WEBVTT - Yes, You Can Be Fired for Being Fat

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<v Speaker 1>This is Bloomberg Law with June Brussel from Bloomberg Radio.

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<v Speaker 1>Try these fabulous new fruit flavors from Ultra Slim's ass,

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<v Speaker 1>but we will dread out fading sup short starts. Thank

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<v Speaker 1>you l A last I have reread every day. That's

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<v Speaker 1>the genius of this program. I lost twenty six pounds

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<v Speaker 1>and I have eaten bread every single day. We've all

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<v Speaker 1>seen the many commercials aimed at the millions of Americans

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<v Speaker 1>trying to lose weight. With good reason. People who are

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<v Speaker 1>fat faced bias in every corner of their lives. In

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<v Speaker 1>one survey, respondents rated people who looked overweight as lazier,

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<v Speaker 1>weaker willed, and less likely to win on Jeopardy. And

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<v Speaker 1>being overweight can even cost you your job Joining me

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<v Speaker 1>is Bloomberg Business Week reporter josh Idolson. Josh found that

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<v Speaker 1>people who are overweight are hired less, promoted less, and

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<v Speaker 1>paid less. One study suggests that gaining one point of

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<v Speaker 1>body mass index, which is just six pounds for an

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<v Speaker 1>average American woman, causes a woman's hourly pay to drop

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<v Speaker 1>by two. This exemplifies how systemic weight discrimination is in

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<v Speaker 1>US society and in the US workplace, where having more

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<v Speaker 1>weight can mean not being hired, not being promoted, not

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<v Speaker 1>being retained, or being fired, as well as being paid

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<v Speaker 1>less money and being put in less desirable positions, and

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<v Speaker 1>companies get away with this treatment of overweight employees. Something

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<v Speaker 1>many people don't realize is that discrimination based on weight

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<v Speaker 1>is legal in almost all of the country. There's only

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<v Speaker 1>one US state, Michigan, which has banned discrimination based on weight.

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<v Speaker 1>There are a hands full of cities that have done it.

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<v Speaker 1>Federal law covers categories like religion and race and veteran status,

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<v Speaker 1>but not explicitly your weight. There are cases where people

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<v Speaker 1>with obesity have challenged alleged discrimination based on their weight

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<v Speaker 1>under the Americans with Disabilities Act. That ad A prohibits

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<v Speaker 1>discrimination based on physical impairments that interfere with major life activities,

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<v Speaker 1>but courts in general have been pretty hesitant about finding

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<v Speaker 1>weight to be something that is covered as a disability

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<v Speaker 1>under the ADA, even in cases where we're talking about

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<v Speaker 1>more serious obesity. Federal judges have written that considering obesity

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<v Speaker 1>to be a disability could create a slippery slope that

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<v Speaker 1>would even include protecting grossly short people. That's one of

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<v Speaker 1>several cases in which federal judges have bulked at the

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<v Speaker 1>idea that someone's obesity inherently is a protect the disability,

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<v Speaker 1>and so judges have asked questions about whether there's a

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<v Speaker 1>physiological cause to the person's obesity or not. As one

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<v Speaker 1>law professor put it to me, these cases can seem

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<v Speaker 1>pretty judge e on the judge's part, and one of

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<v Speaker 1>the authors of the Americans with Disabilities Act argued to

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<v Speaker 1>me that these distinctions are not really in the text

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<v Speaker 1>of the law, that the law itself does not ask

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<v Speaker 1>what's the origin of someone's disability? Is it in their

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<v Speaker 1>genes or is it in a choice that they made.

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<v Speaker 1>But there has been a sense in many of the

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<v Speaker 1>cases from the judges that it just can't be that

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<v Speaker 1>obesity itself automatically is legally protected. Some judges have been

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<v Speaker 1>concerned with this concept called immutability, that is, whether the

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

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<v Speaker 1>This is a tricky issue, in part because a lot

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<v Speaker 1>of Americans think of weight as not out of someone's control,

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<v Speaker 1>as something that is a consequence of people's choices, a

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<v Speaker 1>consequence of their willpower. But the mutability of weight really

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<v Speaker 1>is overstated. If you look at the science on this,

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<v Speaker 1>and in fact, the weight of a mutability is overstated too.

