: That's Paige Smith, Bloomberg Law Reporter for Labor and Employment.

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Speaker 1: And that's it for this edition of the Bloomberg Law Show.

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Speaker 1: Remember you can always get the latest legal news on

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Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

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Speaker 1: and at www dot Bloomberg dot com, slash podcast Slash Law,

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Speaker 1: and remember to tune into The Bloomberg Law Show every

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Speaker 1: week night at ten pm Wall Street Time. I'm June

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Speaker 1: Grosso and you're listening to Bloomberg