Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: Try these fabulous new fruit flavors from Ultra Slim's ass,
Speaker 1: but we will dread out fading sup short starts. Thank
Speaker 1: you l A last I have reread every day. That's
Speaker 1: the genius of this program. I lost twenty six pounds
Speaker 1: and I have eaten bread every single day. We've all
Speaker 1: seen the many commercials aimed at the millions of Americans
Speaker 1: trying to lose weight. With good reason. People who are
Speaker 1: fat faced bias in every corner of their lives. In
Speaker 1: one survey, respondents rated people who looked overweight as lazier,
Speaker 1: weaker willed, and less likely to win on Jeopardy. And
Speaker 1: being overweight can even cost you your job Joining me
Speaker 1: is Bloomberg Business Week reporter josh Idolson. Josh found that
Speaker 1: people who are overweight are hired less, promoted less, and
Speaker 1: paid less. One study suggests that gaining one point of
Speaker 1: body mass index, which is just six pounds for an
Speaker 1: average American woman, causes a woman's hourly pay to drop
Speaker 1: by two. This exemplifies how systemic weight discrimination is in
Speaker 1: US society and in the US workplace, where having more
Speaker 1: weight can mean not being hired, not being promoted, not
Speaker 1: being retained, or being fired, as well as being paid
Speaker 1: less money and being put in less desirable positions, and
Speaker 1: companies get away with this treatment of overweight employees. Something
Speaker 1: many people don't realize is that discrimination based on weight
Speaker 1: is legal in almost all of the country. There's only
Speaker 1: one US state, Michigan, which has banned discrimination based on weight.
Speaker 1: There are a hands full of cities that have done it.
Speaker 1: Federal law covers categories like religion and race and veteran status,
Speaker 1: but not explicitly your weight. There are cases where people
Speaker 1: with obesity have challenged alleged discrimination based on their weight
Speaker 1: under the Americans with Disabilities Act. That ad A prohibits
Speaker 1: discrimination based on physical impairments that interfere with major life activities,
Speaker 1: but courts in general have been pretty hesitant about finding
Speaker 1: weight to be something that is covered as a disability
Speaker 1: under the ADA, even in cases where we're talking about
Speaker 1: more serious obesity. Federal judges have written that considering obesity
Speaker 1: to be a disability could create a slippery slope that
Speaker 1: would even include protecting grossly short people. That's one of
Speaker 1: several cases in which federal judges have bulked at the
Speaker 1: idea that someone's obesity inherently is a protect the disability,
Speaker 1: and so judges have asked questions about whether there's a
Speaker 1: physiological cause to the person's obesity or not. As one
Speaker 1: law professor put it to me, these cases can seem
Speaker 1: pretty judge e on the judge's part, and one of
Speaker 1: the authors of the Americans with Disabilities Act argued to
Speaker 1: me that these distinctions are not really in the text
Speaker 1: of the law, that the law itself does not ask
Speaker 1: what's the origin of someone's disability? Is it in their
Speaker 1: genes or is it in a choice that they made.
Speaker 1: But there has been a sense in many of the
Speaker 1: cases from the judges that it just can't be that
Speaker 1: obesity itself automatically is legally protected. Some judges have been
Speaker 1: concerned with this concept called immutability, that is, whether the
Speaker 1: trait that's subject to discrimination is one a person can't change.
Speaker 1: This is a tricky issue, in part because a lot
Speaker 1: of Americans think of weight as not out of someone's control,
Speaker 1: as something that is a consequence of people's choices, a
Speaker 1: consequence of their willpower. But the mutability of weight really
Speaker 1: is overstated. If you look at the science on this,
Speaker 1: and in fact, the weight of a mutability is overstated too.