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<v Speaker 1>Many of the categories that are protected under discrimination law

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<v Speaker 1>are in a sense not fully immutable. Your religion, for example,

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<v Speaker 1>is something that you can choose to change, but most

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<v Speaker 1>Americans don't think it's something you should have to change

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<v Speaker 1>in order to get a job or in order to

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<v Speaker 1>keep a job. Some of the conclusions the judges reach

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<v Speaker 1>in these cases seem unusual to me. To put it mildly,

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<v Speaker 1>To tell us about the New Jersey Casino, there was

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<v Speaker 1>a case brought by the cocktail waitresses at casino in

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<v Speaker 1>New Jersey, who the casino deemed Borgata babes. They argued

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<v Speaker 1>that the company was illegally regulating their weight, restricting the

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<v Speaker 1>number of pounds they were allowed to gain, and the

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<v Speaker 1>judge ruled that in fact, the company legally was entitled

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<v Speaker 1>to regulate its employees weight. He wrote that if you

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<v Speaker 1>are gaining a lot of pounds, your body is telling

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<v Speaker 1>you something. And he also wrote that the plaintiffs can't

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<v Speaker 1>shed the label of babe because it was something that

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<v Speaker 1>they embraced by going to work for the Borgata in

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<v Speaker 1>the first place. This judge, by the way, is also

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<v Speaker 1>the author of the book Boardwalk Empire. How is the

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<v Speaker 1>US catching up with science as far as weight is concerned.

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<v Speaker 1>You know, there are a lot of websites and a

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

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<v Speaker 1>But how is the US catching up with the science?

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<v Speaker 1>Research suggests that our bodies really are more a product

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<v Speaker 1>of our genes and our environment then of our willpower,

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<v Speaker 1>and that when people's weight goes down a lot, that

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<v Speaker 1>tends to be temporary, and having your weight drastically decrease

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<v Speaker 1>and increase repeatedly itself is a risk factor for dangerous

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

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<v Speaker 1>growth of a health at Every size movement promoting nutrition

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<v Speaker 1>and exercise that's been gaining ground among nutritionists and doctors

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<v Speaker 1>and patients. We've seen a whole new conversation on social

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<v Speaker 1>media about that shaming and shifting the blame away from

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<v Speaker 1>individuals for their weight and towards companies and brands for

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<v Speaker 1>not serving larger people and for contributing to stigma against

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

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<v Speaker 1>of magazine, for example, from promoting diets from a cottage

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<v Speaker 1>cheese diet to a Chinese diet to now profiling intuitive

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<v Speaker 1>eating eating what you're actually hungry for when you're actually

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<v Speaker 1>hungry for it. And we've seen legislative efforts to change

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<v Speaker 1>the law to write protections for overweight or obese people

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<v Speaker 1>into the law. Yeah, I have to say that I

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<v Speaker 1>have been on some of those crazy diets. So let's

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<v Speaker 1>talk about the laws. As you point out, more than

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<v Speaker 1>half of the states have laws protecting people who smoke

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<v Speaker 1>cigarettes on their own time, yet only one has a

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<v Speaker 1>law banning discrimination based on weight and a few cities.

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<v Speaker 1>How do those laws make a difference in the state

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<v Speaker 1>or the city, and as far as lawsuits that are

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<v Speaker 1>brought there. The bigger picture here is that most people

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<v Speaker 1>in the US are operating under what's called at unemployment,

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<v Speaker 1>which means your boss can fire you for almost any

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<v Speaker 1>reason or with no reason at all. There are specific

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<v Speaker 1>exceptions to that fiat that managers have in the US,

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<v Speaker 1>like the protections in civil rights laws or in labor

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<v Speaker 1>law letting people organized collectively with at least in theory,

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<v Speaker 1>some protection against getting fired. And in the state of

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<v Speaker 1>Michigan and some cities there are protections that include a

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

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<v Speaker 1>seen a lawsuit brought by a former manager for Coach

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<v Speaker 1>who said the company, when she was petite, promoted her,

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<v Speaker 1>and then once she wasn't fired her and in between

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<v Speaker 1>pressured her to take weight loss hormones and to get

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<v Speaker 1>bariatric surgery, and even asked in a performance evaluation what

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<v Speaker 1>had happened to the version of her that the eight

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<v Speaker 1>lean cuisines every day. That lawsuit was settled on undisclosed terms.

