Thursday, November 24, 2005

Obesity Regulation in the Workplace?

The University of Chicago Law School Faculty Blog has an interesting post, with web-cast, on "Obesity Regulation" from a speech Dean Saul Levmore delivered last week to the Standard Club in Chicago.  Levmore's thought-provoking thesis is that you might be able to enlist the government to pass legislation or promulgate programs to make you do something, say quit smoking or control your weight, which you otherwise might not do on your own.  Such regulation helps with individual self-control problems.  Although Levmore does not believe such obesity regulation is likely from the government (for among other reasons, because interest groups want people obese (i.e., weight loss program companies, snack food manufacturers, etc.), on the other hand, employer arrangements that give people the incentive to lose weight might work. 

Some highlights of this talk: obesity is smoking 40 years ago. Most people aren't happy they smoke.  Same with obesity, few people are happy with being overweight.  Internal costs of obesity are large. What to do about this?    

From an employment law perspective, the obesity crisis in this country matters because of the rising health insurance costs associated with obesity. Can employers come up with arrangements whereby they would award employees for not being overweight or charge them (perhaps through higher health insurance premiums) for being overweight?  Consider that obese employees are generally not protected by anti-discrimination laws (such as the ADA).

Would such programs be a good idea, especially if a large percentage of overweight workers believe they cannot control their weight? Or even if we believe most people can control their weight, as a matter of public policy, do we want employer's interfering with decisions we make in our personal lives? Do public employees have more protection under a Lawrence-like substantive due process right to decisional non-interference in private affairs? 

To be clear, the employer would not be banning an employee from being overweight, but putting in place mechanisms which would encourage the employee to lose weight (through carrots, sticks or both).

In any event, food for thought on this Thanksgiving day.  All comments welcome.

Post by:  Paul M. Secunda

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Two thoughts:

(1) Some state and city antidscrim laws (e.g., in NY State and NY City) define "disability" far more broadly than the ADA does -- sufficiently broadly to cover obesity, at least obesity of a sufficient magnitude. So obesity-targeted charges/fees/requirements could run into legal trouble in some jurisdictions.

(2) I'm not sure how much of obesity is a genetic predisposition. If a decent portion of the cause of obesity is genetic, I'd be troubled by targeting the obese for charges, fees, requirements, etc.

I'd have to think harder about this before reaching any definite conclusions about particular programs; these are just preliminary thoughts.

Posted by: Scott Moss | Nov 26, 2005 12:10:11 PM

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