Speaker 1: Many of the categories that are protected under discrimination law
Speaker 1: are in a sense not fully immutable. Your religion, for example,
Speaker 1: is something that you can choose to change, but most
Speaker 1: Americans don't think it's something you should have to change
Speaker 1: in order to get a job or in order to
Speaker 1: keep a job. Some of the conclusions the judges reach
Speaker 1: in these cases seem unusual to me. To put it mildly,
Speaker 1: To tell us about the New Jersey Casino, there was
Speaker 1: a case brought by the cocktail waitresses at casino in
Speaker 1: New Jersey, who the casino deemed Borgata babes. They argued
Speaker 1: that the company was illegally regulating their weight, restricting the
Speaker 1: number of pounds they were allowed to gain, and the
Speaker 1: judge ruled that in fact, the company legally was entitled
Speaker 1: to regulate its employees weight. He wrote that if you
Speaker 1: are gaining a lot of pounds, your body is telling
Speaker 1: you something. And he also wrote that the plaintiffs can't
Speaker 1: shed the label of babe because it was something that
Speaker 1: they embraced by going to work for the Borgata in
Speaker 1: the first place. This judge, by the way, is also
Speaker 1: the author of the book Boardwalk Empire. How is the
Speaker 1: US catching up with science as far as weight is concerned.
Speaker 1: You know, there are a lot of websites and a
Speaker 1: lot of women talking about how weight shouldn't be a consideration,
Speaker 1: But how is the US catching up with the science?
Speaker 1: Research suggests that our bodies really are more a product
Speaker 1: of our genes and our environment then of our willpower,
Speaker 1: and that when people's weight goes down a lot, that
Speaker 1: tends to be temporary, and having your weight drastically decrease
Speaker 1: and increase repeatedly itself is a risk factor for dangerous
Speaker 1: health conditions over time. In recent years, we've seen the
Speaker 1: growth of a health at Every size movement promoting nutrition
Speaker 1: and exercise that's been gaining ground among nutritionists and doctors
Speaker 1: and patients. We've seen a whole new conversation on social
Speaker 1: media about that shaming and shifting the blame away from
Speaker 1: individuals for their weight and towards companies and brands for
Speaker 1: not serving larger people and for contributing to stigma against
Speaker 1: larger people. We've seen media outlets pivot, in the case
Speaker 1: of magazine, for example, from promoting diets from a cottage
Speaker 1: cheese diet to a Chinese diet to now profiling intuitive
Speaker 1: eating eating what you're actually hungry for when you're actually
Speaker 1: hungry for it. And we've seen legislative efforts to change
Speaker 1: the law to write protections for overweight or obese people
Speaker 1: into the law. Yeah, I have to say that I
Speaker 1: have been on some of those crazy diets. So let's
Speaker 1: talk about the laws. As you point out, more than
Speaker 1: half of the states have laws protecting people who smoke
Speaker 1: cigarettes on their own time, yet only one has a
Speaker 1: law banning discrimination based on weight and a few cities.
Speaker 1: How do those laws make a difference in the state
Speaker 1: or the city, and as far as lawsuits that are
Speaker 1: brought there. The bigger picture here is that most people
Speaker 1: in the US are operating under what's called at unemployment,
Speaker 1: which means your boss can fire you for almost any
Speaker 1: reason or with no reason at all. There are specific
Speaker 1: exceptions to that fiat that managers have in the US,
Speaker 1: like the protections in civil rights laws or in labor
Speaker 1: law letting people organized collectively with at least in theory,
Speaker 1: some protection against getting fired. And in the state of
Speaker 1: Michigan and some cities there are protections that include a
Speaker 1: ban on discrimination based on people's way. In Michigan, we've
Speaker 1: seen a lawsuit brought by a former manager for Coach
Speaker 1: who said the company, when she was petite, promoted her,
Speaker 1: and then once she wasn't fired her and in between
Speaker 1: pressured her to take weight loss hormones and to get
Speaker 1: bariatric surgery, and even asked in a performance evaluation what
Speaker 1: had happened to the version of her that the eight
Speaker 1: lean cuisines every day. That lawsuit was settled on undisclosed terms.