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<v Speaker 1>We've seen in San Francisco a settlement with jazz Er

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<v Speaker 1>Size where the company said it would no longer require

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<v Speaker 1>that its stance fitness teachers look leaner than the public,

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<v Speaker 1>and the company Jazzer Size, in that case said that

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<v Speaker 1>studies had shown that it might indeed be possible for

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<v Speaker 1>people of varying weights to be fit. There was also

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<v Speaker 1>a study in two sixteen which found that the efficacy

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<v Speaker 1>of these protections varies seemingly in part based on how

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<v Speaker 1>strongly enforcement mechanisms are, but that some of them, like

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<v Speaker 1>in Madison, Wisconsin and in Urbana, Illinois, had significantly improved

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<v Speaker 1>the labor market outcomes for people with obesity. It is

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

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<v Speaker 1>it's extremely difficult to expand civil rights protections. What is

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<v Speaker 1>going on now that might change that. As far as

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<v Speaker 1>weight discrimination, there is a confluence of events that make

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<v Speaker 1>advocates believe they have the best chance in decades now

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<v Speaker 1>to vastly expand the number of Americans who have protection

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<v Speaker 1>against weight discrimination. The science has advanced, the conversation on

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<v Speaker 1>social media has shifted. Other civil rights advances have emboldened

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<v Speaker 1>and inspired people. In New York, for example, there have

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<v Speaker 1>been laws passed in recent years protecting people based on

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<v Speaker 1>gender identity and based on hairstyle, such as afros. We

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<v Speaker 1>saw this watershed Supreme Court ruling interpreting the sex discrimination

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<v Speaker 1>clause in the Civil Rights Act of nineteen sixty four

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<v Speaker 1>to also protect LGBTQ people on the grounds that anti

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<v Speaker 1>gay or anti trans bias is inherently a form of

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<v Speaker 1>sex discrimination. The confluence of those events has given new

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<v Speaker 1>life to efforts at the state level to add weight

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<v Speaker 1>as well as height, to existing discrimination laws, and in

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<v Speaker 1>New York, a new effort is being mounted by prominent

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<v Speaker 1>lawmakers and a retail union. In Massachusetts, a bill that

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<v Speaker 1>has been introduced in different versions for a couple of decades,

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<v Speaker 1>now has passed the Judiciary Committee, and the effort to

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<v Speaker 1>prohibit weight discrimination has now been endorsed by the state's

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<v Speaker 1>attorney generals. Is the likely next governor of Massachusetts. I

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

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<v Speaker 1>push to try to ban weight bias. Yes, that's right.

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<v Speaker 1>The lawmaker who had been introducing this r and over

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<v Speaker 1>retired and passed the baton on two newer senator who

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<v Speaker 1>says she herself has witnessed weight discrimination in areas of

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<v Speaker 1>her life, from being an attorney, to being a dancer

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<v Speaker 1>to being a parent. In two thousand seven, management side

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<v Speaker 1>attorneys criticized a version of the Massachusetts law, thing that

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<v Speaker 1>it was wrong to treat weight as something immutable that

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<v Speaker 1>is comparable to a category like race, and arguing that

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<v Speaker 1>the law is unnecessary. But recently there has not been

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<v Speaker 1>much vocal opposition from business groups to these pushes for

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<v Speaker 1>new workplace protections around weight. Do you think that's because

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<v Speaker 1>attitudes are changing toward weight, and you know, you talk

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<v Speaker 1>about Katie Stino and what she's been doing. Business lobbies

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<v Speaker 1>argue that the members already opposed and avoid discrimination. Advocates

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<v Speaker 1>for these weight protections say companies would bring down shame

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<v Speaker 1>on themselves if they were vocally advocating for maintaining their

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<v Speaker 1>legal right to discriminate based on weight. I talked to

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<v Speaker 1>a leader of the Michigan Chamber of Commerce who said

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<v Speaker 1>they don't necessarily think everyone should add this protection to

