Jennifer Bennett Shinall

Distaste or Disability? Evaluating the Legal Framework for Protecting Obese Workers

This Article examines a recent rise in suits brought against unions under criminal statutes. By looking at the long history of criminal regulation of labor, the Article argues that these suits represent an attack on the theoretical underpinnings of post-New Deal U.S. labor law and an attempt to revive a nineteenth century conception of unions as extortionate criminal conspiracies. The Article further argues that this criminal turn is reflective of a broader contemporary preference for finding criminal solutions to social and economic problems. In a moment of political gridlock, parties seeking regulation increasingly do so via criminal statute. In this respect, “criminal labor law” should pose concerns, not only for scholars concerned about workplace democracy, but also those focused on overcriminalization and the increasing scope of criminal law.Prior empirical work has identified an obesity penalty in the labor market. Obese workers are less likely to be employed than non-obese workers, and even if obese workers find employment, they earn less than non-obese workers. In 2008, Congress amended the Americans with Disabilities Act (“ADA”) by broadening the scope of medical conditions it covers. Since then, legal actors have used these amendments to seek remedies against employers that take adverse employment actions against obese workers because of their weight. They argue that obesity is now a disability under the ADA, and firing workers because of their weight constitutes disability discrimination. This Article questions the recent focus on treating obesity as a disability and presents original data analysis demonstrating that employers prefer not to make obese women the public face of their companies. In fact, a substantial portion of the obesity penalty for women results from employers keeping obese women (but not obese men) out of public-interaction jobs. In contrast, the data indicate that very little of the obesity penalty results from productivity concerns or from concerns about obesity substantially limiting a major life activity. As a result, the obesity penalty is more appropriately viewed as a form of sex discrimination, instead of a form of disability discrimination. Title VII has the potential to help far more obese women in the labor market than the ADA.

Imputation Match Bias in Immigrant Wage Convergence

Although immigrants to the United States earn less at entry than their native-born counterparts, an extensive literature has found that immigrants have faster earnings growth that results in rapid convergence to native-born earnings. However, recent evidence based on U.S. Census data indicates a slowdown in the rate of earnings assimilation. We find that the pace of immigrant wage convergence based on recent data may be understated in the literature as a result of the method used by the census to impute missing information on earnings, which does not use immigration status as a match characteristic. Because both the share of immigrants in the workforce and earnings imputation rates have risen over time, imputation match bias for recent immigrants is more consequential than in earlier periods and may lead to an underestimate of the rate of immigrant wage convergence.

Occupational Characteristics and the Obesity Wage Penalty

This paper demonstrates that obese women are more likely to work in jobs that emphasize physical activity, but they are less likely to work in jobs that emphasize public interaction. The same patterns in occupational characteristics do not exist for obese men. In light of prior literature finding an unexplained wage gap between obese women and non-obese women, these results are particularly relevant since physical activity jobs pay relatively less on average, while public interaction jobs pay relatively more. Moreover, the few obese women who work in public interaction occupations receive lower wages than non-obese women, and their wage penalty offsets the general premium to working in a job emphasizing public interaction. Together, these results suggest that taste-based discrimination may be driving occupational sorting among obese women and, as a result, is at least one source of the wage penalty experienced by obese women.