Speaker 1: We've seen in San Francisco a settlement with jazz Er
Speaker 1: Size where the company said it would no longer require
Speaker 1: that its stance fitness teachers look leaner than the public,
Speaker 1: and the company Jazzer Size, in that case said that
Speaker 1: studies had shown that it might indeed be possible for
Speaker 1: people of varying weights to be fit. There was also
Speaker 1: a study in two sixteen which found that the efficacy
Speaker 1: of these protections varies seemingly in part based on how
Speaker 1: strongly enforcement mechanisms are, but that some of them, like
Speaker 1: in Madison, Wisconsin and in Urbana, Illinois, had significantly improved
Speaker 1: the labor market outcomes for people with obesity. It is
Speaker 1: extremely difficult. As we've seen in the history of our country,
Speaker 1: it's extremely difficult to expand civil rights protections. What is
Speaker 1: going on now that might change that. As far as
Speaker 1: weight discrimination, there is a confluence of events that make
Speaker 1: advocates believe they have the best chance in decades now
Speaker 1: to vastly expand the number of Americans who have protection
Speaker 1: against weight discrimination. The science has advanced, the conversation on
Speaker 1: social media has shifted. Other civil rights advances have emboldened
Speaker 1: and inspired people. In New York, for example, there have
Speaker 1: been laws passed in recent years protecting people based on
Speaker 1: gender identity and based on hairstyle, such as afros. We
Speaker 1: saw this watershed Supreme Court ruling interpreting the sex discrimination
Speaker 1: clause in the Civil Rights Act of nineteen sixty four
Speaker 1: to also protect LGBTQ people on the grounds that anti
Speaker 1: gay or anti trans bias is inherently a form of
Speaker 1: sex discrimination. The confluence of those events has given new
Speaker 1: life to efforts at the state level to add weight
Speaker 1: as well as height, to existing discrimination laws, and in
Speaker 1: New York, a new effort is being mounted by prominent
Speaker 1: lawmakers and a retail union. In Massachusetts, a bill that
Speaker 1: has been introduced in different versions for a couple of decades,
Speaker 1: now has passed the Judiciary Committee, and the effort to
Speaker 1: prohibit weight discrimination has now been endorsed by the state's
Speaker 1: attorney generals. Is the likely next governor of Massachusetts. I
Speaker 1: didn't realize this. In Massachusetts, it's been a decades long
Speaker 1: push to try to ban weight bias. Yes, that's right.
Speaker 1: The lawmaker who had been introducing this r and over
Speaker 1: retired and passed the baton on two newer senator who
Speaker 1: says she herself has witnessed weight discrimination in areas of
Speaker 1: her life, from being an attorney, to being a dancer
Speaker 1: to being a parent. In two thousand seven, management side
Speaker 1: attorneys criticized a version of the Massachusetts law, thing that
Speaker 1: it was wrong to treat weight as something immutable that
Speaker 1: is comparable to a category like race, and arguing that
Speaker 1: the law is unnecessary. But recently there has not been
Speaker 1: much vocal opposition from business groups to these pushes for
Speaker 1: new workplace protections around weight. Do you think that's because
Speaker 1: attitudes are changing toward weight, and you know, you talk
Speaker 1: about Katie Stino and what she's been doing. Business lobbies
Speaker 1: argue that the members already opposed and avoid discrimination. Advocates
Speaker 1: for these weight protections say companies would bring down shame
Speaker 1: on themselves if they were vocally advocating for maintaining their
Speaker 1: legal right to discriminate based on weight. I talked to
Speaker 1: a leader of the Michigan Chamber of Commerce who said
Speaker 1: they don't necessarily think everyone should add this protection to
Speaker 1: their law, but that in Michigan they don't hear much
Speaker 1: complaint about it, and that once the laws on the book,
Speaker 1: so you figure out a way to live with it,
Speaker 1: and they have done that there in Michigan. I talked
Speaker 1: to Katie Sterno, consultant and writer and content creator who
Speaker 1: now has six thousand followers on Instagram, where she posts
Speaker 1: things like images of herself remaking celebrities outfits to fit
Speaker 1: her and images of herself on the video trying to
Speaker 1: fit into the largest sizes but some brands provide to
Speaker 1: show that they're not large enough. She now is working
Speaker 1: with Amazon to develop a clothing line include including size
Speaker 1: for X and five X clothing that goes on sale
Speaker 1: this month. Josh, I'm wondering, though, despite the laws that
Speaker 1: are on the books, whether there's still going to be
Speaker 1: internal bias that you can't really prove like a thin
Speaker 1: person getting a promotion over a heavier person. I just
Speaker 1: wonder if that kind of bias is just here to stay. Well,
Speaker 1: balls against discrimination don't eradicate all discrimination, and not everyone
Speaker 1: who is discriminated against succeeds in proving it in court.