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<v Speaker 1>their law, but that in Michigan they don't hear much

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<v Speaker 1>complaint about it, and that once the laws on the book,

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<v Speaker 1>so you figure out a way to live with it,

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<v Speaker 1>and they have done that there in Michigan. I talked

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<v Speaker 1>to Katie Sterno, consultant and writer and content creator who

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<v Speaker 1>now has six thousand followers on Instagram, where she posts

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<v Speaker 1>things like images of herself remaking celebrities outfits to fit

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<v Speaker 1>her and images of herself on the video trying to

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<v Speaker 1>fit into the largest sizes but some brands provide to

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<v Speaker 1>show that they're not large enough. She now is working

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<v Speaker 1>with Amazon to develop a clothing line include including size

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<v Speaker 1>for X and five X clothing that goes on sale

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

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<v Speaker 1>are on the books, whether there's still going to be

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<v Speaker 1>internal bias that you can't really prove like a thin

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<v Speaker 1>person getting a promotion over a heavier person. I just

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

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<v Speaker 1>balls against discrimination don't eradicate all discrimination, and not everyone

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<v Speaker 1>who is discriminated against succeeds in proving it in court.

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<v Speaker 1>And there are all sorts of obstacles in the US,

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<v Speaker 1>including for st arbitration clauses for example, at prevent people

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<v Speaker 1>who have been discriminated against from vindicating their rights under

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<v Speaker 1>the law. But that said law in social norms influenced

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<v Speaker 1>each other. So the shift in the culture away from

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<v Speaker 1>digmatizing people for their weight is increasing the possibility of

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<v Speaker 1>passing legal protections. In turn, passing new legal protections has

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<v Speaker 1>a social impact as well. One of the lawmakers I

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<v Speaker 1>spoke to referred to it as the educational function of

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<v Speaker 1>the law, and people do look at the law as

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<v Speaker 1>representing something about what's okay in our society or not.

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<v Speaker 1>Thanks Josh, that's Josh Idolson of Bloomberg Business Week. The

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<v Speaker 1>mayor of New York City did it, and many other

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<v Speaker 1>people want to do the same. Get their pay in bitcoin.

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<v Speaker 1>Joining me is Paige Smith, Bloomberg Law reporter you're hearing

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<v Speaker 1>that more employees are asking to be paid in bitcoin. Yes,

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<v Speaker 1>so there are a number of employees and workers in

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

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<v Speaker 1>sort of looking to a number of different cryptocurrencies, not

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<v Speaker 1>just Bitcoin, to essentially ask for their paychecks in those cryptocurrencies.

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<v Speaker 1>And there are are also some companies that are sort

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<v Speaker 1>of stepping in to help them achieve that because there

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<v Speaker 1>are some legal limitations to what you can and can't

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<v Speaker 1>do when it comes to getting your paycheck in crypto.

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<v Speaker 1>So is it in particular people in the tech industry

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<v Speaker 1>or all over So I spoke with some attorneys who

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<v Speaker 1>have fielded a number of questions from clients on this.

0:16:44.320 --> 0:16:47.160
<v Speaker 1>They've said that it's mostly companies in the text space

0:16:47.320 --> 0:16:51.600
<v Speaker 1>that want to give that opportunity to workers who are

0:16:51.600 --> 0:16:55.320
<v Speaker 1>maybe more familiar with cryptocurrencies and sort of through everyday

0:16:55.680 --> 0:16:58.000
<v Speaker 1>journalists for example. And I know there are a number

0:16:58.000 --> 0:17:01.040
<v Speaker 1>of journalists covering cryptocurrencies, but I think that a lot

0:17:01.080 --> 0:17:04.879
<v Speaker 1>of my friends don't necessarily know the legalities of getting

0:17:05.320 --> 0:17:08.000
<v Speaker 1>your paycheck in crypto. So there are a number of

0:17:08.040 --> 0:17:12.520
<v Speaker 1>folks across industries asking for their paychecks and cryptocurrency. Some

0:17:12.680 --> 0:17:15.600
<v Speaker 1>high profile examples have been you know, the New York

0:17:15.600 --> 0:17:18.639
<v Speaker 1>City mayor Eric Adams, he sort of asked for his

0:17:18.720 --> 0:17:22.160
<v Speaker 1>paycheck in cryptocurrency to push the city to be more

0:17:22.200 --> 0:17:25.359
<v Speaker 1>crypto friendly. Um, and there's been some other folks like

0:17:25.440 --> 0:17:28.679
<v Speaker 1>the Miami mayor and even athletes like Aaron Rodgers have

0:17:28.760 --> 0:17:33.120
<v Speaker 1>at least partially looked into the idea of getting their

0:17:33.160 --> 0:17:37.879
<v Speaker 1>paychecks in crypto. So what about the legalities? Is it legal?

