And Now, Obesity Rights

By MARGARET CARLSON

Got a weight problem? You can enroll in Weight Watchers, share your pain on Oprah, or now, thanks to the ever expanding rights of victims, phone Uncle Sam. You won't lose those extra pounds overnight, or get back your self- esteem. But you could get a wad of cash or that job you've been wanting.

These benefits come courtesy of the courts and the Equal Employment Opportunity Commission, which wants to extend the protections under the 1973 Rehabilitation Act and the Americans with Disabilities Act to obese people. Last week a federal appeals court ruled unanimously to uphold an order that required the state of Rhode Island to pay $100,000 in damages to a 320-lb. woman for not hiring her, and then ordered that she be hired as an attendant at a mental retardation facility. "Obesity may, in appropriate circumstances, constitute a disability," the EEOC said in its amicus brief. "It is not necessary that a condition be involuntary or immutable to be covered."

Only the government could think of obesity as a new entitlement. Doesn't anyone stop to think what the creation of another aggrieved group will mean to the already bursting-at-the-seams body politic? Or did anyone fast-forward to the prospect of adjudicating whether a person is fat enough to park in a handicapped space at the shopping mall or should continue to get preferential seating on airplanes? "There is not a legal cure for every wrong," says Fred Siegal, a political science professor at Cooper Union. "This is litigiousness run wild."

Pumping up minor acts of injustice into major ones also fritters away the most important resource society has, which is voluntary compliance. Individuals are deterred from discriminating not because they will be punished by law but because they internalize the value being asserted in legislation. If dramatic claims are made under more and more dubious circumstances, the public becomes cynical and all protections are in jeopardy.

The definition of what constitutes actionable fatness is, well, very broad. To be covered, it is best to be twice the normal weight for your height -- although that's not hard and fast -- have little prospect of voluntarily shedding the weight, and have been that way long enough that it "substantially limits a major life activity or is regarded as so doing."

Then there is intent. In September, California's Supreme Court ruled that a health-food store owner could not reject a job applicant if her fatness was the result of a faulty metabolism or a psychological systemic problem, but could if it was the person's fault. Imagine the cottage industry of fat experts, the obesity counselors, next door to the sexual-harassment ! counselors, at the office, trying to decide whether someone is fat by predisposition or from eating too much Haagen-Dazs.

The struggle for a tolerant society -- not only one in which the big racial injustices are cured but one in which the strong do not prey on the weak, the beautiful do not insult the ugly and the thin do not prevail over the fat -- is a worthy goal. But neither resources nor public sympathy is limitless. Treating the discrimination against someone who is fat alongside that of someone who is a paraplegic is part of an effort by special-interest groups to make all suffering equal so that all remedies will be. It is a trend that would make the college student who is insulted by a racial joke comparable to James Meredith barred at the door of Ole Miss; rape by a spouse as terrorizing as rape by a stranger with a knife in a dark alley; a Playboy calendar on the wall as detrimental on the job as a supervisor who takes away the duties of a clerk who has rebuffed his advances.

In isolation, all of these things -- and more -- are wrong and should be set right. But in a world of limits, some rights are more sacred than others, some wrongs more deserving of punishment. Not every unfairness derives from the violation of a right. Robert Nagel, professor of law at the University of Colorado, warns, "The rights makers are like children with toys, so delighted and entranced by them they want more and more, heedless of the consequences." Consider lookism, as the practice of preferring the pretty over the plain is called in rights jurisprudence. In the Harvard Law Review, Adam Cohen of the American Civil Liberties Union argues that ugly people need to be protected against discrimination too. Cohen says, "People don't realize how pervasive the preference for the beautiful is in our society, starting with teachers who give attractive children better grades." And he adds, "There is nothing wrong with giving these people who have a hard life a legal remedy. We can always set enforcement priorities later."

There should be a way to recognize that something is too bad without saying it can be fixed. To do otherwise is to fail to protect the truly vulnerable, the truly prejudged, the truly disadvantaged. There is another way to proceed. Let the current trend continue until finally, after years of legislation and adjudication, all God's children are found to be aggrieved, and then all, in their need for protection, are equal once again.