Speaker 1: And there are all sorts of obstacles in the US,
Speaker 1: including for st arbitration clauses for example, at prevent people
Speaker 1: who have been discriminated against from vindicating their rights under
Speaker 1: the law. But that said law in social norms influenced
Speaker 1: each other. So the shift in the culture away from
Speaker 1: digmatizing people for their weight is increasing the possibility of
Speaker 1: passing legal protections. In turn, passing new legal protections has
Speaker 1: a social impact as well. One of the lawmakers I
Speaker 1: spoke to referred to it as the educational function of
Speaker 1: the law, and people do look at the law as
Speaker 1: representing something about what's okay in our society or not.
Speaker 1: Thanks Josh, that's Josh Idolson of Bloomberg Business Week. The
Speaker 1: mayor of New York City did it, and many other
Speaker 1: people want to do the same. Get their pay in bitcoin.
Speaker 1: Joining me is Paige Smith, Bloomberg Law reporter you're hearing
Speaker 1: that more employees are asking to be paid in bitcoin. Yes,
Speaker 1: so there are a number of employees and workers in
Speaker 1: a cross industries. To be honest with you, that we're
Speaker 1: sort of looking to a number of different cryptocurrencies, not
Speaker 1: just Bitcoin, to essentially ask for their paychecks in those cryptocurrencies.
Speaker 1: And there are are also some companies that are sort
Speaker 1: of stepping in to help them achieve that because there
Speaker 1: are some legal limitations to what you can and can't
Speaker 1: do when it comes to getting your paycheck in crypto.
Speaker 1: So is it in particular people in the tech industry
Speaker 1: or all over So I spoke with some attorneys who
Speaker 1: have fielded a number of questions from clients on this.
Speaker 1: They've said that it's mostly companies in the text space
Speaker 1: that want to give that opportunity to workers who are
Speaker 1: maybe more familiar with cryptocurrencies and sort of through everyday
Speaker 1: journalists for example. And I know there are a number
Speaker 1: of journalists covering cryptocurrencies, but I think that a lot
Speaker 1: of my friends don't necessarily know the legalities of getting
Speaker 1: your paycheck in crypto. So there are a number of
Speaker 1: folks across industries asking for their paychecks and cryptocurrency. Some
Speaker 1: high profile examples have been you know, the New York
Speaker 1: City mayor Eric Adams, he sort of asked for his
Speaker 1: paycheck in cryptocurrency to push the city to be more
Speaker 1: crypto friendly. Um, and there's been some other folks like
Speaker 1: the Miami mayor and even athletes like Aaron Rodgers have
Speaker 1: at least partially looked into the idea of getting their
Speaker 1: paychecks in crypto. So what about the legalities? Is it legal?