0:17:38.359 --> 0:17:41.600
<v Speaker 1>That's a good question. As it stands right now, all

0:17:41.880 --> 0:17:46.120
<v Speaker 1>wages are dictated by the Fair Labor Standard deck that's

0:17:46.119 --> 0:17:49.439
<v Speaker 1>a statute that was signed into law in night and

0:17:49.480 --> 0:17:52.520
<v Speaker 1>it basically clarifies how you, as a worker can receive

0:17:52.560 --> 0:17:56.439
<v Speaker 1>your wages. So as it stands, currently workers must be

0:17:56.480 --> 0:18:00.960
<v Speaker 1>paid in American currency, so legally, the payment of wages

0:18:00.960 --> 0:18:04.800
<v Speaker 1>in crypto is not recognized at this time. You have

0:18:04.920 --> 0:18:08.040
<v Speaker 1>to get your paycheck in cash or what is called

0:18:08.080 --> 0:18:11.520
<v Speaker 1>a negotiable instrument payable at part like a check. But

0:18:11.680 --> 0:18:14.239
<v Speaker 1>as that being said, there are some ways that you know,

0:18:14.280 --> 0:18:18.840
<v Speaker 1>workers can essentially convert their paychecks into crypto, and there

0:18:18.840 --> 0:18:20.959
<v Speaker 1>are companies that are stepping in to help them do that.

0:18:21.040 --> 0:18:25.160
<v Speaker 1>So companies like payroll service providers who will essentially help

0:18:25.200 --> 0:18:28.760
<v Speaker 1>you as a worker, convert your paycheck into crypto. If

0:18:28.800 --> 0:18:31.840
<v Speaker 1>it isn't strictly legal, how do you account for the

0:18:31.880 --> 0:18:34.040
<v Speaker 1>fact that, as you said, the mayor of New York

0:18:34.080 --> 0:18:38.439
<v Speaker 1>City got paid in bitcoin. So it doesn't prevent you

0:18:38.520 --> 0:18:41.800
<v Speaker 1>as a worker from you know, converting your wages into

0:18:41.880 --> 0:18:45.600
<v Speaker 1>whatever you would like to convert them into. So, for example,

0:18:45.680 --> 0:18:49.680
<v Speaker 1>you can still convert your wages into cryptocurrencies after the fact.

0:18:49.800 --> 0:18:52.719
<v Speaker 1>But I spoke with the CEO of a payroll service

0:18:52.760 --> 0:18:55.760
<v Speaker 1>provider that essentially explained this to me that you know,

0:18:55.880 --> 0:18:59.000
<v Speaker 1>you're still basically being paid in your local currency, but

0:18:59.560 --> 0:19:03.199
<v Speaker 1>it's you're then converting the net amount you're entitled to

0:19:03.560 --> 0:19:06.600
<v Speaker 1>in crypto. So it's sort of a two step process,

0:19:06.640 --> 0:19:09.920
<v Speaker 1>if you will. So you could just as easily buy

0:19:09.920 --> 0:19:13.800
<v Speaker 1>crypto with the sellary you make. That's essentially the process.

