This article posits that the emerging employer-imposed health insurance fat tax regime subverts the public policy goal of achieving actual health and evidences two important systemic phenomena: first, that these fat taxes force fat people to cover their fatness, and second, that current legal structure permitting this practice ensures that society continues to cover up its anti-fat bias. American society, through the health care system and other mechanisms, has created a fat-thin dichotomy within which thin is good and fat is bad. Recently, employers began reinforcing this dichotomy by imposing on employees whose weight renders them “obese” on the Body Mass Index (“BMI”) certain additional health insurance costs – referred to herein as health insurance fat taxes. Employers use these health insurance fat taxes to unevenly pass through to employees the costs of health insurance coverage, in an effort to reduce their own contributory costs for that insurance. Simultaneously, employers reduce the insurance costs for thin employees who do not, at least based on their body size, drive up the overall costs of insurance. Essentially, health insurance fat taxes increase the costs of fatness, both fiscally and systemically, by imposing both overt and covert penalties for fatness. The overt financial and access repercussions speak for themselves. Covertly, health insurance fat taxes force fat individuals to cover their fatness. Professor Kenji Yoshino describes covering as a method of forced assimilation that occurs when individuals acknowledge and embrace the underlying identity, but are socially required to make that underlying identity easier for others to ignore. This article posits that health insurance fat taxes force fat individuals to cover their fatness by mandating a tacit acknowledgement that fat is bad and unhealthy. Notably, this covering stems from a physical characteristic that might be wholly irrelevant vis-à-vis actual health. Though uneven costs based on a potentially arbitrary physical feature might seem discriminatory, health insurance fat taxes are perfectly legal under federal law. This article posits that the legality of this regime reflects a different type of covering, by which society forces itself to make certain of its underlying identities – anti-fat bias, racism, and sexism – a little less obvious. While this is not the individualized covering Professor Yoshino originally discussed, this article attempts to expand upon that conception. As a whole, society avoids admitting that its shortcomings, such as anti-fat bias, exist. Collective society pushes to cover its collective flaws through the law. Specifically, systemic fear of fatness and losing the currency ascribed to thinness allows the law to permit the existence and growth of this new regime. Health insurance fat taxes exemplify the concept of what will be termed herein as collective cover-up.
Health Cover(age)ing, 90 NEB. L. REV. 920