I must admit that when I think of an aerobics instructor, “thin” is almost the first adjective that comes to mind. But is being thin legitimately job related? Why? Because most customers expect it? Most soda fountain customers in Alabama during the 1960s expected their lunch counter companions to be white. You can see how the argument goes.
Another incident of weight discrimination involved a decision of Southwest Airlines to enforce a long-standing but long-ignored policy requiring especially overweight people to purchase two seats on full flights in order to avoid crowding their neighbors. In a charming display of sensitivity the president of the Air Travelers Association remarked in support of the policy: “If passengers have supersized themselves and are encroaching on the space of others, fairness says you should be paying for the space.” Should Southwest’s policy be actionable?
Weight, like cultural difference straddles the typical anti discrimination distinction between status and conduct. Both are ambiguously mutable: it may be that most overweight people are overweight because they overeat and don’t exercise (although that certainly wasn’t true of the Jazzercise applicant) but many biologists believe that obesity is at least partially a biological predisposition. And just as we needn’t think that cultural differences are biologically determined to acknowledge that they are often instinctual and difficult to change, once one is obese, however he got there, it can be very hard to lose the weight, as any dieter knows. Finally weight, much like cultural difference, can become a part of a person’s self-conception. Adopting the logic of difference discourse, there are political movements of “fat” people such as the National Association to Advance Fat Acceptance whose members are proud to be “fat” and wouldn’t change for all the Ultra Slim-Fast in the world. A rally celebrating the verdict against Jazzercize’s “fit appearance policy was attended by:
rotund cheerleaders waving pompons, poetry about poundage and assorted fat activism:
“Two-four-six-eight, we do not regurgitate. Three-five-seven-nine, love your body, it’s just fine.”
Amanda Piasecki, 27, a graduate student in Oakland, wore a lavender slip, fishnet stockings and a photo of herself as an anorexic teenager. Shackled by a chain on her ankles were two scales.
“A lot of women are shackled to the scale,” says Piasecki, who weighs 225 pounds. “I went on a lot of extreme diets. I ate 800 calories a day for two years. I’m now at my natural body size, and I’m a lot happier.”
We can stretch the logic of rights-to-difference further still. On the streets of San Francisco, a once-genteel city is now the site of thousands of daily little wars between motorists, pedestrians and cyclists, each vying to be King of the Concrete Jungle. There’s plenty of blame to go around: motorists run bikes and pedestrians off the road and, as SUV’s proliferate, the iron law of traffic physics applies—both skill and civility are inversely related to the size of vehicle. Pedestrians are the smallest and therefore the most self-righteous, walking into heavy traffic at night, stealthy as a jewel thief in all black, and screaming in outrage when a startled motorist stops short or a cyclist has to dodge to avoid them. Cyclists disregard traffic laws, sailing through red lights, dodging into on-coming traffic, jumping curbs to utilize sidewalks and regularly form ing a mob scene known as “Critical Mass,” in which hundreds of cyclists with axes to grind or time to kill ride through the city’s major thoroughfares in a parade so dense as to block motorist, pedestrian and chicken alike from crossing the road. These unauthorized events often stretch for miles and tie up traf fic for blocks in every direction. The resulting traffic related tensions reached their inevitable conclusion when some cyclists pressed the city to make traffic confrontations between cyclists and motorists actionable as hate crimes (of course, only when the motorist wins the fight).
Cyclists, unlike racial minorities and homosexuals, aren’t attacked because of widespread prejudice against them; they’re attacked (when they aren’t on the attack) because of a social conflict over a scarce resource: the city streets. For the most part these conflicts should be resolved in the streets, not the court (confrontations that come to blows should be settled according to the identity-indifferent rules governing criminal assault).