0:19:14.480 --> 0:19:18.679
<v Speaker 1>So tell us about this company that will transfer your

0:19:18.720 --> 0:19:21.480
<v Speaker 1>wages to crypto. So there are a number of payroll

0:19:21.920 --> 0:19:24.959
<v Speaker 1>service providers at this time that are, um, you know,

0:19:25.000 --> 0:19:28.520
<v Speaker 1>helping companies offer this service to their workers. So it's

0:19:28.560 --> 0:19:30.560
<v Speaker 1>sort of a benefit if you will. You know, I

0:19:30.600 --> 0:19:34.159
<v Speaker 1>spoke with one ceo the CEO and still founder of

0:19:34.560 --> 0:19:38.640
<v Speaker 1>a company called Papaya Global, who sort of explained to

0:19:38.680 --> 0:19:40.480
<v Speaker 1>me how it would work, which is, you know, you're

0:19:40.560 --> 0:19:44.280
<v Speaker 1>essentially paid in your local currency and then they convert

0:19:44.359 --> 0:19:48.560
<v Speaker 1>the net amount into the cryptocurrency. But that way, your

0:19:48.600 --> 0:19:53.360
<v Speaker 1>employer is still responsible for any sort of required taxes.

0:19:53.480 --> 0:19:55.720
<v Speaker 1>And you know, the CEO said, it's not as if

0:19:55.800 --> 0:20:00.200
<v Speaker 1>they're helping companies or employees pay less in taxes. It's

0:20:00.240 --> 0:20:02.880
<v Speaker 1>just that they're providing this conversion service, if you will,

0:20:03.400 --> 0:20:07.880
<v Speaker 1>so the company pays the employee regularly and stays out

0:20:07.920 --> 0:20:12.399
<v Speaker 1>of this secondary transaction. So I spoke with some attorneys

0:20:12.400 --> 0:20:16.560
<v Speaker 1>who said that legally it would be best to in

0:20:16.640 --> 0:20:20.080
<v Speaker 1>order to mitigate litigation risk, to sort of stay away

0:20:20.160 --> 0:20:26.359
<v Speaker 1>from that secondary transfer or that that sort of conversion process. Basically,

0:20:26.520 --> 0:20:29.320
<v Speaker 1>it would kind of give them a buffer, if you will,

0:20:29.560 --> 0:20:34.239
<v Speaker 1>because it would just mitigate gage related litigation risk. Are

0:20:34.280 --> 0:20:38.679
<v Speaker 1>there tax issues with getting cryptocurrency? Well, I think there

0:20:38.680 --> 0:20:41.040
<v Speaker 1>are a number of different risks when you, as an

0:20:41.040 --> 0:20:45.040
<v Speaker 1>employee opt to you know, opt to investigate. There's are

0:20:45.119 --> 0:20:49.040
<v Speaker 1>up to investigate this this option. Um. I mean, volatility

0:20:49.119 --> 0:20:52.919
<v Speaker 1>is certainly a glaring concern. You know, the value of

0:20:52.920 --> 0:20:57.639
<v Speaker 1>cryptocurrencies can fluctuate very dramatically, and you know, attorneys also

0:20:57.760 --> 0:21:00.879
<v Speaker 1>did say that you know employers are offering this for

0:21:00.920 --> 0:21:04.160
<v Speaker 1>their workers, they should you be very clear that there

0:21:04.160 --> 0:21:09.479
<v Speaker 1>are tax concerns that workers should umplore. I mean capital

0:21:09.560 --> 0:21:12.520
<v Speaker 1>gains taxes kicked in any time a worker solves or

0:21:12.560 --> 0:21:16.480
<v Speaker 1>buys another cryptocurrency, So that is definitely a cost for

0:21:16.520 --> 0:21:20.160
<v Speaker 1>both companies and employees to consider. Thanks so much, Paige.

0:21:20.560 --> 0:21:23.760
<v Speaker 1>That's Paige Smith, Bloomberg Law Reporter for Labor and Employment.

0:21:24.200 --> 0:21:26.480
<v Speaker 1>And that's it for this edition of the Bloomberg Law Show.

0:21:26.840 --> 0:21:29.159
<v Speaker 1>Remember you can always get the latest legal news on

0:21:29.200 --> 0:21:33.480
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0:21:33.720 --> 0:21:38.720
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0:21:39.160 --> 0:21:41.760
<v Speaker 1>and remember to tune into The Bloomberg Law Show every

0:21:41.800 --> 0:21:45.240
<v Speaker 1>week night at ten pm Wall Street Time. I'm June

0:21:45.280 --> 0:21:47.440
<v Speaker 1>Grosso and you're listening to Bloomberg