Size discrimination laws: Weighing pros, cons
(CNN) -- The case of a 240-pound California aerobics instructor has become the first to be settled under the city of San Francisco's "fat and short" law, which bans discrimination on the basis of weight and height.
Jennifer Portnick, 38, reached an agreement with dance-fitness giant Jazzercise Inc. to drop its requirement that its instructors must look fit.
Do size discrimination laws lead to frivolous lawsuits, or do they protect individual rights? "Crossfire" hosts Paul Begala and Tucker Carlson debate the issue with radio talk-show host Neal Boortz and "Fat! So?" author Marilyn Wann.
CARLSON: Now you know as well as I do that most people do Jazzercise and other sorts of jumping around in front of videotapes to get thin. Now you can see the problem if you own Jazzercise -- having a 240-pound instructor's a pretty bad advertisement for your product. It implies that it doesn't work. So can't you understand why they wouldn't want to hire a 240-pound instructor?
WANN: You know, I think the fitness industry is shooting itself in the foot by marketing thinness, rather than marketing fun. When I go to Jennifer's Portnick's class, I have fun. I feel great. I get healthy. My weight doesn't change. That's not my purpose. In fact, the latest numbers show that about 37 percent of Americans are doing no exercise. And I think if we welcomed people of all different sizes into exercise classes, they might come and have fun and get healthy. Would they get thin? I don't care. I really don't think the research supports that they would.
CARLSON: Well, that's an interesting point. And you know, I'm not pushing thinness on anybody either, but I also resent the idea of government pushing employees on companies that don't want them. I mean, shouldn't the Jazzercise company have a right to decide who it hires? If it doesn't want a fat Jazzercise instructor, shouldn't it be their choice not to hire one?
WANN: When people like Jennifer Portnick stand up for themselves, they're saying, "Judge me on my merits, not my measurements." And I think that's like any other civil rights issue. We want people of all different heights and weights and colors and descriptions to be able to contribute fully to our society. And if Americans are, some of us fat, and we're not able to contribute fully, we all suffer because of that. So I think it's a basic civil rights issue.
BEGALA: Mr. Boortz, I want you to pick up. Tucker said government shouldn't force companies to hire people they don't want to hire. Well, we have civil rights laws in this country. First off, let's agree with that. Do you support the laws that say you can't fire someone because of their race?
BOORTZ: Let's also agree that it is really demeaning to those people who have fought for true civil rights to have their fight compared to the fight of overweight megabar babes to be Jazzercise instructors.
BEGALA: Mr. Boortz, you support laws then, right? Do you support laws that say we will force companies to hire qualified people who are black. ...
BOORTZ: Oooh, Paul, you said qualified. This girl is not qualified.
BEGALA: You just won't tell me the answer. Just answer yes or no.
BOORTZ: Oh, I'm sorry, yes.
BEGALA: Do you support our civil rights laws?
BOORTZ: In some -- for some civil rights, yes. For honest civil rights, not the right to be a lard butt and lead an exercise class.
BEGALA: Well, I know you're talking about Rush Limbaugh now when you say that, who's another of your competitors.
BOORTZ: The man lost weight.
BEGALA: He didn't gain intelligence. Let me ask you. Why is weight different? If it is an immutable characteristic, right, something you can't change. For a whole lot of people, they really can't. They could work out like this woman did and still be overweight. Any more than she can change her waist, she can't really change her body type.
BOORTZ: Oh come on. Don't -- Paul, that is absolutely incorrect. It's in my genes. Well, obviously she has a lot in her jeans, but she can do something about it. She chooses not to.
BEGALA: What can she do?
BOORTZ: If you followed her through a grocery store, it would be white bread, frozen pizzas, Breyers ice cream, the whole bit. And then, let me ask you this. Let's say that you're running Clairol, and you want to hire a spokesperson for Clairol. And some woman walks in, and her face looks like it caught on fire and they put it out with a fork. She has a horrible complexion. Are you going to hire her to advertise your cosmetics?
CARLSON: OK, before Paul can answer that question, thereby torpedoing his own career here on CNN, Marilyn Wann, let me ask you a question. Now there are a lot of things I can't be that I'd like to be. I know I couldn't be a jockey. I can't be a basketball player. I can't be a sumo wrestler. I can't be a Playboy bunny -- not that I want to be -- but I can't be all those things because I'm not physically qualified, innately qualified to do them. I'm not suing anybody over it. It's just a fact. There are a lot of jobs that have physical qualifications. And Jazzercise instructor is one of them.
WANN: Absolutely. And Jazzercise has reiterated, I'm not speaking for them, but they do have a list of physical qualifications for this job. Fit appearance used to be a qualification. And now, they no longer choose to enforce it, thanks to Jennifer Portnick, because they realized it was an aesthetic choice, rather than a fitness choice. Now certainly, if you're hiring a model, you get to use aesthetic criteria. But for a job that only requires physical competency, again, judge us based on our merits, not our measurements.
CARLSON: Well, but wait a second.
WANN: Jennifer Portnick does six classes of aerobics a week, some of them back to back. She can lead an aerobics class. I take her class. It's great.
CARLSON: Well, leaving aside the Orwellian question of who ought to be deciding what you can and cannot do, my question is -- I mean, let's be honest here. Every Jazzercise instructor is, in essence, a model for the company. I mean, just, you know, just as every employee who interacts with the public is a model for his or her company, a Jazzercise instructor sells the product. People see an instructor -- a person has a marvelous body, etc., etc. I want that. I want to join Jazzercise. You know that that's true.
WANN: I think Jazzercise has a huge opportunity here to have all kinds of people represent them. Some people may want a very thin aerobics instructor, and they'll be drawn to that. Some people may want an aerobics instructor who inspires them because they look just like they do, average or above-average size. So by being inclusive and by having diversity in their instructors, they actually can appeal to far more people and make more money.
BEGALA: And Neal, not only is there good market reason to do it, but she's qualified. She had a certificate from the Aerobics and Fitness Association of America. As Marilyn said, she did six classes a week.
BOORTZ: Oh wow. And what sort of a SAT grade do you need to get into that school?
BEGALA: No, you need to jump around for an hour. And she's able to do that. That's the qualification.
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