1964 prohibits discrimination on th

1964 prohibits discrimination on the basis of race, color, and national origin in programs and activities that receive federal financial assistance, including Medicaid and Medicare. The Re- habilitation Act of 1973 adds dis- ability to that list, and the Americans with Disabilities Act of 1990 (ADA) prohibits discrimination against individuals with dis- abilities in any place of public accommodation, including health care providers’ offices or hospitals, regardless of funding source.
Collectively, these laws prohibit many but not all grounds for discrimination against potential patients. Race, religion, sex, and disability are among the most uniformly protected categories, whereas less than half of states prohibit health care discrimination based on sexual orientation or gender identity, for example.2 Moreover, the rejection of patients because they smoke, play contact sports, or engage in other risky behavior is legally within the realm of physician discretion, as is discrimination based on other characteristics not protected by law. Some bases for discrimination fall within a gray zone, how- ever, and discrimination based on obesity raises some particularly challenging issues.
Perhaps one of the last comparatively socially acceptable bases for discrimination, weight has not traditionally been treated as a protected category under civil rights laws. There have, however, been increasing calls for weight based discrimination to be direct ly prohibited, and it has been in several jurisdictions that ban various types of “personal appearance” discrimination (including Michigan; the District of Columbia; San Francisco and Santa
Cruz, California; Madison, Wisconsin; Urbana, Illinois; Binghamton, New York; and Howard County, Maryland). These laws tend to be seldom used, but another strategy is to address weight based discrimination indirectly by prohibiting disability based discrimination.3
The ADA defines disability as having “a physical or mental impairment that substantially limits one or more major life activities,” having a record of such impairment, or being regarded as having such an impairment. In the past, obese persons have had little success convincing courts that they satisfy this definition, and in general, the few who have succeeded have been severely obese, able to establish that their obesity had a physiological cause, or both.3,4 In 2008, however, Congress amended the ADA to clarify its intention that disability be understood quite broadly. Moreover, the question of whether an impairment substantially limits a major life activity must now be determined without regard to the ameliorative effects of mitigating measures, which might include diet and exercise.
Against this background, it seems more likely that obesity could qualify as a disability under the law. However, the centrality of impairment to the ADA’s protection against discrimination raises a critical issue regarding obese patients: patients are likely to be discriminated against not because of their impairment (if any), which would be irrelevant at the doctor’s office, but simply because of their appearance or physical characteristics — and appearance is not generally considered a disability.4 Nevertheless, because the ADA also protects