What goes around, comes around: in San Francisco and Berkeley the idea of a “dog culture” developed around efforts to overturn leash laws and now has spawned its own political rally for off-leash parks entitled: “Critical Mutt.” Taken to not illogical extremes, the “dog culture” argument insists that those who care for animals have a unique culture that is undervalued by the mainstream (people who don’t like dog shit are, after all, just bigots.)
I imagine most rights-to-difference proponents would agree that we have to draw the anti-discrimination line somewhere well above “cyclists rights.” Indeed, many supporters of cultural rights bristle when it is suggested that their logic might extend to prohibit discrimination based on physical attractiveness (studies have shown that “attractive people get better jobs and higher salaries than similarly talented “ugly” people’) or against nonconformists such as gender cross dressers, punks with purple hair or Mohawk hair cuts or “urban primitives” with multiple body piercings, scarification or bold and visible tattoos.
I suspect that they bristle for two reasons. One is psychological. Difference discourse aspires to more than practical policy reform—it also aspires to political recognition for certain groups, a message of respect and inclusion communicated through the imprimatur of the state. Like cash, the value of that imprimatur is diminished as it is multiplied. It is ennobling to be one of the handful of social groups recognized as especially important and deserving of recognition, but it means little to be one of scores of groups in an everyone-but-the-kitchen sink list. Indeed, at some point the inclusion of ever more marginal groups can be downright insulting to the more established ones. Suppose, for instance, that a state legislature decided to recognize gay marriage. This would arguably be a profound statement of respect for homosexuals. But suppose that when the bill was assured of success, a disgruntled member of the Christian Coalition added a rider to the bill, repealing laws against polygamy or extending recognition of marriage to unions between siblings. We would correctly see this as an attempt to undermine the social value of the gay marriages.
The second reason for bristling is practical. There’s a nagging suspicion that beneath its command of formal neutrality; anti-discrimination law involves a subtle shift in social resources. Businesses spend time and money on sensitivity training and outreach in order to counter the possibility of bias against the protected groups. They won’t just multiply their efforts by the number of protected groups, as that number continues to grow. There is a limited amount of time that a law firm partner or Fortune 500 CEO will spend in sensitivity workshops. Although in theory adding groups to the list shouldn’t diminish the protection for more established groups, in our fallen world of limited social resources, it will. If “everyone” gets anti-discrimination protection, in a sense, there’s less of it to go around. The gripes of newly minted minority identity groups such as San Francisco’s cyclists and dog owners—even if legitimate—justifiably strike many people as trivial in comparison to those of society’s long-suffering minority groups. There are minorities and then there are Minorities; some people lose out in the political process and the market because their causes and behavior are simply unpopular. From these “minorities,” rights arguments don’t sound like justice; they sound like a way to circumvent democracy and free ride on the free enterprise system.
Discrimination on the basis of many personal attributes is inappropriate and unfair. For many purposes, factors such as height, weight, physical beauty, personal grooming and certain cultural practices are irrelevant and therefore unfair bases of discrimination. A job applicant passed over because a potential employer favors taller or more handsome employees (check into a trendy New York hotel and try to find a short, portly, ugly or even average- looking porter, clerk, concierge, bartender or waitress) is arguably the victim of unfair discrimination and is just as unemployed as one passed over because of race or gender. As law professor Mark Kelman notes, “any... straight, white, able-bodied male may be the victim of irrational treatment by a particular employer or public accommodations owner. He might, for instance, remind the person with whom he wishes to deal of some loathed stepfather.”