Speaker 1: That's a good question. As it stands right now, all
Speaker 1: wages are dictated by the Fair Labor Standard deck that's
Speaker 1: a statute that was signed into law in night and
Speaker 1: it basically clarifies how you, as a worker can receive
Speaker 1: your wages. So as it stands, currently workers must be
Speaker 1: paid in American currency, so legally, the payment of wages
Speaker 1: in crypto is not recognized at this time. You have
Speaker 1: to get your paycheck in cash or what is called
Speaker 1: a negotiable instrument payable at part like a check. But
Speaker 1: as that being said, there are some ways that you know,
Speaker 1: workers can essentially convert their paychecks into crypto, and there
Speaker 1: are companies that are stepping in to help them do that.
Speaker 1: So companies like payroll service providers who will essentially help
Speaker 1: you as a worker, convert your paycheck into crypto. If
Speaker 1: it isn't strictly legal, how do you account for the
Speaker 1: fact that, as you said, the mayor of New York
Speaker 1: City got paid in bitcoin. So it doesn't prevent you
Speaker 1: as a worker from you know, converting your wages into
Speaker 1: whatever you would like to convert them into. So, for example,
Speaker 1: you can still convert your wages into cryptocurrencies after the fact.
Speaker 1: But I spoke with the CEO of a payroll service
Speaker 1: provider that essentially explained this to me that you know,
Speaker 1: you're still basically being paid in your local currency, but
Speaker 1: it's you're then converting the net amount you're entitled to
Speaker 1: in crypto. So it's sort of a two step process,
Speaker 1: if you will. So you could just as easily buy
Speaker 1: crypto with the sellary you make. That's essentially the process.
Speaker 1: So tell us about this company that will transfer your
Speaker 1: wages to crypto. So there are a number of payroll
Speaker 1: service providers at this time that are, um, you know,
Speaker 1: helping companies offer this service to their workers. So it's
Speaker 1: sort of a benefit if you will. You know, I
Speaker 1: spoke with one ceo the CEO and still founder of
Speaker 1: a company called Papaya Global, who sort of explained to
Speaker 1: me how it would work, which is, you know, you're
Speaker 1: essentially paid in your local currency and then they convert
Speaker 1: the net amount into the cryptocurrency. But that way, your
Speaker 1: employer is still responsible for any sort of required taxes.
Speaker 1: And you know, the CEO said, it's not as if
Speaker 1: they're helping companies or employees pay less in taxes. It's
Speaker 1: just that they're providing this conversion service, if you will,
Speaker 1: so the company pays the employee regularly and stays out
Speaker 1: of this secondary transaction. So I spoke with some attorneys
Speaker 1: who said that legally it would be best to in
Speaker 1: order to mitigate litigation risk, to sort of stay away
Speaker 1: from that secondary transfer or that that sort of conversion process. Basically,
Speaker 1: it would kind of give them a buffer, if you will,
Speaker 1: because it would just mitigate gage related litigation risk. Are
Speaker 1: there tax issues with getting cryptocurrency? Well, I think there
Speaker 1: are a number of different risks when you, as an
Speaker 1: employee opt to you know, opt to investigate. There's are
Speaker 1: up to investigate this this option. Um. I mean, volatility
Speaker 1: is certainly a glaring concern. You know, the value of
Speaker 1: cryptocurrencies can fluctuate very dramatically, and you know, attorneys also
Speaker 1: did say that you know employers are offering this for
Speaker 1: their workers, they should you be very clear that there
Speaker 1: are tax concerns that workers should umplore. I mean capital
Speaker 1: gains taxes kicked in any time a worker solves or
Speaker 1: buys another cryptocurrency, So that is definitely a cost for
Speaker 1: both companies and employees to consider. Thanks so much, Paige.
Speaker 1: That's Paige Smith, Bloomberg Law Reporter for Labor and Employment.
Speaker 1: And that's it for this edition of the Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news on
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Speaker 1: week night at ten pm Wall Street Time. I'm June
Speaker 1: Grosso and you're listening to Bloomberg