But there are good reasons that anti-discrimination law does not prohibit all “unfair” discrimination, reserving what Brain Barry calls “the ponderous machinery of the law” for the most pressing, pervasive and stigmatizing wrongs. Discrimination on the paradigmatic bases of race, color and sex as well as disability and in my view sexual orientation raises distinctive concerns because it participates in the production of socially inferior classes of people, groups of permanently lower social status, inferior castes. Such discrimination is based on tragically widespread social prejudice and folklore about the groups in question. It perpetuates such prejudice by reinforcing the perception that the group in question is unfit for dignified and equal treatment. Because the prejudice is widespread, members of the socially inferior groups can expect to encounter it regularly if not unremittingly. As Kelman notes:
[Whereas] members of socially advantaged groups are unlikely to face such [discriminatory] treatment persistently, across a wide variety of settings we may reasonably believe that prejudice against African-Americans... is widespread among those with social power. Stereotypes about members of socially salient groups are both socially created and social-norms-enforced and are thus repeatedly in play. ... [B]oth the African-American and the white [who reminds the employer of a hated stepfather] are victims of discrimination... but the discrimination against the latter and not the former is likely to be corrected by market competition rather than state action.
Social prejudice directed at a stigmatized group impoverishes and isolates the group as a whole, effectively quarantining its members in limited social roles and adds insult to injury by insisting that their isolation is deserved and justified. By contrast, discrimination on other bases, even when unjust, is usually sporadic, episodic or individualized. Randy Newman’s famous parody of bigotry, "Short People" (dont want no short people round here!”) was humorous because there is little risk of systematic bias against short people which might result in a socially inferior “short” caste.
For reasons similar to those that it should not attempt to proscribe unfair discrimination generally, anti-discrimination law should not attempt to prohibit “cultural discrimination” even if it disproportionately affects the canonical social groups. Cultural discrimination may in fact be motivated by things other than animus toward a social group. If for instance, an employer bans cornrow hairstyles along with many other unconventional hairstyles because she wants to communicate a conservative business image, discrimination suffered by the cornrow-preferring African-American is in principle indistinguishable from that suffered by the white person who prefers another prohibited hairstyle. Because such discrimination is likely to fall more equitably, members of many social groups, rather than concentrating its effects only on one or a few, it should be easier to combat through collective bargaining and should not result in the persistent isolation or subordination of any given group. And, such discrimination is likely to be much less pervasive than discrimination based on ascribed social status: some employers will want to promote a conservative business image, but many will not. By contrast simple racial prejudice, for example, is widespread. Finally, when the target of discrimination is mutable behavior, the putative plaintiff can avoid the discrimination; it is reasonable to assume that at least some of the potential victims of discrimination (those individuals predisposed to exhibit the disfavored traits) will in fact avoid it by changing their behavior thereby reducing the isolating effect of the discrimination on the group as a group."
--- Racial culture : a critique / Richard Ford
I find his argument unconvincing, for several reasons.
The principle behind legalising sibling marriage and polygamy is the same as that of recognising gay marriages - the State has no business interfering with the affairs of consenting and informed adults, especially with regard to bedroom matters.
He privileges some minority groups above others, based on historical discrimination (rather than current suffering - which after all is the most, and perhaps only, relevant criterion).
He is against the creation of subaltern groups, but gays are on average smarter, richer and better educated than the general population. Ditto for Jews. Of course, this doesn't mean that we can stone either gays or Jews, but if we follow some lines of his logic we really should apply the same standards for discrimination against fat or short people as for racial groups and the like.
Despite his claim, there is a systematic bias against short people, although it is more subtle than the most egregious examples of racial/gender/other traditional bias that one can think of. What we need to do is operationalise what we mean by 'discrimination'. What matters more is not so much the basis for the discrimination, but its seriousness, extent and justifications. Not all forms of discrimination have equally (or even actual) debilitating effects.
He says discrimination based on hairstyle is alright, but then Black women love to braid their hair, and black men either braid theirs or just shave their heads. Allowing only traditional hairstyles privilege Whites, or at least non-Blacks. He also says "some employers will want to promote a conservative business image, but many will not". Similarly, if racial discrimination is pervasive, many (White) employers will not want to hire Blacks, but many (Black) employers will.
Finally, a lot of his snide remarks would apply to more traditional forms of discrimination (eg 'hate crimes' against cyclists - some people think the use of the word 'fag' constitutes a hate crime).